24472 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 93 

[EPA–HQ–OAR–2006–0612; FRL–8303–9] 

RIN 2060–AN82 

Transportation Conformity Rule 

Amendments to Implement Provisions 

Contained in the 2005 Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy 

for Users (SAFETEA–LU) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In this action EPA is 

proposing to amend the transportation 

conformity rule to make it consistent 

with Clean Air Act section 176(c) as 

amended by SAFETEA–LU, which was 

signed into law on August 10, 2005 

(Pub. L. 109–59). The Clean Air Act 

requires federally supported 

transportation plans, transportation 

improvement programs, and projects to 

be consistent with (‘‘conform to’’) the 

purpose of the state air quality 

implementation plan. To make the transportation 

conformity rule consistent with 

SAFETEA–LU’s revisions to the Clean 

Air Act, this proposal would change the 

regulations to reflect that the statute 

now provides more time for state and 

local governments to meet conformity 

requirements, provides a one-year grace 

period before the consequences of not 

meeting certain conformity 

requirements apply, allows the option of 

shortening the timeframe conformity 

determinations, and streamlines other 

provisions. EPA is also including other proposals 

not related to SAFETEA–LU, such as a 

proposal to allow the Department of 

Transportation (DOT) to make 

categorical hot-spot findings for 

appropriate projects in carbon 

monoxide areas. EPA has consulted 

with DOT, and they concur with this 

proposal. 

DATES: Comments must be received on 

or before June 1, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2006–0612, by one of the 

following methods: <bullet≤ www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

<bullet≤ E-mail: a-and-rdocket@epa.gov. <bullet≤ Fax: (202) 566–1741. 

<bullet≤ Mail: Air Docket, 

Environmental Protection Agency, 

Mailcode: 6102T, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, 

Attention Docket ID No. EPA–HQ– 

OAR–2006–0612. Please include two 

copies. <bullet≤ Hand Delivery: EPA Docket 

Center, EPA/DC, EPA West Building, 

Room 3334, 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. Please 

include two copies. Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2006– 

0612. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, 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 www.regulations.gov 

or e-mail. The www.regulations.gov 

Web site is an ‘‘anonymous access’’ 

system, 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 www.regulations.gov, 

your e-mail 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 the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to Section I.C. 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., 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, 

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, 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. Frequency of Conformity Determinations 

IV. Deadline for Conformity Determinations 

When a New Budget Is Established 

V. Lapse Grace Period 

VI. Timeframes for Conformity 

Determinations 

VII. Conformity SIPs 

VIII. Transportation Control Measure 

Substitutions and Additions 

IX. Categorical Hot-spot Findings for Projects 

in Carbon Monoxide Nonattainment and 

Maintenance Areas 

X. Deletion of Regulation 40 CFR 

93.109(e)(2)(v) 

XI. Miscellaneous Revisions 

XII. 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). 

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Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24473 

1 40 CFR 93.102(b)(1) defines PM2.5 and PM10 as 

particles with an aerodynamic diameter less than or 

equal to a nominal 2.5 and 10 micrometers, 

respectively. 

Category Examples of regulated entities 

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 proposal. This table lists 

the types of entities of which EPA is 

aware that potentially could be 

regulated by the transportation 

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 40 CFR 

93.102. 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 this information to EPA 

through www.regulations.gov or e-mail. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD– 

ROM that you mail to EPA, 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 claimed as CBI. In 

addition to one complete version of the 

comment that includes 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. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

<bullet≤ Identify the rulemaking by 

docket number and other identifying 

information (subject heading, Federal 

Register date and page number). 

<bullet≤ 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. 

<bullet≤ Explain why you agree or 

disagree, suggest alternatives and 

substitute language for your requested 

changes. 

<bullet≤ Describe any assumptions 

and provide any technical information 

and/or data that you used. 

<bullet≤ If you estimate potential 

costs or burdens, explain how you 

arrived at your estimate in sufficient 

detail to allow for it to be reproduced. 

<bullet≤ Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

<bullet≤ Explain your views as clearly 

as possible, avoiding the use of 

profanity or personal threats. 

<bullet≤ 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 Can I Get Copies of This 

Proposed Rule and Other Documents? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2006–0612. You can 

get a paper copy of this Federal Register 

document, as well as the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action 

at the official public docket. See 

ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register 

document electronically through EPA’s 

Transportation Conformity Web site at 

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

stateresources/transconf/index.htm. 

You may also access this document 

electronically under the Federal 

Register listings at http://www.epa.gov/ 

fedrgstr/. 

An electronic version of the official 

public docket is available through 

www.regulations.gov. You may use 

www.regulations.gov 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 electronic public 

docket. Information claimed as CBI and 

other information for which disclosure 

is restricted by statute is not available 

for public viewing in the electronic 

public docket. EPA’s policy is that 

copyrighted material will not be placed 

in the 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 the 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 the 

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 the electronic public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to the electronic public 

docket. Public comments that are 

mailed or delivered to the docket will be 

scanned and placed in the electronic 

public docket. Where practical, physical 

objects will be photographed, and the 

photograph will be placed in the 

electronic public docket along with a 

brief description written by the docket 

staff. 

For additional information about the 

electronic public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

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 

or contribute to new air quality 

violations, worsen existing violations, or 

delay timely attainment of the relevant 

national ambient air quality standards 

(NAAQS or ‘‘standards’’). 

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24474 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

B. History of the Transportation 

Conformity Rule 

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 amendments to the rule both 

before and after the 1997 amendments. 

On July 1, 2004, EPA published a 

final rule (69 FR 40004) that amended 

the conformity rule to accomplish three 

objectives. The final rule: <bullet≤ Provided conformity 

procedures for state and local agencies 

under the 8-hour ozone and PM2.5

standards; 

<bullet≤ Incorporated existing EPA 

and U.S. Department of Transportation 

(DOT) federal guidance into the 

conformity rule consistent with a March 

2, 1999, U.S. Court of Appeals decision; 

and 

<bullet≤ Streamlined and improved 

the conformity rule. On May 6, 2005, EPA promulgated a 

final rule entitled, ‘‘Transportation 

Conformity Rule Amendments for the 

New PM2.5 National Ambient Air 

Quality Standard: PM2.5 Precursors’’ (70 

FR 24280). This final rule specified 

transportation-related PM2.5 precursors 

and when they apply in transportation 

conformity determinations in PM2.5

nonattainment and maintenance areas. 

Finally, on March 10, 2006, EPA 

promulgated a final rule (71 FR 12468) 

that established the criteria for 

determining which transportation 

projects must be analyzed for local 

particulate matter emissions impacts in 

PM2.5 and PM10 nonattainment and 

maintenance areas. This rule established 

requirements in PM2.5 areas and revised 

existing requirements in PM10 areas. 

C. Why Are We Issuing This Proposed 

Rule? 

On August 10, 2005, the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) was signed into 

law (Pub. L. 109–59). SAFETEA–LU 

section 6011 amended Clear Air Act 

section 176(c) by: <bullet≤ Changing the required 

frequency of transportation conformity 

determinations from three years to four 

years; <bullet≤ Providing two years to 

determine conformity after new SIP 

motor vehicle emissions budgets are 

either found adequate, approved or 

promulgated; 

<bullet≤ Adding a one-year grace 

period before the consequences of a 

conformity lapse apply; <bullet≤ Providing an option for 

reducing the time period addressed by 

conformity determinations; <bullet≤ Streamlining requirements 

for conformity SIPs; and <bullet≤ Providing procedures for 

areas to use in substituting or adding 

transportation control measures (TCMs) 

to approved SIPs. SAFETEA–LU section 6011(g) 

requires that EPA revise the 

transportation conformity rule as 

necessary to address the new statutory 

provisions no later than August 10, 

2007. Today’s proposed rule addresses 

the relevant changes that SAFETEA–LU 

made to the Clean Air Act. 

In response to the revised statutory 

requirements, on February 14, 2006, 

EPA and DOT issued joint interim 

guidance to provide areas that are 

subject to transportation conformity 

with guidance on implementing the 

changes. This guidance, as well as 

additional information on the 

transportation conformity rule and 

associated guidance, can be found on 

EPA’s Web site at: http://www.epa.gov/ 

otaq/stateresources/transconf/ 

index.htm. 

EPA has consulted with DOT on the 

development of this proposed rule, and 

DOT concurs with its content. EPA has 

also met with transportation and 

environmental organizations to discuss 

this rulemaking. The proposal reflects 

our consideration of the comments that 

we received through these stakeholder 

discussions. Documentation of these 

stakeholder meetings and items 

discussed are included in the docket for 

this rulemaking. 

III. Frequency of Conformity 

Determinations 

A. Proposal 

EPA proposes to change §

93.104(b)(3) to require that the MPO and 

DOT determine conformity of a 

transportation plan at least every four 

years, and § 93.104(c)(3) to require that 

the MPO and DOT determine 

conformity of a transportation 

improvement program (TIP) at least 

every four years. 

B. Rationale 

These proposed changes to § 93.104 

are necessary to make the conformity 

regulation consistent with the law. In 

SAFETEA–LU, Congress amended Clean 

Air Act section 176(c)(4)(D)(ii) to 

require that conformity be determined 

with a frequency of four years, unless 

the MPO decides to update its 

transportation plan or TIP more 

frequently, or the MPO is required to 

determine conformity in response to a 

trigger (see Section IV.). The Clean Air 

Act previously required transportation 

plan and TIP conformity to be 

determined every three years. These 

Clean Air Act provisions have been in 

effect as of August 10, 2005. 

C. Overlap With Transportation 

Planning Frequency Requirements 

It is important to note how today’s 

proposal would interact with the 

implementation of SAFETEA–LU’s 

transportation planning requirements, 

although this proposal would not 

amend those requirements. In addition 

to changing the required frequency of 

conformity determinations from at least 

every three years to every four years, 

SAFETEA–LU also changed the 

required frequency for updating 

transportation plans and TIPs for 

transportation planning purposes. Prior 

to SAFETEA–LU, transportation plans 

in nonattainment and maintenance 

areas had to be updated every three 

years and TIPs updated every two years; 

now both transportation plans and TIPs 

must be updated every four years in 

these areas. However, MPOs can 

voluntarily update their transportation 

plans and TIPs more frequently. 

Consequently, conformity may still need 

to be determined more frequently than 

every four years, because an updated or 

amended transportation plan or TIP still 

must conform before it is adopted, 

regardless of the last time a conformity 

determination was done. 

In addition, section 6001(b) of 

SAFETEA–LU requires DOT to issue 

guidance on a schedule for 

implementing SAFETEA–LU’s 

transportation planning provisions, and 

specifically states, ‘‘The Secretary shall 

not require a State or metropolitan 

planning organization to deviate from 

its established planning update cycle to 

implement changes’’ made by 

SAFETEA–LU prior to July 1, 2007. The 

DOT guidance, which is available at 

http://www.fhwa.dot.gov/hep/ 

legreg.htm, provides information on the 

development of transportation plans 

and TIPs prior to and on/after July 1, 

2007, as part of SAFETEA–LU 

implementation. Conformity 

determinations continue to be required 

when such updates are made, as well as 

for any other amendments to the 

transportation plan and TIP made midcycle, unless the amendment merely 

adds or deletes exempt projects (see 40 

CFR 93.104(b)(2) and (c)(2)). Further 

discussion of the implementation of the 

SAFETEA–LU update cycles can also be 

found in DOT’s February 14, 2007, final 

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Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24475 

rulemaking on metropolitan and 

statewide transportation planning (72 

FR 7224). 

EPA’s proposal does not change other 

details for implementing conformity and 

planning frequency requirements. Both 

the transportation planning update 

clock and the conformity update clock 

continue to be reset on the date of the 

FHWA and FTA conformity 

determination for the respective 

transportation plan and/or TIP. For 

more information, see DOT’s May 25, 

2001, guidance, available at http:// 

www.fhwa.dot.gov/environment/ 

conformity/planup—m.htm. 

D. Related Proposed Change: 

Consequences of a Control Strategy SIP 

Disapproval 

1. Proposal 

EPA is proposing to revise §

93.120(a)(2) to allow projects in the 

conforming TIP, rather than the first 

three years of the conforming 

transportation plan and TIP, to proceed 

after final EPA disapproval of a control 

strategy SIP without a protective 

finding, i.e., when a conformity freeze 

occurs. 

2. Rationale 

EPA is proposing this minor change to 

be consistent with general 

implementation of SAFETEA–LU. Since 

1997, the conformity rule has allowed 

projects in the first three years of the 

conforming transportation plan and TIP 

to proceed when a control strategy SIP 

is disapproved without a protective 

finding. EPA’s rationale for allowing 

projects from the first three years of the 

transportation plan and TIP to proceed 

was that previous statutory provisions 

required TIPs to address a duration of 

three years. See the proposed rule of 

July 9, 1996, (61 FR 36124–6), and the 

final rule of August 15, 1997, (62 FR 

43796–7) for this discussion. 

SAFETEA–LU section 6001(a) revised 

DOT’s metropolitan planning 

requirements by extending the duration 

of TIPs from three years to four years. 

Therefore, EPA believes that it is 

appropriate to revise § 93.120(a)(2) to 

take into account the revised duration of 

TIPs. As we stated in the 1996 proposed 

and 1997 final conformity rules, EPA 

believes that aligning the requirements 

of § 93.120(a)(2) with the duration of 

the TIP provides the right balance 

between the competing objectives of 

minimizing new transportation 

commitments after a SIP disapproval 

and minimizing disruption to the 

transportation planning process. 

Instead of changing ‘‘three years’’ to 

‘‘four years’’ in the proposed regulatory 

text, EPA simply proposes to allow a 

project to proceed during a freeze if it 

is included in the conforming TIP. EPA 

is generalizing this language in order to 

account for the transition to new 

SAFETEA–LU planning requirements, 

because some MPOs will have threeyear TIPs prior to developing four-year 

TIPs for SAFETEA–LU. 

However, this proposed general 

language is not intended to change other 

rule requirements. Although EPA’s 

proposed change to § 93.120(a)(2) 

would no longer include the phrase 

‘‘conforming transportation plan,’’ the 

requirements of § 93.114 continue to 

apply. Specifically, there must still be a 

currently conforming transportation 

plan in place to approve projects during 

a conformity freeze (except as noted in 

Section V.E., below). 

IV. Deadline for Conformity 

Determinations When a New Budget Is 

Established 

A. Proposal 

EPA is proposing to revise §

93.104(e), which requires a new 

transportation plan and TIP conformity 

determination to be made after actions 

that establish a new motor vehicle 

emissions budget for conformity, also 

known as ‘‘triggers.’’ EPA is proposing 

that MPOs and DOT would have two 

years to determine conformity of a 

transportation plan and TIP when a new 

budget is established, increased from 

the current rule’s 18 months. An MPO 

and DOT must make a conformity 

determination within two years of the 

effective date of: 

<bullet≤ EPA’s finding that a motor 

vehicle emissions budget(s) 

(‘‘budget(s)’’) in a submitted SIP is 

adequate (40 CFR 93.104(e)(1)); <bullet≤ EPA’s approval of a SIP, if 

the budget(s) from that SIP have not yet 

been used in a conformity 

determination (40 CFR 93.104(e)(2)); 

and 

<bullet≤ EPA’s promulgation of a 

federal implementation plan (FIP) with 

a budget(s) (40 CFR 93.104(e)(3)). The requirement to determine 

conformity within two years of these 

triggers is not directly related to 

SAFETEA–LU’s transportation planning 

update requirements. 

B. Rationale 

The proposed change is necessary to 

make the conformity regulation 

consistent with the law. In SAFETEA– 

LU, Congress amended the Clean Air 

Act to give MPOs and DOT two years 

before conformity must be determined 

in response to one of the conformity 

triggers above. This Clean Air Act 

provision has been in effect as of August 

10, 2005. The 18-month clocks that 

started prior to August 10, 2005, were 

extended by six months by statute, 

bringing the total time of any existing 

clocks to two years. Additionally, any 

clocks started by EPA adequacy findings 

or approvals on or after August 10, 

2005, are two-year clocks. 

Prior to the passage of SAFETEA–LU, 

EPA’s regulation required conformity of 

a transportation plan and TIP to be 

determined when a new budget was 

established, but the Clean Air Act did 

not include this specific requirement. In 

the conformity regulations, EPA 

required that conformity of 

transportation plans and TIPs be 

determined within 18 months of the SIP 

or FIP triggers described above to ensure 

that new air quality information was 

introduced into the conformity process 

in a timely manner. 

With the passage of SAFETEA–LU, 

the Clean Air Act now includes the 

requirement to determine conformity of 

a transportation plan and TIP within 

two years of a trigger. The language 

added to the Clean Air Act in section 

176(c)(2)(E) closely followed EPA’s 

regulation at § 93.104(e). Therefore, 

EPA is merely proposing to align the 

deadline in § 93.104(e) with the new 

deadline under the statute. 

No change is proposed for the events 

that trigger a new conformity 

determination, because they are already 

consistent with the amendments made 

to the Clean Air Act in SAFETEA–LU. 

Though the language added to the Clean 

Air Act to describe the SIP approval 

trigger is slightly different than EPA’s 

regulation, EPA believes that 40 CFR 

93.104(e)(2) is already consistent with 

the law’s requirements without any 

other changes. 

Clean Air Act 176(c)(2)(E)(ii) states 

that conformity must be determined 

when EPA approves a SIP that 

establishes a budget ‘‘if that budget has 

not yet been determined to be adequate 

* * *’’ The regulation at 40 CFR 

93.104(e)(2) states that conformity must 

be determined when EPA approves a 

SIP that establishes a budget ‘‘if the 

budget(s) from that SIP have not yet 

been used in a conformity 

determination.’’ EPA believes this 

statement in the regulation is 

substantively the same as the law, 

because a budget from an approved SIP 

would have been used in a conformity 

determination prior to the SIP’s 

approval only if that budget had 

previously been found adequate. If a 

budget had previously been found 

adequate, a clock for that budget would 

already have started on the effective 

date of EPA’s adequacy finding, so no 

new clock would start at the time of 

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24476 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

2 Prior to July 1, 2007, MPOs can still develop 

and adopt transportation plans and TIPs consistent 

with the ‘‘pre-SAFETEA–LU’’ requirements (see 

DOT’s guidance at http://www.fhwa.dot/hep/ 

legreg.htm for more information). 3 By the phrase ‘‘meet conformity requirements,’’ 

EPA means that FHWA/FTA projects can be found 

to conform, and non-federal projects can be 

approved. 

EPA’s approval of the budget in the SIP. 

This interpretation is consistent with 

how state and local agencies have 

implemented 40 CFR 93.104(e)(1) and 

(2) for some time, and changing this 

language may cause confusion without 

adding value. EPA also notes that no change is 

necessary for the point at which the 

two-year clocks begin. As is currently 

required under the conformity rule and 

Clean Air Act, the two-year clocks begin 

on the effective date of EPA’s adequacy 

finding or the effective date of EPA’s SIP 

approval or FIP promulgation action. 

(For more details regarding the triggers, 

see Section III. of the August 6, 2002, 

final rule at 67 FR 50810 and Section 

XIX. of the July 1, 2004, final rule, at 69 

FR 40050). 

V. Lapse Grace Period 

A. Proposal 

EPA is proposing to add a one-year 

grace period before a conformity lapse 

would occur when an area misses an 

applicable deadline. The applicable 

deadlines are those that result from: 

<bullet≤ The requirements to 

determine conformity of a 

transportation plan and TIP every four 

years under § 93.104(b)(3) and §

93.104(c)(3) (see Section III.), 

<bullet≤ The requirement to 

determine conformity within two years 

of a trigger under § 93.104(e) (see 

Section IV.), and 

<bullet≤ The pre-SAFETEA–LU 

planning requirements to update a 

transportation plan every three years, 

and update a TIP every two years, 

during the transition to SAFETEA–LU’s 

four-year planning cycle for 

transportation plans and TIPs.2

EPA notes that the regulatory changes 

discussed in Section V. of this preamble 

do not impact isolated rural 

nonattainment or maintenance areas, 

because these areas do not include an 

MPO with a transportation plan or TIP 

conformity determination that would 

lapse. Isolated rural areas continue to be 

covered by the requirements in 40 CFR 

93.109(l). 

We are also proposing a new §

93.104(f), which would provide the 

rules to allow projects to meet 

conformity requirements 3 during the 

lapse grace period. <bullet≤ New § 93.104(f)(1) would 

clarify that non-exempt FHWA/FTA 

projects can be found to conform during 

the lapse grace period if they are 

included in the currently conforming 

transportation plan and TIP. <bullet≤ New § 93.104(f)(2) would 

allow non-exempt FHWA/FTA projects 

to be found to conform during the lapse 

grace period if they were included in 

the most recent conforming 

transportation plan and TIP. However, 

even though EPA proposes in §

93.104(f)(2) that a project could be 

found to conform when the 

transportation plan and TIP have 

expired, a project must also meet DOT’s 

planning requirements to receive federal 

funding or approval. Today’s rulemaking does not change 

how exempt projects and traffic signal 

synchronization projects are addressed 

under the transportation conformity 

rule. These projects are able to proceed 

during the lapse grace period, and for 

that matter during a conformity lapse, 

because exempt projects and traffic 

signal synchronization projects do not 

require project-level conformity 

determinations. EPA does not need to 

propose that exempt projects or traffic 

signal synchronization projects can 

proceed during the grace period because 

they are exempted from the requirement 

to determine conformity altogether, per 

40 CFR 93.126 and 93.128. 

In addition, EPA is also proposing to 

revise § § 93.114, 93.115, and 93.121 by 

including a reference to § 93.104(f) to 

account for the lapse grace period: <bullet≤ Section 93.114 currently 

requires that there be a currently 

conforming transportation plan and TIP 

at the time of project approval. EPA 

proposes that during the lapse grace 

period, there does not need to be a 

currently conforming plan and TIP at 

the time of project approval. However, 

EPA proposes that non-exempt projects 

must come from the most recent 

conforming transportation plan and TIP. 

(A project must also meet DOT’s 

planning requirements to receive federal 

funding or approval. See Section V.C. 

below for further discussion.) 

<bullet≤ Section 93.115 currently 

requires that non-exempt FHWA/FTA 

projects come from a conforming 

transportation plan and TIP. EPA 

proposes to add that during the lapse 

grace period, a project could come from 

the most recent conforming plan and 

TIP. (A project must also meet DOT’s 

planning requirements to receive federal 

funding or approval. See Section V.C. 

below for further discussion.) 

<bullet≤ Similarly, § 93.121 currently 

requires that regionally significant nonfederal projects either come from the 

currently conforming transportation 

plan and TIP, or the regional emissions 

analysis that supports such a 

transportation plan and TIP. EPA 

proposes to add that during the lapse 

grace period, regionally significant nonfederal projects could be approved if 

they are from the most recent 

conforming transportation plan and TIP, 

or the regional emissions analysis that 

supported the most recent conforming 

transportation plan and TIP. 

B. Rationale 

These proposed changes are necessary 

to make the conformity regulation 

consistent with the amended law and 

the intentions of Congress. In 

SAFETEA–LU, Congress amended the 

Clean Air Act to provide a one-year 

grace period before the consequences of 

a conformity lapse apply in section 

176(c)(9) and added a definition of 

‘‘lapse’’ in section 176(c)(10). The 

changes to the law have been in effect 

as of August 10, 2005. However, 

SAFETEA–LU’s addition of paragraphs 

(9) and (10) to the Clean Air Act 

conformity provisions in section 176(c) 

and today’s proposal do not affect other 

requirements not related to conformity, 

such as the statutory transportation 

planning requirements and DOT’s 

regulations that implement them. These 

other requirements are unchanged by 

the addition of Clean Air Act sections 

176(c)(9) and (10) and thus continue to 

apply during the lapse grace period. See 

Section V.C. below for further 

discussion. 

Through SAFETEA–LU, Congress 

created new Clean Air Act section 

176(c)(9) to provide a one-year grace 

period before the consequences of a 

conformity lapse apply. This section 

states that if a conformity determination 

for a transportation plan or TIP ‘‘is not 

made by an applicable deadline and 

such failure is not corrected * * * within 

12 months after such deadline * * *, the 

transportation plan shall lapse.’’ 

Congress also added a statutory 

definition for the word ‘‘lapse’’ in Clean 

Air Act section 176(c)(10) which states, 

‘‘the term ‘lapse’ means that the 

conformity determination for a 

transportation plan or transportation 

improvement program has expired, and 

thus there is no currently conforming 

transportation plan or transportation 

improvement program.’’ This statutory 

definition is generally consistent with 

EPA’s existing definition of the word 

‘‘lapse’’ in 40 CFR 93.101. 

EPA concludes from these two Clean 

Air Act paragraphs that the conformity 

status of a transportation plan and TIP 

does not lapse for 12 months from an 

applicable deadline. Thus, as long as 

they are still valid in terms of meeting 

other federal requirements, the 

transportation plan and TIP continue to 

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4 Joint Explanatory Statement of the Committee 

of Conference, ‘‘Section 6011, Transportation 

Conformity,’’ p. 1060. 

exist as the currently conforming 

transportation plan and TIP during the 

lapse grace period. 

Through § 93.104(f)(1), EPA proposes 

that projects from the currently 

conforming transportation plan and TIP 

(or regional emissions analysis) can be 

found to conform during the lapse grace 

period. Clean Air Act section 

176(c)(2)(C)(i) states, 

a transportation project may be adopted or 

approved by a metropolitan planning 

organization or any recipient of funds 

designated under title 23 or chapter 53 of 

title 49, or found in conformity by a 

metropolitan planning organization or 

approved, accepted, or funded by the 

Department of Transportation only if it meets 

either the requirements of subparagraph (D) 

or the following requirements— 

(i) such a project comes from a conforming 

plan and program. 

Similarly, the existing language in Clean 

Air Act section 176(c)(2)(D) and §

93.121(a) allows regionally significant 

non-federal projects in metropolitan and 

donut areas to proceed during the lapse 

grace period if they are from a currently 

conforming transportation plan and TIP 

(or regional emissions analysis). 

In the case where during the lapse 

grace period, the transportation plan or 

TIP expire (i.e., the transportation plan 

or TIP has reached the end of the 

transportation planning cycle and has 

not yet been updated), EPA believes that 

Clean Air Act sections 176(c)(2)(C)(i) 

and (D) are ambiguous in light of the 

addition of sections 176(c)(9) and (10). 

EPA proposes in § 93.104(f)(2) that nonexempt FHWA/FTA projects and 

regionally significant non-federal 

projects from the most recent 

conforming transportation plan and TIP 

(or regional emissions analysis) can 

meet conformity requirements during 

the lapse grace period, based on our 

reading of Congressional intent. (As 

discussed in C. of this section, although 

EPA interprets the added paragraphs (9) 

and (10) of Clean Air Act 176(c) to allow 

projects to meet conformity 

requirements without a currently 

conforming transportation plan and TIP, 

a project must also meet DOT’s planning 

requirements to receive federal funding 

or approval.) 

EPA believes the statute is ambiguous 

in the case where the transportation 

plan or TIP expires because on its face, 

Clean Air Act sections 176(c)(2)(C)(i) 

and (D) require a conforming 

transportation plan and TIP to be in 

place for a project to meet conformity 

requirements. 

However, by adding sections 176(c)(9) 

and (10) to the Clean Air Act in 

SAFETEA–LU, Congress clearly meant 

to give areas the ability for 

transportation projects to meet 

conformity requirements when 

transportation plan and TIP conformity 

is not determined on time. Part of the 

definition of ‘‘lapse’’ in Clean Air Act 

section 176(c)(10) is that ‘‘there is no 

currently conforming transportation 

plan or TIP.’’ An area that has a 

conforming transportation plan and TIP 

is not in a lapse and thus would have 

no need of a lapse grace period. 

If the requirement to have a 

conforming transportation plan and TIP 

in place for projects to meet conformity 

requirements still had to apply during 

the lapse grace period, the lapse grace 

period could only be used in certain 

cases. The lapse grace period could not 

be used at all in the case when a lapse 

occurs because an area’s transportation 

plan or TIP expires. 

SAFETEA–LU has made the required 

frequency of transportation plan 

updates, TIP updates, and conformity 

determinations to be the same. EPA 

believes that in the future, four-year 

transportation plan and TIP update 

cycles will likely expire at the same 

time as a four-year conformity deadline, 

because transportation plans and TIP 

must conform when they are adopted. 

Therefore, if projects could not meet 

conformity requirements during the 

lapse grace period because the 

transportation plan or TIP expired, (i.e., 

there ceases to be a currently 

conforming transportation plan or TIP), 

the effect of the lapse grace period in 

these cases would be nil. In effect, if 

Clean Air Act sections 176(c)(2)(C)(i) 

and (D) must apply during the lapse 

grace period in all cases, the lapse grace 

period could rarely be used in practice. 

Because the statute is ambiguous in 

this case, EPA turns to the legislative 

history to clarify Congressional intent. 

The SAFETEA–LU conference report 

language states: 

During the 12-month grace period, only 

transportation projects in the most recent 

conforming plan and TIP could be funded or 

approved until the required determinations 

are made pursuant to Section 176(c) of the 

Clean Air Act.4

The report language says that projects 

from the ‘‘most recent conforming plan 

and TIP’’ can be funded or approved 

during the lapse grace period. It does 

not say that a currently conforming 

transportation plan and TIP need to be 

in place at the time of project approval. 

EPA concludes from this language that 

Congress meant to allow conformity 

requirements to be met for projects 

during the lapse grace period even if 

there is no conforming transportation 

plan and TIP at that time. 

In other words, based on the 

legislative history, EPA interprets the 

lapse grace period established in Clean 

Air Act section 176(c)(9) as a time 

where the Clean Air Act section 

176(c)(2)(C)(i) and (D) requirements for 

a project to come from a currently 

conforming transportation plan and TIP 

(or regional emissions analysis) could be 

met if the project comes from the most 

recent conforming transportation plan 

and TIP (or regional emissions analysis). 

In sum, the addition of Clean Air Act 

section 176(c)(9) allows a project to 

meet conformity requirements during 

the grace period as long as the project 

was in the ‘‘most recent conforming 

plan and TIP’’ (or in the regional 

emissions analysis that supported the 

most recent conforming transportation 

plan and TIP) prior to the start of the 

lapse grace period. 

Note, however, that EPA believes this 

conclusion only applies to 

transportation conformity—what 

Congress included in section 176(c) of 

the Clean Air Act and discussed in its 

report language referenced above 

pertain only to transportation 

conformity requirements, not to DOT’s 

transportation planning requirements. 

DOT and EPA agree that planning 

requirements still must be met during 

the lapse grace period in order for DOT 

to fund or approve a project as 

discussed further in C. of this section. 

Finally, EPA believes that today’s 

proposal would be consistent with the 

Clean Air Act’s general goals to ensure 

that the air quality impacts of projects 

are considered prior to meeting 

conformity requirements. These goals 

are accomplished by ensuring that the 

regional and localized emissions 

impacts of projects have been 

considered prior to meeting conformity 

requirements. Again, in order for a 

project to meet conformity requirements 

during the lapse grace period, the 

project’s regional emissions impacts 

would have already been considered in 

the conformity determination for the 

current or most recent transportation 

plan and TIP. Project-level conformity 

requirements—including any applicable 

hot-spot requirements—must also be 

met during the lapse grace period. 

C. How Does the Grace Period Work in 

Practice? 

The one-year conformity lapse grace 

period begins when the conformity 

determination required for a 

transportation plan or TIP is not made 

by the applicable deadline. As described 

above, during the grace period, a project 

may meet conformity requirements as 

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5 For example, an MPO may want to amend its 

TIP before the transportation plan expires to allow 

projects from the fifth year of the transportation 

plan to proceed during the lapse grace period. The 

conformity determination for such an amended TIP 

would have to be made before the lapse grace 

period begins, but the determination could rely on 

the previous regional emissions analysis as long as 

the requirements of 40 CFR 93.122(g) are met. 

6 This one-year grace period for newly designated 

areas most recently applied to the areas designated 

for the 8-hour ozone and PM2.5 standards. All of 

these metropolitan areas have at this point 

determined transportation plan/TIP conformity. 

7 Such disapprovals occur infrequently; EPA has 

only disapproved SIPs without a protective finding 

in three instances since the 1997 conformity rule 

was promulgated. 

long as it was included in either the 

currently conforming transportation 

plan and TIP or the most recent 

conforming transportation plan and TIP 

and other project-level conformity 

requirements are met. 

An FHWA/FTA project must also 

meet DOT’s planning requirements to 

receive federal funding or approval. 

Specifically, 23 U.S.C. 134(j)(3) and 49 

U.S.C. 5303(j)(3) require a TIP to be in 

place and 23 U.S.C. 135(g)(4) and 49 

U.S.C. 5304(g)(4) require a statewide TIP 

(STIP) to be in place for DOT to 

authorize transportation projects. The 

STIP contains all of the metropolitan 

area TIPs in the state. 

Three specific scenarios are presented 

below to show how expiration of the 

transportation plan and/or STIP/TIP at 

the time of the missed deadline affects 

the ability to advance FHWA/FTA 

projects during the lapse grace period. 

These scenarios are consistent with 

those highlighted in EPA and DOT’s 

joint February 14, 2006, guidance 

entitled, ‘‘Interim Guidance for 

Implementing the Transportation 

Conformity Provisions in the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU).’’ 

Scenario 1: If the transportation plan has 

expired, but the STIP/TIP are still in effect, 

FHWA/FTA can continue to authorize and 

take action on projects in the STIP/TIP 

throughout the duration of the grace period 

or the duration of the STIP/TIP, whichever is 

shorter. The TIP and affected portion of the 

STIP cannot be amended once the 

transportation plan expires. Prior to 

transportation plan expiration, an MPO and 

state should ensure that the STIP/TIP include 

the desired projects from the transportation 

plan to continue to operate during the 

conformity lapse grace period.5

Scenario 2: If the transportation plan is 

still in effect, but the STIP/TIP have expired, 

FHWA/FTA cannot authorize FHWA/FTA 

projects. In order to advance projects, a new 

STIP/TIP would have to be developed that 

contains only projects that are consistent 

with the transportation plan. A conformity 

determination would have to be made for the 

new TIP unless it includes only exempt 

projects, traffic signal synchronization 

projects, or TCMs in an approved SIP. For 

example, if a new TIP included a non-exempt 

project from later years of the transportation 

plan, the new TIP would require a 

conformity determination. (However, the 

determination could rely on the previous 

regional emissions analysis as long as the 

requirements of 40 CFR 93.122(g) are met.) 

Scenario 3: If both the transportation plan 

and the STIP/TIP have expired, FHWA/FTA 

will not authorize projects under the 

planning regulations. 

Regardless of the scenario, in addition 

to transportation planning requirements, 

project-level conformity requirements 

must also be met during the lapse grace 

period including any required hot-spot 

analysis. Refer to the Table 1 in 40 CFR 

93.109 for the conformity criteria and 

procedures that apply to projects. 

D. Newly Designated Nonattainment 

Areas 

The new lapse grace period provision 

in Clean Air Act section 176(c)(9) does 

not apply to the deadline for newly 

designated nonattainment areas to make 

the initial transportation plan/TIP 

conformity determination within 12 

months of the effective date of the 

nonattainment designation. The new 

grace period in Clean Air Act section 

176(c)(9) applies prior to when a lapse 

occurs, and Clean Air Act section 

176(c)(10) and 40 CFR 93.101 define the 

term lapse to mean that the conformity 

determination for a transportation plan 

or TIP has expired. Therefore, the lapse 

grace period does not apply unless an 

area has already had a conforming 

transportation plan and TIP that has 

expired; it does not apply to a newly 

designated area that has not yet made its 

initial conformity determination for a 

transportation plan and TIP for a new 

pollutant or air quality standard. 

Although the lapse grace period does 

not apply to newly designated areas, 

these areas already have similar existing 

flexibility because Clean Air Act section 

176(c)(6) and 40 CFR 93.102(d) give 

newly designated areas one year before 

conformity applies, starting from the 

effective date of final nonattainment 

designation.6

Although the statutory and regulatory 

definitions of lapse do not apply to 

newly designated areas, once 

conformity applies, the identical 

restrictions of a conformity lapse will 

exist for any newly designated 

nonattainment area that does not have a 

conforming transportation plan and TIP 

in place one year after the effective date 

of EPA’s designation. EPA and DOT will 

continue to use the term ‘‘lapse’’ 

informally to describe these situations. 

E. Conformity Freezes 

EPA also notes in the preamble to 

today’s proposal the interaction of 

conformity lapse grace periods and 

conformity freezes. A conformity freeze 

occurs if EPA disapproves a control 

strategy SIP without a protective finding 

for the budgets in that SIP (see §

93.120(a)(2)).7 During a freeze, some 

projects can be advanced, but the area 

cannot adopt a new transportation plan 

or TIP until a new SIP is submitted with 

budgets that EPA approves or finds 

adequate. If conformity of a 

transportation plan and TIP has not 

been determined using a new control 

strategy SIP with budgets that EPA 

approves or finds adequate within two 

years of EPA’s SIP disapproval, highway 

sanctions apply (under Clean Air Act 

section 179(b)(1)) and the freeze 

becomes a lapse. 

Under today’s proposal, the lapse 

grace period would apply during a 

freeze only if the transportation plan/ 

TIP expire before highway sanctions 

apply. The lapse grace period would 

apply in this case because the grace 

period applies when an area misses an 

applicable deadline to determine 

conformity for the transportation plan 

and TIP. The transportation plan and 

TIP would remain in a freeze even once 

the lapse grace period begins, and 

would remain frozen until either a 

conformity determination is made to 

new adequate or approved SIP budgets 

as described above, or highway 

sanctions apply. 

An area that is in a conformity freeze 

and subsequently enters the lapse grace 

period would lapse at the end of the 

grace period (one year after the missed 

deadline), or when highway sanctions 

apply, whichever comes first. As 

described above, however, a project 

must also meet DOT’s planning 

requirements to receive federal funding 

or approval during the lapse grace 

period. 

If a freeze becomes a lapse because 

two years transpired from the effective 

date of EPA’s disapproval of the SIP 

(when highway sanctions are applied), 

the area cannot use the lapse grace 

period. A lapse that occurs because two 

years have transpired since EPA’s 

disapproval of a SIP is not a lapse that 

results from missing an applicable 

deadline to determine conformity. Thus, 

the lapse grace period would not apply 

by its own terms in this circumstance. 

VI. Timeframes for Conformity 

Determinations 

A. Overview 

One of the changes Congress made via 

SAFETEA–LU was to add a new 

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8 The amendment to the Clean Air Act that allows 

areas to shorten the timeframe of conformity 

determinations, Clean Air Act section 176(c)(7), 

requires the MPO to consult with ‘‘the air pollution 

control agency’’ and defines this term in paragraph 

(E) to mean ‘‘an air pollution control agency (as 

defined in section 302(b)) that is responsible for 

developing plans or controlling air pollution within 

the area covered by a transportation plan.’’ Clean 

Air Act section 302(b) states, ‘‘The term ‘‘air 

pollution control agency’’ means any of the 

following’’ and lists several kinds of agencies. 

Because the statute says the term means ‘‘any’’ of 

the listed agencies rather than all of them, EPA 

believes the term refers to the relevant state and 

local air quality agencies. In the transportation 

conformity process, the relevant agencies are the 

state and local air quality agencies that have always 

participated in the consultation process, pursuant 

to Clean Air Act section 176(c)(4)(D)(i). Therefore, 

EPA is using the term ‘‘state and local air agencies’’ 

in this preamble and proposed rule, consistent with 

CAA 176(c)(4)(D)(i) and 40 CFR 93.105. 

paragraph (7) to Clean Air Act section 

176(c), which provides MPOs the option 

to elect to shorten the period of time 

addressed by their transportation plan/ 

TIP conformity determinations, or 

‘‘timeframe.’’ Prior to this change, every 

conformity determination for a 

transportation plan and TIP has had to 

cover the entire timeframe covered by 

the transportation plan. Transportation 

plans cover a period of 20 years or 

longer. Because of the requirement to 

determine conformity of the entire 

transportation plan, the last year of the 

transportation plan has had to be 

analyzed in all transportation plan or 

TIP conformity determinations, as well 

as other earlier years in the timeframe 

of the transportation plan. 

Under the amended Clean Air Act, an 

MPO demonstrates conformity for the 

entire timeframe of the transportation 

plan unless the MPO elects to shorten 

the conformity timeframe. An election 

to shorten the conformity timeframe 

could be made only after consulting 

with the state and local air quality 

agencies 8 and soliciting public 

comment and considering such 

comments. If an MPO makes this 

election, the conformity determination 

does not have to cover the entire length 

of the transportation plan, but in some 

cases an informational analysis is also 

required. 

This provision giving areas the option 

to shorten their conformity timeframe 

took effect on August 10, 2005, when 

SAFETEA–LU became law. Note, 

however, that transportation plan/TIP 

conformity determinations must cover 

the entire length of the transportation 

plan unless an election is made to 

shorten the timeframe. 

We are proposing to make several 

changes in the regulatory language. For 

some aspects of this provision, we have 

proposed more than one alternative. 

EPA’s proposals for implementing this 

new Clean Air Act provision are 

organized as follows: 

<bullet≤ Proposal for MPOs in areas 

that do not have an adequate or 

approved second maintenance plan 

(Section VI.B.). 

<bullet≤ Proposal for MPOs in areas 

with adequate or approved second 

maintenance plans (Section VI.C.). 

<bullet≤ Proposal for how elections 

are made to either shorten the 

conformity timeframe, or revert to the 

original conformity timeframe once the 

timeframe has been shortened (Section 

VI.D.). 

<bullet≤ Proposal for isolated rural 

areas (Section VI.E.). 

<bullet≤ Proposal for conformity 

implementation under a shortened 

conformity timeframe, including which 

years must be analyzed (Section VI.F.). 

EPA solicits comments for all of these 

proposals as well as other information 

that would improve the implementation 

of the final rule. 

B. Timeframe Covered by Conformity 

Determinations in Areas Without 

Second Maintenance Plans 

1. Proposal for Metropolitan Areas 

EPA is proposing that transportation 

plan and TIP conformity determinations 

would cover the timeframe of the 

transportation plan, unless an MPO 

elects to shorten the timeframe. In areas 

without an adequate or approved 

second maintenance plan (i.e., a 

maintenance plan addressing Clean Air 

Act section 175A(b)), a shortened 

conformity determination would 

address the longest of the following 

timeframes: 

<bullet≤ The first 10-year period of 

the transportation plan; 

<bullet≤ The latest year in the SIP (or 

FIP) applicable to the area that contains 

a motor vehicle emission budget; or 

<bullet≤ The year after the completion 

date of a regionally significant project if 

the project is included in the TIP, or the 

project requires approval before the 

subsequent conformity determination. 

EPA is proposing in § 93.106 that a 

conformity determination must cover 

the longest of these three timeframes. 

Under this proposal, the MPO would 

not be able to choose which of these 

three timeframes it prefers to examine in 

the conformity determination; it would 

have to examine the longest of them. 

The MPO would have to determine 

which timeframe is the longest for each 

conformity determination, as the longest 

timeframe could change from 

determination to determination, because 

for example new budgets have been 

established or new regionally significant 

projects have been added to the TIP 

since the previous conformity 

determination. 

2. Rationale 

The proposed changes to allow MPOs 

to shorten the timeframe covered by a 

conformity determination are necessary 

to make the conformity regulation 

consistent with the law. In SAFETEA– 

LU, Congress amended the Clean Air 

Act by adding section 176(c)(7), which 

allows MPOs to elect to shorten the 

timeframe of conformity determinations. 

EPA is proposing that conformity 

determinations cover the timeframe of 

the transportation plan unless the MPO 

makes an election because Clean Air Act 

section 176(c)(7)(A) specifically states, 

‘‘Each conformity determination * * * 

shall require a demonstration of 

conformity for the period ending on 

either the final year of the transportation 

plan, or at the election of the 

metropolitan planning organization, * * 

*’’ a shorter timeframe. EPA’s proposal 

that a shortened timeframe must cover 

the longest of the three periods specified 

also comes directly from the Clean Air 

Act. Specifically, section 176(c)(7)(A) 

states that a shortened conformity 

determination must cover: 

The longest of the following periods: (i) 

The first 10-year period of any such 

transportation plan. (ii) The latest year in the 

implementation plan applicable to the area 

that contains a motor vehicle emissions 

budget. (iii) The year after the completion 

date of a regionally significant project if the 

project is included in the transportation 

improvement program or the project requires 

approval before the subsequent conformity 

determination. 

EPA has followed this statutory 

language in the proposed regulatory 

language in § 93.106. 

C. Timeframe of Conformity 

Determinations in Areas With Second 

Maintenance Plans 

1. Proposal for Metropolitan Areas 

EPA is proposing that in areas that 

have an adequate or approved 

maintenance plan under Clean Air Act 

section 175A(b), transportation plan and 

TIP conformity determinations would 

cover the timeframe of the 

transportation plan unless an MPO 

elects to shorten the timeframe. Section 

175A(b) of the Clean Air Act is the 

provision that describes the submission 

of a maintenance plan that covers the 

second ten years of the maintenance 

period. If the MPO elects to shorten the 

timeframe, transportation plan and TIP 

conformity determinations would cover 

the period of time through the end of 

the maintenance period, that is, the 

period of time covered through the 

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24480 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

second maintenance plan. This period 

of time is in contrast to the longest of 

the three periods proposed in Section 

VI.B. for areas that do not have an 

adequate or approved second 

maintenance plan. EPA has proposed 

regulatory language for shortening the 

timeframe in areas with second 

maintenance plans in § 93.106 as well. 

2. Rationale 

Our proposal for a shortened 

timeframe for metropolitan areas with 

an adequate or approved second 

maintenance plan results directly from 

the Clean Air Act as amended by 

SAFETEA–LU. Clean Air Act section 

176(c)(7)(C) states that conformity 

determinations can be made for a 

shorter timeframe ‘‘at the election of the 

metropolitan planning organization * * 

*’’ Therefore, in these areas EPA 

proposes that conformity 

determinations must cover the 

timeframe of the transportation plan 

unless an election is made. The 

proposal that the shortened timeframe 

would cover through the end of the 

second maintenance plan also results 

directly from Clean Air Act section 

176(c)(7)(c). This section specifically 

says that in areas with a second 

maintenance plan, a shortened 

conformity timeframe is ‘‘required to 

extend only through the last year of the 

implementation plan required under 

section 175(A)(b)’’ [sic] rather than the 

longest of the three periods established 

in Clean Air Act section 176(c)(7)(A). 

D. Process for Elections 

1. Proposal for Metropolitan Areas 

First, before an MPO elects to shorten 

the conformity timeframe, EPA proposes 

that it would have to consult with state 

and local air quality planning agencies, 

solicit public comment, and consider 

those comments. EPA is proposing that 

consultation with the state and local air 

agencies would occur early in the 

decision-making process. 

Second, EPA is also proposing that 

once an MPO makes an election to 

shorten the period of time addressed in 

its transportation plan/TIP conformity 

determinations, the election would 

remain in effect until the MPO elects 

otherwise. An MPO would make its 

election only once for a pollutant or 

pollutants and any relevant precursors, 

unless it chooses to elect otherwise in 

the future. 

Third, EPA is proposing two options 

for how an MPO would change a 

previous election. 

<bullet≤ Option A: Require MPOs to 

consult with the state and local air 

quality agencies, solicit public 

comments and consider such comments 

when an MPO that has elected to 

shorten the timeframe wants to revert 

back to determining conformity for the 

entire transportation plan length. 

<bullet≤ Option B: Allow the MPO to 

elect to revert to covering the entire 

length of the transportation plan 

without any additional consultation or 

public comment. 

EPA has proposed regulatory text for 

Option A but could finalize either 

option. 

Finally, EPA is proposing to place the 

requirements to consult the state and 

local air quality agencies, solicit public 

comments, and consider these 

comments when electing to shorten the 

conformity timeframe in § 93.106, with 

the rest of the regulatory language for 

shortening the timeframe. 

2. Rationale 

General process. Clean Air Act 

section 176(c)(7)(A) and (C) are the 

sections of the statute that allow 

elections to shorten the conformity 

timeframe. Both of these sections allow 

such elections to be made only ‘‘after 

consultation with the air pollution 

control agency and solicitation of public 

comments and consideration of such 

comments.’’ The Clean Air Act specifies 

consultation with the air agency and 

does not require concurrence. 

A definition of ‘‘air pollution control 

agency’’ has been added at Clean Air 

Act section 176(c)(7)(E), which states 

that this term ‘‘means an air pollution 

control agency (as defined in Section 

302(b)) that is responsible for 

developing plans or controlling 

pollution within the area covered by the 

transportation plan.’’ Clean Air Act 

section 302(b) states, ‘‘the term ‘air 

pollution control agency’ means any of 

the following’’ and lists several kinds of 

agencies. Because the statute says the 

term means ‘‘any’’ of the listed agencies 

rather than all of them, EPA believes the 

term refers to the relevant air quality 

agencies. In the transportation 

conformity process, the relevant 

agencies are the state and local air 

quality agencies that have regularly 

participated in the consultation process, 

pursuant to Clean Air Act section 

176(c)(4)(D)(i). Therefore, EPA is using 

the term ‘‘state and local air agencies’’ 

in this preamble and in our proposal for 

§ 93.106, consistent with the statute 

and 40 CFR 93.105. 

EPA believes that consultation with 

the state and local air quality agencies 

on shortening the timeframe would 

occur in the context of the normal 

interagency consultation process. EPA 

believes that for this consultation to be 

meaningful, it needs to occur at an early 

stage in the decision-making process. 

Therefore, we have proposed that 

consultation occur when the MPO 

begins to consider shortening the 

timeframe. For example, it may be 

appropriate to discuss an election to 

shorten the conformity timeframe in the 

preliminary stages of developing the 

regional emissions analysis. 

EPA is not proposing any new 

specific procedures for soliciting public 

comment. MPOs should follow their 

normal process for public participation 

regarding conformity actions for this 

election. MPOs are not required to 

revise their public participation/ 

involvement procedures required by 

SAFETEA–LU section 6001(a) to 

address public consultation on reducing 

the area’s conformity timeframe. 

MPOs are encouraged to make their 

elections prior to the start of the public 

comment period for their subsequent 

conformity determination. Making the 

election prior to the start of the public 

comment period for the subsequent 

conformity determination ensures that 

the public will understand that future 

conformity determinations will address 

a shorter period of time. However, there 

may be instances when an MPO will 

want to take public comments on the 

election to shorten the conformity 

timeframe at the same time that it is 

taking public comment on a conformity 

determination. In those cases, the 

conformity information presented to the 

public should include both a regional 

emissions analysis reflecting the 

election of a shorter timeframe and a 

regional emissions analysis that reflects 

the full length of the transportation 

plan. EPA recommends that both a 

shortened and a full-length analysis be 

included so that the MPO can complete 

its conformity determination according 

to its desired schedule, even if it 

receives negative public comment about 

shortening the timeframe. 

EPA is proposing that once an 

election to shorten the timeframe is 

made, it would remain in effect until the 

MPO elects otherwise, because that 

statement is specifically included in the 

statute. Clean Air Act section 

176(c)(7)(D) states, ‘‘Any election by a 

metropolitan planning organization 

under this paragraph shall continue to 

be in effect until the metropolitan 

planning organization elects otherwise.’’ 

Changing previous elections. EPA 

requests comment on the two options 

for the process that MPOs must follow 

if they have shortened the conformity 

timeframe and want to revert back to 

determining conformity for the full 

length of the transportation plan. EPA 

asks commenters to consider under 

what circumstances, if any, would 

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9 Donut areas are defined as ‘‘geographic areas 

outside a metropolitan planning area boundary, but 

inside the boundary of a nonattainment or 

maintenance area that contains any part of a 

metropolitan area(s)* * *’’ (40 CFR 93.101). 

consultation with state and local 

agencies and solicitation of public 

comment be warranted when reverting 

back to a full-length conformity 

timeframe. 

Option A would require MPOs to 

consult with the state and local air 

pollution control agencies, solicit public 

comment, and consider any comments 

received before reverting to a timeframe 

that covers the full length of the 

transportation plan. This approach is an 

option because Clean Air Act section 

176(c)(7)(D) states that a shortened 

timeframe remains in effect unless an 

MPO ‘‘elects otherwise.’’ In other 

instances in Clean Air Act section 

176(c)(7), an ‘‘election’’ includes 

consultation with the state and local air 

quality agencies, solicitation of public 

comment and consideration of any 

comments received. Therefore, one 

interpretation is that an election to 

revert to determining conformity for the 

entire length of the transportation plan 

should also include consultation with 

the state and local air pollution control 

agencies, solicitation of public 

comment, and consideration of those 

comments. 

On the other hand, one could argue 

that an MPO should be able to revert to 

the full timeframe without additional 

consultation with the state and local air 

quality agencies or solicitation and 

consideration of public comment, which 

is proposed under Option B. If an MPO 

wants to revert to the full timeframe, it 

is returning to the default requirement 

in Clean Air Act section 176(c)(7). One 

could argue that no additional 

consultation or public comment should 

be necessary to determine conformity 

for the full length of the transportation 

plan because that is the approach that 

has been used for conformity since 

1993. 

Furthermore, existing conformity 

requirements may be sufficient to cover 

the case when previous elections 

change. Consultation with the state and 

local air quality planning agencies must 

occur on the conformity determination 

anyway within the interagency 

consultation process. Similarly, the 

MPO must seek public comment on the 

conformity determination, according to 

the requirements in 40 CFR 93.105(e). 

By relying on these existing 

requirements, the MPO could be spared 

the additional resource costs associated 

with running another interagency 

consultation process or full public 

comment process for electing to revert 

to the full conformity timeframe. 

Placement in regulatory text. 

Regarding the placement of 

requirements for state and local air 

quality agency consultation and public 

comment, EPA is proposing to include 

them in § 93.106 because we are 

proposing most of the regulatory text for 

implementing the provision to shorten 

the timeframe in this section. The main 

advantage of including requirements for 

state and local air agency consultation 

and public comment in this section is 

that it would not require any 

amendments to state conformity SIPs. 

EPA believes that it is reasonable to 

include these process requirements 

along with other timeframe 

requirements, because this type of 

consultation would only occur when the 

MPO is considering electing to shorten 

the timeframe. The proposal would also 

streamline the rule and eliminate 

redundant text. 

EPA is not proposing to include these 

consultation requirements in § 93.105 

because such a change is not required 

by the Clean Air Act as amended by 

SAFETEA–LU. In addition, doing so 

would force states that already have 

submitted or approved conformity SIPs 

to amend them, which could require 

significant state and local resources. 

This result would be an unfortunate 

coincidence, given that SAFETEA–LU 

streamlined the conformity SIP 

requirements (see Section VII. of this 

preamble for this discussion). 

E. Isolated Rural Nonattainment and 

Maintenance Areas 

1. Proposal 

Isolated rural nonattainment and 

maintenance areas do not have MPOs 

and are not required to prepare 

transportation plans or TIPs. Projects in 

these areas are generally included in the 

long-range statewide transportation plan 

and the statewide TIP. Isolated rural 

areas are not ‘‘donut areas.9’’ 

EPA is proposing two options for 

comment: 

<bullet≤ Option 1: Isolated rural areas 

would also have the option to shorten 

the timeframe covered by conformity 

determinations. 

<bullet≤ Option 2: Isolated rural areas 

would not be given the option to 

shorten the timeframe covered by 

conformity determinations. 

Under Option 1, EPA’s proposals for 

isolated rural areas are parallel to the 

proposals for metropolitan areas in 

Sections VI.B. and C. That is, EPA is 

proposing that a conformity 

determination for a project in an 

isolated rural area would have to 

include a regional emissions analysis 

that covers the entire timeframe of the 

statewide transportation plan (i.e., at 

least 20 years), unless the area elects to 

shorten the timeframe. 

Before an isolated rural area has an 

adequate or approved second 

maintenance plan, a conformity 

determination for a project in an 

isolated rural area that has elected to 

shorten the timeframe would need to 

include a regional emissions analysis 

that covers the longest of the following 

three timeframes: 

<bullet≤ The first 10-year period of 

the statewide transportation plan; 

<bullet≤ The latest year in the SIP (or 

FIP) applicable to the area that contains 

a motor vehicle emission budget; or 

<bullet≤ The year after the completion 

date of a regionally significant project if 

that project is included in the portion of 

the STIP covering the area, or the 

project requires approval before the 

subsequent conformity determination. 

Once an isolated rural area has an 

adequate or approved second 

maintenance plan, a conformity 

determination for a project in an 

isolated rural area that has elected to 

shorten the timeframe would cover the 

period of time through the end of the 

second maintenance plan. 

EPA is including regulatory text for 

Option 1 in § 93.109(l)(2)(i) by 

including a reference to § 93.106(d). To 

finalize Option 2, EPA would simply 

delete this reference. EPA could finalize 

either option under this proposed rule. 

Given that isolated rural areas do not 

have an MPO, EPA is proposing two 

options for which agency would make 

the election to shorten the timeframe in 

an isolated rural area: 

<bullet≤ State DOT option: The state 

DOT would make the election to shorten 

the conformity timeframe in an isolated 

rural area. 

<bullet≤ Project sponsor option: The 

project sponsor would make the 

election. 

EPA requests comment on these two 

options, and asks whether there are 

other alternatives that would also be 

viable in isolated rural areas. We are 

including regulatory text for the state 

DOT option in § 93.109(l)(2)(i), 

however EPA could finalize either 

option or an alternative suggested 

during the comment period under this 

proposed rule. 

EPA’s proposed process requirements 

for isolated rural areas are exactly the 

same as the proposed requirements for 

metropolitan areas. This result is 

achieved because EPA is proposing in §

93.109(l)(2)(i), which addresses isolated 

rural areas, that references to the MPO 

in § 93.106(d) should be taken to mean 

the state DOT. 

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24482 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

10 Note that the proposals in V.F. would apply 

to isolated rural areas as well as metropolitan areas 

if EPA finalizes Option 1 to allow isolated rural 

areas to shorten the timeframe of conformity 

determinations. 

2. Rationale 

EPA believes it is appropriate to 

extend this flexibility to isolated rural 

areas to be consistent with how the 

conformity rule has been implemented 

in isolated rural areas. The Clean Air 

Act amendment made by SAFETEA–LU 

allowing areas to shorten their 

conformity timeframes does not prohibit 

its use in isolated rural areas. 

In general, most aspects of the 

conformity regulation apply 

consistently to metropolitan and 

isolated rural areas. Where there are 

differences, the differences have given 

isolated rural areas additional 

flexibility. For example, in the 1997 

conformity rule, EPA provided isolated 

rural areas the flexibility to choose 

among several tests for demonstrating 

conformity for years after the time 

period addressed by the SIP (see 40 CFR 

93.109(l)(2)(ii)). 

Our rationale in giving isolated rural 

areas the flexibility to choose among 

several tests for years after the time 

period addressed by the SIP is 

especially relevant to today’s proposal 

to give these areas the ability to shorten 

their conformity timeframes. In the July 

9, 1996, proposed rule, we stated, 

‘‘isolated rural areas generally do not 

have a metropolitan transportation 

planning process that could serve as a 

forum for identifying and addressing 

long-term growth issues in years not 

addressed by the SIP’’ (61 FR 36121). 

Today’s proposal to allow isolated rural 

areas to shorten their timeframe would 

also help to alleviate that concern. EPA 

believes that giving isolated rural areas 

the ability to shorten their timeframe 

would still ensure that projects conform. In the 1996 proposal we also said, ‘‘In 

addition, regionally significant, 

federally funded or approved projects 

usually occur infrequently in isolated 

rural areas. Conformity demonstrations 

for such areas as required by the 

existing conformity rule would place 

the burden of long-term planning on a 

few or even a single transportation 

project’’ (61 FR 36121). Again, allowing 

isolated rural areas to shorten their 

timeframe could alleviate the concern 

that long-term planning rests on only a 

few or even one project, while still 

ensuring that a project conforms, 

because the timeframe must be at least 

as long as the year after the completion 

date of a regionally significant project. Finally, an election to shorten the 

timeframe could not be made without 

consultation with the state (and where 

appropriate, local) air quality agency, 

and solicitation of public comment (as 

discussed above in section V.D.). 

Therefore, if in a particular isolated 

rural area there is some specific reason 

that a conformity determination should 

cover the entire length of the statewide 

transportation plan (i.e., at least 20 

years), the state and local air quality 

agencies and the public has the 

opportunity to go on record with their 

concerns. For these reasons, EPA 

believes that it is appropriate to propose 

and take comment on extending the 

option to shorten the conformity 

timeframe to isolated rural areas. 

Agency that makes elections. As 

Clean Air Act section 176(c)(7) does not 

specifically address isolated rural areas, 

EPA does not have a specific statutory 

provision to rely on for which entity 

should make an election to shorten the 

conformity timeframe in isolated rural 

areas. However, there are several 

reasons why EPA believes that assigning 

the ability to elect to shorten the 

conformity timeframe to the state DOT 

makes the most sense. First, although 

the state DOT is not always the project 

sponsor, the state DOT prepares the 

statewide transportation plan and the 

statewide TIP and therefore in this 

regard, the state DOT serves a function 

in an isolated rural area that is similar 

to an MPO. Second, the state DOT may 

be better able to coordinate the 

consultation necessary to make an 

election with the state and local air 

quality planning agencies and with the 

public than any other entity in an 

isolated rural area. 

Assigning the ability to elect to 

shorten the conformity timeframe to the 

project sponsor may not be as workable. 

EPA is concerned about the possibility 

that in an isolated rural area, there may 

be more than one project sponsor, and 

thus it would be unclear which entity 

would have the ability to elect to 

shorten the timeframe. Other issues 

could also arise, such as multiple 

project sponsors electing to shorten the 

timeframe or reverting back to a longer 

timeframe at any given time. Such a 

situation could be confusing to project 

sponsors, air agencies, the public, and 

other agencies typically involved in 

project-level conformity determinations. 

We are requesting comment on both 

the state DOT and project sponsor 

options, and soliciting input as to 

whether there are any other alternatives 

for consideration. Though commenters 

can simply express a preference, 

providing rationale for a preference is 

especially useful to EPA. 

F. Specific Analysis Requirements 

Under a Shortened Timeframe 

1. Proposal 

EPA is proposing to include most of 

the necessary regulatory language for 

shortening the conformity timeframe 

within § 93.106, and is also proposing 

changes in § § 93.118 and 93.119.10

<bullet≤ First, today’s proposal would 

rename § 93.106, which is currently 

labeled ‘‘Content of transportation 

plans,’’ as ‘‘Content of transportation 

plans and timeframe of conformity 

determination.’’ 

<bullet≤ Second, EPA proposes to 

amend § 93.106(a)(1) to update the 

horizon years that apply when an area 

shortens the conformity timeframe. 

(Section 93.106(a)(1) only applies to 

serious, severe or extreme ozone and 

serious CO nonattainment areas with 

urbanized populations greater than 

200,000.) 

<bullet≤ Third, EPA is proposing 

changes to § § 93.118 and 93.119 to 

indicate that particular years must be 

analyzed only if they are in the 

conformity timeframe and to include the 

requirements for any needed 

informational analyses. Areas that use the budget test. In areas 

that have budgets that choose to shorten 

the timeframe, the requirements for 

demonstrating consistency with 

budgets, and analyzing specific years, 

would be similar to the existing 

conformity rule at 40 CFR 93.118(b) and 

(d). Under a shortened timeframe, EPA 

is proposing that consistency with, and 

an analysis for, the attainment year 

would be necessary only if the 

attainment year is both within the 

timeframe of the transportation plan and 

conformity determination. In addition, 

under a shortened timeframe, EPA is 

proposing that instead of analyzing the 

last year of the transportation plan for 

the conformity determination, the 

analysis would be done for the last year 

of the shortened timeframe. 

EPA is also proposing an additional 

requirement for areas that do not have 

an adequate or approved second 

maintenance plan budget. In these areas, 

EPA is proposing that the conformity 

determination must be accompanied by 

a regional emissions analysis for the last 

year of the transportation plan, as well 

as for any year where the budgets were 

exceeded in a previous regional 

emissions analysis if that year is later 

than the shortened conformity 

timeframe. EPA proposes that these 

regional emissions analyses would be 

done in manner consistent with all 

relevant requirements of the 

transportation conformity regulation 

(e.g., 40 CFR 93.110, 93.111, and 

93.122). However, these analyses would 

be for informational purposes only, and 

emissions would not have to meet the 

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Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24483 

budgets in these years. (EPA is not 

proposing these information-only 

analysis requirements for areas with an 

adequate or approved second 

maintenance plan, for the reasons 

described below.) 

Areas that use the interim emissions 

tests. In areas that do not have budgets 

and use the interim emissions tests, EPA 

is proposing that the requirements for 

analysis years would be similar to the 

existing requirements in § 93.119 that 

apply under a full transportation planlength conformity determination. Under 

a shortened timeframe, EPA is 

proposing that instead of analyzing the 

last year of the transportation plan, the 

analysis would be done for the last year 

of the shortened timeframe. 

As in our proposal for areas that use 

the budget test, EPA is also proposing 

that the conformity determination must 

be accompanied by a regional emissions 

analysis for the last year of the 

transportation plan in areas that use the 

interim emissions tests. EPA proposes 

that this regional emissions analysis 

would be for informational purposes 

only. There are three proposed options 

for what this informational regional 

analysis would consist of in areas that 

use the interim emissions tests: 

<bullet≤ Option X: Emissions for the 

last year of the transportation plan 

would be estimated and be compared to 

the interim emissions test(s) that is used 

in the conformity determination (e.g., a 

baseline year test, or the build/no-build 

test), but emissions would not have to 

pass the test. 

<bullet≤ Option Y: Emissions for the 

last year of the transportation plan 

would be estimated and compared to 

either interim emissions test, regardless 

of which interim emission test(s) are 

used for the conformity determination. 

Emissions would not have to pass the 

test. 

<bullet≤ Option Z: Emissions for the 

last year of the transportation plan 

would be estimated, but no comparison 

to emissions from the baseline year or 

the ‘‘no-build’’ scenario would be 

required. 

EPA’s proposed regulatory language 

in § 93.119 could be finalized under 

any of these options, and other 

alternatives can be submitted during the 

comment period. EPA also requests 

information regarding whether the 

proposed options would result in useful 

information about future emissions for 

consideration by state and local 

agencies and the public. EPA also 

proposes that this regional emissions 

analysis would be done in manner 

consistent with all relevant 

requirements of the transportation 

conformity regulation (e.g., 40 CFR 

93.110, 93.111, and 93.122). Note that 

there is no proposal for an informational 

regional emissions analysis for years 

where the interim tests were not met in 

a previous regional analysis, as there is 

for areas that use the budget test that do 

not have adequate or approved second 

maintenance plans. 

2. Rationale 

General. EPA is proposing these 

changes to the conformity regulation 

because SAFETEA–LU has amended the 

Clean Air Act to allow MPOs to shorten 

their conformity timeframes. EPA is 

following the specific requirements of 

the new Clean Air Act provision in 

today’s proposal. 

EPA’s proposed regulatory text for 

required analysis years for conformity 

determinations with shortened 

timeframes is generally consistent with 

current practice. Given that the statute 

did not specify the years that must be 

analyzed in a conformity determination 

with a shortened timeframe, EPA 

assumes the existing conformity 

requirements should apply. Therefore, 

in areas that use the budget test, a 

shortened conformity determination 

would have to include the attainment 

year if it is in the timeframe of the 

conformity determination, similar to the 

existing requirement to include the 

attainment year if it is in the timeframe 

of the transportation plan. In areas that 

use the interim emissions test, a 

shortened conformity determination 

would include an analysis year no more 

than five years into the future, just as 

full-length conformity determinations 

do. 

In addition, regardless of the test used 

under a shortened timeframe, the last 

year of the conformity determination 

would need to be analyzed. This 

requirement is similar to the existing 

one to analyze the last year of the 

transportation plan. Likewise, under a 

shortened timeframe analysis years 

would be no more than ten years apart, 

just as under a full-length conformity 

determination. 

Areas without second maintenance 

plans that shorten their conformity 

timeframe. If the conformity timeframe 

is shortened in an area that does not 

have an adequate or approved second 

maintenance plan, EPA proposes that 

the conformity determination be 

accompanied by an informational 

analysis. EPA’s proposals for the 

regional emissions analysis for the last 

year of the transportation plan, and for 

any year where the budgets were 

exceeded in a previous regional 

emissions analysis if that year is later 

than the shortened conformity 

timeframe, are also based in the 

statutory language. Clean Air Act 

section 176(c)(7)(B) requires that the 

conformity determination ‘‘be 

accompanied by a regional emissions 

analysis’’ for these years. Absent a 

definition for ‘‘regional emissions 

analysis’’ in the statute, EPA assumes 

that the phrase has its usual meaning in 

the context of transportation conformity. 

Therefore, EPA believes that these 

analyses need to be done in a manner 

consistent with all the relevant 

requirements of the conformity 

regulations. 

This same statutory language is the 

reason EPA proposes that these analyses 

do not need to meet the required tests. 

The statutory language makes it clear 

that these emissions analyses 

‘‘accompany’’ the conformity 

determination, and thus are not part of 

the conformity determination. 

EPA is proposing that areas that use 

the interim emissions tests would only 

have to run an informational analysis 

for the last year of the transportation 

plan, rather than for any years where 

they did not pass the tests in previous 

conformity determination that extend 

beyond the shortened timeframe, as 

would areas that use the budget test. 

This result is because Clean Air Act 

section 176(c)(7)(B) states that these 

information-only regional emissions 

analyses are to be done ‘‘for the last year 

of the transportation plan and for any 

year shown to exceed emissions budgets 

by a prior analysis, if such year extends 

beyond’’ the end of the shortened 

timeframe. Areas subject to the interim 

emissions tests for a given pollutant or 

precursor do not have budgets for that 

pollutant or precursor. Therefore, there 

is no statutory requirement for these 

areas to perform an informational 

regional emissions analysis for any year 

other than the last year of the 

transportation plan. 

EPA requests comment on the three 

options for what an information-only 

regional emissions analysis would 

consist of in an area that uses the 

interim emissions test. EPA believes 

that any of the options could be 

finalized under the proposed regulatory 

language because the statute is 

ambiguous regarding this requirement 

prior to SIP budgets being established. 

The statutory language states that the 

the regional emissions analysis that 

accompanies the conformity 

determination must be performed for 

the last year of the transportation plan, 

but does not specify that the interim 

emissions tests be conducted. The 

Congressional report language for this 

section states, ‘‘Generating this 

information will be helpful in ensuring 

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24484 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

11 Joint Explanatory Statement of the Committee 

of Conference, ‘‘Section 6011, Transportation 

Conformity,’’ p. 1059. 

that conformity is maintained,’’ 11 but 

does not include any direction on how 

this goal should be met in those areas 

that use the interim emissions tests. 

EPA believes Option X could meet 

this goal because using the same test or 

tests as the conformity determination, 

whether it is the baseline year test, the 

build/no-build test, or both, would 

reveal whether or not the emissions 

from the last year of the transportation 

plan would meet that test or tests. 

Although the conformity test would not 

be required to be met, using the same 

test as in the conformity determination 

for the informational analysis provides 

similar information as in the conformity 

determination and is a format that is 

familiar to reviewers. The additional 

information—emissions in the baseline 

year and/or emissions from the no-build 

scenario—may be helpful to inform state 

and local agencies and the public about 

emissions trends beyond the conformity 

determination’s timeframe. In addition, 

Option X is similar to the requirement 

Congress included for the informational 

analysis in areas that have a budget, in 

that the area would use the same test(s) 

used for the conformity determination 

as a comparison. 

Option Y, estimating emissions from 

planned and existing projects in the last 

year of the transportation plan and 

comparing them to the interim 

emissions test chosen by the MPO or 

state DOT/project sponsor, could also 

meet the statute’s requirement. For 

example, under this option, an area 

could choose to compare emissions in 

the last year of the transportation plan 

to baseline year emissions, even if that 

area is using the build/no-build test to 

determine conformity. Option Y gives 

MPOs and state DOTs/project sponsors 

flexibility, while still informing state 

and local agencies and the public. 

Option Z, estimating emissions from 

planned and existing projects in the last 

year of the transportation plan, without 

documenting whether the baseline year 

test is passed or performing the no-build 

scenario, could also meet the statute’s 

requirement. Having future emissions 

projections, without performing an 

interim emissions test, may alone 

provide meaningful information for 

state and local agencies on future 

emissions trends. 

EPA could finalize any of these 

options and will consider all comments 

received on these and alternate options, 

as well as other information and factors 

that could inform the final rulemaking. 

Areas with second maintenance plans 

that shorten their conformity timeframe. 

EPA is not proposing any informationonly analyses in areas with an adequate 

or approved second maintenance plan, 

given Clean Air Act section 176(c)(7)(C). 

The statute labels this section, which 

applies to areas that have an adequate 

or approved second maintenance plan, 

as ‘‘Exception.’’ EPA interprets section 

176(c)(7)(C) to mean that areas with 

adequate or approved second 

maintenance plans that shorten their 

conformity timeframe do not have to 

comply with the requirements of Clean 

Air Act section 176(c)(7)(A) or (B), and 

(C) does not require any informational 

analyses. Therefore, EPA believes that 

areas with a second maintenance plan 

that shorten their conformity timeframe 

do not have to perform a regional 

emissions analysis for the last year of 

their transportation plans, or for a year 

shown to exceed budgets by a prior 

analysis, as required by Clean Air Act 

section 176(c)(7)(B) for other areas that 

have shortened their timeframe. 

VII. Conformity SIPs 

A. Proposal 

Today’s proposal would modify 40 

CFR 51.390 to streamline the 

requirements for state conformity SIPs. 

A conformity SIP is different from a 

control strategy SIP or maintenance 

plan, as a conformity SIP only includes 

state conformity procedures and not 

motor vehicle emissions budgets or air 

quality demonstrations. 

EPA is proposing to require states to 

submit conformity SIPs that address 

only the following sections of the 

federal rule that need to be tailored to 

a state’s individual circumstances: 

<bullet≤ 40 CFR 93.105, which 

addresses consultation procedures; 

<bullet≤ 40 CFR 93.122(a)(4)(ii), 

which states that conformity SIPs must 

require that written commitments to 

control measures be obtained prior to a 

conformity determination if the control 

measures are not included in an MPO’s 

transportation plan and TIP, and that 

such commitments be fulfilled; and 

<bullet≤ 40 CFR 93.125(c), which 

states that conformity SIPs must require 

that written commitments to mitigation 

measures be obtained prior to a projectlevel conformity determination, and that 

project sponsors comply with such 

commitments. 

Prior to SAFETEA–LU, states were 

required to address these provisions as 

well as all other federal conformity rule 

provisions in their conformity SIPs. 

Most of the sections of the federal rule 

were required to be copied verbatim 

from the federal rule into a state’s 

conformity SIP, as previously required 

under 40 CFR 51.390(d). 

In addition, EPA is proposing to 

delete the requirement for states to 

submit conformity SIPs to DOT. States 

would continue to submit conformity 

SIPs to EPA, as required under the 

existing rule. EPA is also proposing to 

reorganize the existing conformity SIP 

regulatory language to improve clarity 

and readability. The proposed 

regulatory language is re-ordered to 

more naturally fall into three topics: 

Purpose and applicability, conformity 

implementation plan content, and 

timing and approvals. The proposed 

language retains existing requirements 

with appropriate modifications based on 

the new Clean Air Act amendment from 

SAFETEA-LU. 

B. Rationale 

EPA is primarily proposing these 

changes to § 51.390 to make the 

transportation conformity regulation 

consistent with the law, which has been 

in effect since August 10, 2005. In 

SAFETEA-LU, Congress amended the 

Clean Air Act so that states are no 

longer required to copy much of the 

federal transportation conformity rule 

into their SIPs. Instead, Clean Air Act 

section 176(c)(4)(e) now requires states 

to include in their conformity SIPs: 

criteria and procedures for consultation 

required by subparagraph (D)(i), and 

enforcement and enforceability (pursuant to 

section 93.125(c) and 93.122(a)(4)(ii) of title 

40, Code of Federal Regulations) in 

accordance with the Administrator’s criteria 

and procedures for consultation, 

enforcement, and enforceability. 

Subparagraph (D)(i) in Clean Air Act 

section 176(c)(4) requires EPA to write 

regulations that address consultation 

procedures to be undertaken by MPOs 

and DOT with state and local air quality 

agencies and state DOTs before making 

conformity determinations. EPA’s 

regulations governing consultation are 

found at 40 CFR 93.105. Therefore, in 

effect the statute now requires states to 

address and tailor only the three 

sections of the conformity rule noted 

above in their conformity SIPs. 

In general, states are no longer 

required to submit conformity SIP 

revisions that address the other sections 

of the conformity rule, except for 

limited cases that are described below. 

EPA believes that the new conformity 

SIP requirements will reduce the 

administrative burden for state and local 

agencies significantly, because the new 

requirements will result in fewer 

required conformity SIP revisions in 

most areas. 

EPA is proposing to delete the 

requirement for states to submit 

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conformity SIPs to DOT to be consistent 

with SAFETEA–LU’s changes. In 

revising the Clean Air Act’s previous 

conformity SIP requirements, Congress 

did not retain the previous requirement 

that ‘‘each State shall submit to the 

Administrator and the Secretary of 

Transportation * * * a revision to its 

implementation plan * * *.’’ The new 

statutory language in Clean Air Act 

section 176(c)(4)(E) does not include 

this previous requirement, and 

therefore, we are removing this 

requirement to reduce state and local air 

agency processing of their conformity 

SIPs. However, EPA does not believe 

that this proposal will substantively 

change DOT’s involvement in 

conformity SIP development. The 

proposal does not change the existing 

conformity rule’s requirement that EPA 

provide DOT with a 30-day comment 

period on conformity SIP revisions. 

The reorganizational changes to §

51.390 that are proposed are for clarity 

and readability and not related to 

changes in the law. EPA is proposing 

these changes to make this section more 

user-friendly. 

C. How Would This Proposal Impact 

States? 

1. Areas That Never Submitted a 

Conformity SIP 

States that never submitted a 

conformity SIP would only address the 

three provisions noted above in their 

conformity SIPs according to any 

existing conformity SIP deadline (see D. 

of this section below). 

2. Areas That Submitted a Conformity 

SIP That Was Never Approved 

In some cases, states have submitted 

conformity SIPs to EPA for approval, 

but EPA has not yet acted on them. 

These states could write their EPA 

Regional Office and request that EPA 

approve only the three provisions that 

are required to be included in their SIPs 

and that EPA take no action on the 

remainder of the submission. States 

could also leave the full conformity SIP 

pending before EPA for rulemaking 

action. However, if EPA approves the 

full SIP, states could not apply any 

subsequent changes that EPA makes to 

the federal rule without first revising 

their state conformity SIP and obtaining 

EPA’s approval. 

3. Areas With Approved Conformity 

SIPs 

States with EPA-approved conformity 

SIPs that decide to eliminate the 

provisions that are no longer mandatory 

would need to revise the SIP to 

eliminate those provisions. EPA would 

have to approve the changes to a state’s 

conformity SIP through the Federal 

Register rulemaking process. Such a SIP 

revision should not be controversial 

because the provisions are no longer 

required by the Clean Air Act as 

amended by SAFETEA–LU. In addition 

their elimination from a state’s 

conformity SIP should not change 

conformity’s implementation in practice 

since the federal conformity rule would 

apply for any provision not addressed in 

a state SIP. States are encouraged to 

work with their EPA Regional Office as 

early in the process as possible to 

ensure the SIP submittal meets all 

requirements and is fully approvable. 

4. Areas That Submit a Partial 

Conformity SIP 

A state may choose to submit a 

conformity SIP that addresses only one 

or two of the three required sections of 

the federal rule. In this situation, EPA 

can approve the submitted sections. 

However, the Clean Air Act as amended 

by SAFETEA–LU requires states to 

address all three sections in their 

conformity SIP, so a state that addresses 

only one or two of the requirements 

would still have an outstanding 

requirement. 

D. When Are Conformity SIPs Due? 

SAFETEA–LU did not create any new 

deadlines for conformity SIPs. Any 

nonattainment or maintenance area that 

has missed earlier deadlines to submit 

conformity SIP revisions (e.g., after 

previous conformity rulemakings, or 

new nonattainment designations) 

continues to be subject to these previous 

deadlines, but only in regard to the 

three provisions now required by the 

Clean Air Act. Two scenarios are 

described below. 

1. Areas With Conformity SIPs That 

Address Only the Three Required 

Provisions 

Once a state has an approved 

conformity SIP that addresses only the 

three sections that the Clean Air Act 

now requires, the state would need to 

revise its conformity SIP only if EPA 

revises one of these sections of the 

conformity rule, or the state chooses to 

revise one of these three provisions. 

Any future changes to the federal 

conformity rules beyond these three 

provisions would apply in all states that 

have only these three provisions in their 

approved conformity SIP. 

2. Areas That Choose to Either Retain or 

Submit Additional Sections of the 

Conformity Rule 

A state with a previously approved 

conformity SIP may decide to retain all 

or some of the federal rule in its SIP or 

a state without an approved conformity 

SIP could choose to submit for EPA 

approval all or some of the other 

sections of the federal rule. In such a 

case, the state should be aware that the 

conformity determinations in the state 

continue to be governed by the state’s 

approved conformity SIP. Such a state 

would need to revise its conformity SIP 

when EPA makes changes to the federal 

rule in order to have those changes 

apply in the state. For more information, 

please refer to EPA’s November 2004 

Conformity SIP Guidance, which is 

found at: http://www.epa.gov/otaq/ 

stateresources/transconf/policy.htm. 

VIII. Transportation Control Measure 

Substitutions and Additions 

SAFETEA–LU section 6011(d) 

amended the Clean Air Act by adding a 

new section 176(c)(8) that establishes 

specific criteria and procedures for 

replacing TCMs in an existing approved 

SIP with new TCMs and adding TCMs 

to an approved SIP. SAFETEA–LU 

section 6011(g) directs EPA to 

‘‘promulgate revised regulations to 

implement the changes made by this 

section.’’ EPA is proposing to revise the 

definition of a TCM in 40 CFR 93.101 

to clarify that TCMs as defined for 

conformity purposes also include any 

TCMs that are incorporated into the SIP 

through this new TCM substitution and 

addition process. However, EPA is not 

proposing regulatory text to implement 

this Clean Air Act amendment. EPA has 

determined that revising the 

transportation conformity regulations is 

not necessary to implement the TCM 

substitution and addition provision. 

EPA based its determination that 

implementing regulations are not 

necessary on three factors. First, Clean 

Air Act section 176(c)(8) contains 

sufficient detail to allow the provision 

to be implemented without further 

regulation. This section specifies the 

requirements for TCM substitutions and 

additions. It establishes the procedures 

for ensuring that substitute TCMs 

provide equal or greater emissions 

reductions than the TCMs that are being 

replaced. It also establishes the process 

for concurrence on the substitution or 

addition by the state air agency and 

EPA. Finally, it ensures that the state 

and EPA maintain up-to-date 

information on the TCMs in approved 

SIPs so that the public is aware of the 

TCMs that are to be implemented. 

Regulatory language to implement this 

provision would merely duplicate the 

language already included in the Clean 

Air Act. 

Second, regulatory changes are 

needed to address the other Clean Air 

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24486 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

12 As discussed further below, categorical hotspot findings under the proposal could not be used 

to meet 40 CFR 93.116(b) requirements in the 

limited number of CO areas without approved 

attainment demonstrations or maintenance plans. 

Act amendments made by SAFETEA– 

LU (e.g., the frequency of conformity 

determinations and the lapse grace 

period) because the existing 

transportation conformity regulation is 

inconsistent with the revised Clean Air 

Act. However, no such inconsistency 

exists for the TCM substitution and 

addition provision because the 

transportation conformity regulation has 

never addressed the substitution or 

addition of TCMs to approved SIPs. 

Therefore, the detailed criteria and 

procedures for TCM substitutions and 

additions contained in Clean Air Act 

section 176(c)(8) can be relied on 

without any conflict with the regulation. 

Third, if EPA were to establish 

regulations to implement the Clean Air 

Act amendment addressing TCM 

substitution and addition, those 

provisions would not be incorporated 

into the transportation conformity 

regulations in 40 CFR part 93. While the 

TCM substitution and addition 

provision appears in Clean Air Act 

section 176(c) which establishes 

conformity requirements, the provision 

actually establishes a process by which 

an area can revise its approved SIP. 

Therefore, if regulations were written to 

implement this provision, they would 

appear in either 40 CFR part 51 or 52, 

which govern SIP actions. However, 

EPA typically issues guidance rather 

than regulations for statutory 

requirements related to SIPs where the 

agency concludes that statutory 

language can be implemented without 

regulations. EPA’s decision not to 

propose regulatory text to implement 

the TCM substitution and addition 

provision is consistent with EPA’s past 

practice for SIP requirements. 

EPA and DOT issued joint guidance 

on February 14, 2006, on the 

implementation of all of the Clean Air 

Act amendments made by SAFETEA– 

LU. This guidance clarified EPA and 

DOT expectations for how TCM 

substitutions and additions are to be 

carried out by state and local agencies. 

State and local agencies considering 

TCM substitutions or additions should 

review this guidance and consult with 

their local EPA, FHWA and FTA offices. 

The guidance is available at: http:// 

www.epa.gov/otaq/stateresources/ 

transconf/420b06901.pdf. 

Clean Air Act section 176(c)(8) 

requires that the EPA Administrator 

consult and concur on TCM 

substitutions and additions. However, 

as has been done with most other 

responsibilities related to the approval 

of SIP revisions, EPA believes that this 

authority may be delegated from the 

Administrator to the Regional 

Administrators and in some cases to 

other levels of management in the EPA 

Regional Offices. In the February 2006 

joint guidance described above we 

indicated that EPA intended to prepare 

a delegation of authority for these 

responsibilities that, when finalized, 

would enable EPA Regional 

Administrators to consult and concur on 

TCM substitutions and additions. On 

September 29, 2006, the EPA 

Administrator signed the subject 

delegation of authority (Delegation of 

Authority 7–158: Transportation Control 

Measure Substitutions and Additions). 

As of that date, EPA Regional 

Administrators have the authority to 

consult and concur on TCM 

substitutions and additions. The 

delegation of authority allows the 

Regional Administrators to further 

delegate these responsibilities to the 

regional air division directors, but no 

further. 

IX. Categorical Hot-spot Findings for 

Projects in Carbon Monoxide 

Nonattainment and Maintenance Areas 

A. Background 

The conformity rule currently 

requires a hot-spot analysis to be 

completed for all project-level 

conformity determinations in CO 

nonattainment and maintenance areas 

(40 CFR 93.116 and 93.123(a)). A CO 

hot-spot analysis is an estimation of 

likely future localized pollutant 

concentrations and a comparison of 

those concentrations to the CO national 

ambient air quality standards 

(‘‘standards’’) (40 CFR 93.101). A hotspot analysis assesses air quality 

impacts on a scale smaller than the 

entire nonattainment or maintenance 

area, such as a congested roadway 

intersection. 

The current conformity rule requires 

that a CO hot-spot analysis shows that 

a non-exempt FHWA/FTA project does 

not cause any new violations of the CO 

standards or increase the frequency or 

severity of existing violations (40 CFR 

93.116(a)). Until a CO attainment 

demonstration or maintenance plan is 

approved, non-exempt FHWA/FTA 

projects must also meet the 40 CFR 

93.116(b) requirement to eliminate or 

reduce the severity and number of 

localized CO violations in the area 

substantially affected by the project. 

Today’s proposal would not amend 

these existing requirements. 

The type of CO hot-spot analysis 

varies depending on the type of project 

involved. Section 93.123(a)(1) currently 

requires quantitative hot-spot analyses 

for projects of most concern; section 

93.123(a)(2) requires either a 

quantitative or qualitative hot-spot 

analysis for all other projects. Today’s 

proposal would not amend what 

projects are covered by these existing 

requirements. 

Hot-spot analyses are also required for 

certain projects in PM2.5 and PM10

nonattainment and maintenance areas. 

The current conformity rule allows 

DOT, in consultation with EPA, to make 

a ‘‘categorical hot-spot finding’’ in PM2.5

and PM10 nonattainment and 

maintenance areas if there is 

appropriate modeling that shows that a 

particular category of highway or transit 

projects will meet applicable Clean Air 

Act conformity requirements without 

further analysis (40 CFR 93.123(b)(3)). If 

DOT makes such a finding, then no 

further hot-spot analysis to meet 40 CFR 

93.116(a) is needed for any project that 

fits the category addressed by the 

finding. A project sponsor would simply 

reference a categorical hot-spot finding 

in the project-level conformity 

determination to meet hot-spot analysis 

requirements. See EPA’s March 10, 

2006, final rule for further information 

(71 FR 12502–12506) on categorical hotspot findings in PM2.5 or PM10 areas. 

B. Proposal 

Today’s proposal would extend this 

current PM provision for categorical 

hot-spot findings to CO nonattainment 

and maintenance areas. The proposal 

would allow DOT, in consultation with 

EPA, to make categorical hot-spot 

findings for appropriate cases in CO 

nonattainment and maintenance areas if 

appropriate modeling shows that a type 

of highway or transit project does not 

cause or contribute to a new or 

worsened local air quality violation of 

the CO standards, as required under 40 

CFR 93.116(a).12 The regulatory text for 

today’s proposal can be found in §

93.123(a)(3). 

Any DOT categorical hot-spot finding 

would have to be supported by a 

credible quantitative modeling 

demonstration showing that all 

potential projects in a category satisfy 

statutory requirements without further 

hot-spot analysis. Such modeling would 

need to be derived in consultation with 

EPA, and consistent with EPA’s existing 

CO quantitative hot-spot modeling 

requirements, as described in 40 CFR 

93.123(a). Modeling used to support a 

categorical hot-spot finding could 

consider the emissions produced from a 

category of projects based on potential 

project sizes, configurations, and levels 

of service. Under the proposed 

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regulatory language, modeling could 

also consider the emissions produced by 

a category of projects and the resulting 

impact on air quality under different 

circumstances. 

The proposal would not affect the 

requirement for conformity 

determinations to be completed for all 

non-exempt projects in CO areas. The 

modeling on which a categorical finding 

is based would serve to fulfill the hotspot analysis requirements for 

qualifying projects. The modeled 

scenarios used by DOT to make 

categorical hot-spot findings would be 

derived through consultation and 

participation by EPA. Existing interagency consultation 

procedures for project-level conformity 

determinations would also be followed 

(40 CFR 93.105). Any project-level 

conformity determination that relied on 

a categorical hot-spot finding would 

also be subject to existing public 

involvement requirements, during 

which commenters could address all 

appropriate issues relating to the 

categorical findings used in the 

conformity determination. See D. of this 

section for further information on how 

EPA and DOT would implement the 

proposal. 

C. Rationale 

EPA believes it is both appropriate 

and in compliance with the Clean Air 

Act to propose that DOT make 

categorical hot-spot findings where 

modeling shows that such projects will 

not cause or contribute to new or 

worsened air quality violations. As long 

as modeling shows that all potential 

projects in a category meet the current 

conformity rule’s hot-spot requirements 

(40 CFR 93.116(a))—either through an 

analysis of a category of projects or a 

hot-spot analysis for a single project— 

then certain Clean Air Act conformity 

requirements are met. Clean Air Act section 176(c)(1)(B) is 

the statutory criterion that must be met 

by all projects in CO nonattainment and 

maintenance areas that are subject to 

transportation conformity. Section 

176(c)(1)(B) states that federallysupported 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.’’ EPA is not proposing to amend the 

existing CO hot-spot requirements in 40 

CFR 93.116(a) that ensure areas meet 

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

requirements. Categorical hot-spot 

findings would simply allow future 

information to be taken into account in 

an expedited manner, so that further CO 

hot-spot analyses are not performed on 

an individual basis for projects where it 

is determined to be unnecessary to meet 

certain statutory requirements. Making 

hot-spot findings for projects on a 

category basis would reduce the 

resource burden for state, regional and 

local agencies, and provide greater 

certainty and stability to the 

transportation planning process, while 

still ensuring that all projects meet 

Clean Air Act requirements. As noted above, CO categorical hotspot findings under today’s proposal 

could not be used to meet an additional 

hot-spot requirement for CO areas 

without approved attainment 

demonstrations or maintenance plans. 

Clean Air Act section 176(c)(3)(B)(ii) 

requires projects in these CO areas to 

also ‘‘eliminate or reduce the severity 

and number of violations of the carbon 

monoxide standards in the area 

substantially affected by the project.’’ 

This criterion is stipulated by 40 CFR 

93.109(f)(1) and 93.116(b) for FHWA/ 

FTA projects in these CO areas. EPA 

believes that this criterion is more 

appropriately met by evaluating the 

unique circumstances of an individual 

project, rather than based on a broader 

analysis of a category of projects. Since 

most CO areas already have approved 

attainment demonstrations or 

maintenance plans, there should be 

limited practical impact of this aspect of 

today’s proposal. Whatever the case, EPA believes that 

the proposal would provide an 

opportunity to streamline hot-spot 

analyses in all CO areas. Those areas 

that are required to meet the additional 

hot-spot criterion would be able to take 

advantage of any categorical finding that 

applies for meeting 40 CFR 93.116(a) 

requirements. Finally, today’s proposal also 

addresses a comment that EPA received 

during a previous rulemaking. In the 

March 10, 2006, final rule, one 

commenter believed that the flexibility 

for FHWA and FTA to make PM2.5 and 

PM10 categorical hot-spot findings 

should be extended to CO 

nonattainment and maintenance areas 

(71 FR 12504). EPA could not take final 

action on such an expansion in that 

rulemaking since no proposal had been 

provided for public comment. 

D. General Implementation for 

Categorical Hot-spot Findings 

If finalized, EPA would implement a 

CO categorical hot-spot finding 

provision similar to the implementation 

of PM2.5 and PM10 categorical hot-spot 

findings, as described in the March 10, 

2006, final rule. A project-level 

conformity determination would 

continue to be required for all nonexempt FHWA/FTA projects in CO 

areas. Modeling used to support a 

categorical hot-spot finding would be 

based on appropriate motor vehicle 

emissions factor models, dispersion 

models, and EPA’s existing 

requirements for quantitative CO hotspot modeling as specified in 40 CFR 

93.123(a)(1) (40 CFR part 51, Appendix 

W (Guideline on Air Quality Models)). 

In the March 2006 final rule (71 FR 

12505), EPA and DOT described the 

general process for categorical hot-spot 

findings to be as follows: 

<bullet≤ FHWA and/or FTA, as 

applicable, would develop modeling, 

analyses, and documentation to support 

the categorical hot-spot finding. This 

would be done with early and 

comprehensive consultation and 

participation with EPA. 

<bullet≤ FHWA and/or FTA would 

provide EPA an opportunity to review 

and comment on the complete 

categorical hot-spot finding 

documentation. Any comments would 

need to be resolved in a manner 

acceptable to EPA prior to issuance of 

the categorical hot-spot finding. 

Consultation with EPA on issue 

resolution would be documented. 

<bullet≤ FHWA and/or FTA would 

make the final categorical hot-spot 

finding in a memorandum or letter, 

which would be posted on EPA’s and 

DOT’s respective conformity websites. 

Subsequently, transportation projects 

that meet the criteria set forth in the 

categorical hot-spot finding would 

reference that finding in their projectlevel conformity determination, which 

would be subject to interagency 

consultation and the public 

involvement requirements of the 

National Environmental Policy Act 

(NEPA) process and the conformity rule 

(40 CFR 93.105(e)). The existing 

consultation and public involvement 

processes would be used to consider the 

categorical hot-spot finding for a 

particular project. 

X. Deletion of Regulation 40 CFR 

93.109(e)(2)(v) 

EPA is proposing to eliminate a 

provision of the transportation 

conformity rule that was vacated by the 

U.S. Court of Appeals for the District of 

Columbia Circuit (Environmental 

Defense v. EPA, et al., D.C. Cir. No. 04– 

1291) on October 20, 2006. This 

provision, 40 CFR 93.109(e)(2)(v), 

allowed 8-hour ozone areas to use the 

interim emissions test(s) for conformity 

instead of 1-hour budgets where the 

interim emissions test(s) was 

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determined to be more appropriate to 

meet Clean Air Act requirements. The 

court vacated this provision and 

remanded it to EPA. 

As discussed in the July 1, 2004 

preamble (69 FR 40025), EPA 

anticipated that this provision would be 

used infrequently but that there would 

be some cases where using the interim 

emissions test(s) would be more 

appropriate to meet Clean Air Act 

requirements. Because of the court’s 

decision on this provision, areas can no 

longer rely on § 93.109(e)(2)(v) to use 

an interim emissions test(s) instead of 

using 1-hour ozone budget(s). Such 

areas must now use all relevant existing 

1-hour ozone budgets in future 

conformity determinations until 8-hour 

ozone emissions budgets are found 

adequate or are approved for a given 

analysis year. EPA anticipates minimal impact from 

the court’s decision since most 8-hour 

ozone areas are already either using 

their 1-hour or 8-hour ozone SIP 

budgets. EPA, in cooperation with DOT, 

is currently providing assistance to the 

limited number of areas affected by the 

recent court decision. For additional 

assistance, please contact your EPA 

Regional Office. 

XI. Miscellaneous Revisions 

A. Minor Revision to § 93.102(b)(4) 

EPA is proposing a minor revision to 

§ 93.102(b)(4), which addresses the 

period of time that transportation 

conformity applies in maintenance 

areas. This is the period of time during 

which the requirements of the 

conformity rule apply in an area, and 

not the timeframe any one conformity 

determination examines, as discussed in 

Section VI., ‘‘Timeframes for Conformity 

Determinations.’’ 

Section 93.102(b)(4) currently states 

that conformity applies in ‘‘maintenance 

areas for 20 years from the date EPA 

approves the area’s request under 

section 107(d) of the CAA for 

redesignation to attainment, unless the 

applicable implementation plan 

specifies that the provisions of this 

subpart shall apply for more than 20 

years.’’ We are proposing to clarify this 

section to ensure that conformity would 

apply in maintenance areas through the 

last year of their approved Clean Air Act 

section 175A(b) maintenance plan, 

unless the applicable implementation 

plan specifies that conformity would 

continue to apply beyond the end of the 

area’s approved second 10-year 

maintenance plan. EPA is only proposing to clarify §

93.102(b)(4) because the current 

regulation may be read to not account 

for the situation where a maintenance 

area submits a second maintenance plan 

that establishes a budget for a year more 

than 20 years beyond the date of EPA’s 

approval of the area’s redesignation 

request and first maintenance plan. For example, suppose an area’s 

redesignation request and first 

maintenance plan are approved in 2006 

and the maintenance plan establishes 

budgets for 2016. This area submits a 

second maintenance plan that 

establishes budgets for 2030. Under the 

current regulatory language, conformity 

applies in this area ‘‘for 20 years from 

the date EPA approves’’ the area’s 

redesignation to maintenance, i.e., until 

2026, despite the fact that the area 

would have budgets for 2030. This 

result would not be consistent with the 

Clean Air Act, which requires that 

transportation activities conform to the 

SIP. EPA’s proposed change to clarify 

that conformity applies through the last 

year of the approved second 

maintenance plan would ensure that 

conformity applies throughout the time 

period covered by the SIP budgets. In 

this example, conformity would apply 

until 2030. 

This proposed revision should not 

change the implementation of 

conformity requirements in 

maintenance areas. The Clean Air Act 

requires that maintenance plans cover a 

period of 20 years from the year that 

EPA approves the area’s redesignation 

request. With this proposed change, 

conformity would continue to apply in 

maintenance areas for at least 20 years 

beyond the date of EPA’s redesignation 

of an area to maintenance. This 

clarification is consistent with EPA’s 

intention as expressed in the preamble 

to the 1993 final transportation 

conformity rule, which stated, ‘‘If the 

maintenance plan establishes emissions 

budgets for more than twenty years, the 

area would be required to show 

conformity to that maintenance plan for 

more than twenty years’’ (58 FR 62206). 

B. Technical Corrections to § §

93.102(b)(2)(v) and 93.119(f)(10) 

EPA is proposing corrections to § §

93.102(b)(2)(v) and 93.119(f)(10) to 

change ‘‘sulfur oxides’’ to ‘‘sulfur 

dioxide’’ and ‘‘SOX’’ to ‘‘SO2.’’ In the 

May 6, 2005, transportation conformity 

final rule (70 FR 24279), EPA finalized 

requirements for PM2.5 precursors. In 

that final rulemaking, we included 

‘‘sulfur oxides’’ as one of the precursors 

and referred to sulfur oxides as SOX. 

Since that rulemaking was finalized, 

EPA has proposed the PM2.5

implementation rule (70 FR 65984) and 

indicated that sulfur dioxide (SO2) 

would be regulated as a PM2.5 precursor 

rather than all sulfur oxides. We are 

proposing these corrections to the 

transportation conformity rule in order 

to make it consistent with EPA’s broader 

PM2.5 implementation strategy. This 

proposed change would not impact 

current conformity practice. 

C. Revisions to ‘‘Table 2—Exempt 

Projects’’ in § 93.126 

EPA is proposing several minor 

clarifications to ‘‘Table 2—Exempt 

Projects’’ in § 93.126, under the 

category of ‘‘Safety.’’ Specifically, EPA 

is proposing to update the following 

terms: 

<bullet≤ ‘‘Hazard elimination 

program’’ would become ‘‘Projects that 

correct, improve, or eliminate a 

hazardous location or feature;’’ 

<bullet≤ ‘‘Safety improvement 

program’’ would become ‘‘Highway 

Safety Improvement Program 

implementation;’’ and 

<bullet≤ ‘‘Pavement marking 

demonstration’’ would become 

‘‘Pavement marking.’’ 

EPA is proposing to update these 

terms to make them consistent with the 

terms in 23 U.S.C. 148, which has been 

amended by SAFETEA–LU section 

1401. The revisions EPA is proposing 

today in Table 2 of the conformity 

regulation would not change the types 

of safety projects that are exempt from 

transportation conformity requirements. 

These revisions would only update the 

terminology to be consistent with the 

changes made by SAFETEA–LU to 23 

U.S.C. 148. 

In section 1401, SAFETEA–LU 

removed the hazard elimination 

program as a stand-alone program 

previously under 23 U.S.C. 152. Projects 

that were covered by the hazard 

elimination program are now covered 

under the phrase, ‘‘Projects that correct, 

improve, or eliminate a hazardous road 

location or feature,’’ as included in 23 

U.S.C. 148. Therefore, EPA proposes to 

update this term in Table 2 of the 

conformity rule. 

SAFETEA–LU also established the 

‘‘Highway Safety Improvement 

Program’’ in title 23 U.S.C. 148, which 

includes the types of projects that were 

previously covered in the ‘‘Safety 

Improvement Program.’’ Therefore, EPA 

is proposing to change this term within 

Table 2 as well. SAFETEA–LU defines 

‘‘Highway Safety Improvement Project’’ 

as ‘‘a project described in the State 

strategic highway safety plan that—(i) 

Corrects or improves a hazardous road 

location or feature; or (ii) addresses a 

highway safety problem.’’ Given that the 

Highway Safety Improvement Program 

is substantively the same as the prior 

Safety Improvement Program, EPA 

proposes that projects defined in 23 

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Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24489 

13 Questions and answers for PM2.5 and PM10 hotspot analysis requirements can be found at FHWA’s 

Web site: http://www.fhwa.dot.gov/environment/ 

conformity/pm25faqs.htm. 

U.S.C. 148 under the Highway Safety 

Improvement Program would be exempt 

from transportation conformity. 

Finally, ‘‘pavement marking 

demonstration’’ is no longer a 

demonstration program and the 

reference is out of date. However, those 

types of projects will continue to be 

exempt under the updated phrase, 

‘‘Pavement marking.’’ Therefore, EPA 

proposes changing this term in Table 2 

to be consistent with SAFETEA–LU’s 

term. 

D. Definitions 

EPA is proposing revisions to the 

definitions of ‘‘metropolitan planning 

organization (MPO)’’ and 

‘‘transportation improvement program 

(TIP)’’ to reflect the definitions in 

SAFETEA–LU sections 3005(a) and 

6001(a). Pursuant to SAFETEA–LU, the 

term ‘‘MPO’’ now refers to the policy 

board for the organization that is 

designated under 23 U.S.C. 134(d) and 

49 U.S.C. 5303(d). EPA is proposing to 

revise the definitions of these terms in 

§ 93.101 to be consistent with the new 

statutory definitions. These proposed 

changes would have no practical impact 

in conformity implementation. 

E. Minor Clarifications for Hot-Spot 

Analyses 

EPA is proposing two minor 

clarifications to the conformity rule’s 

hot-spot analysis provisions. Both of 

these proposed changes are intended to 

improve conformity rule 

implementation in light of new statutory 

requirements. The proposed changes 

would not substantively change current 

requirements. 

First, EPA is proposing to make minor 

changes to § § 93.109(l)(2)(i) and 

93.116(a) to ensure that CO, PM10, and 

PM2.5 hot-spot analyses will continue to 

consider a project’s air quality impact 

over the entire timeframe of the 

transportation plan or long-range 

statewide transportation plan, as 

appropriate. EPA’s minor change to §

93.116(a) will ensure that hot-spot 

analyses cover the timeframe of the 

transportation plan in metropolitan and 

donut nonattainment and maintenance 

areas. And the proposed addition in §

93.109(l)(2)(i) will ensure that hot-spot 

analyses in isolated rural areas will also 

examine a project’s air quality impact 

over the timeframe of the long-range 

statewide transportation plan. 

As discussed in Section VI., EPA is 

proposing several options for shortening 

the timeframe addressed by 

transportation plan and TIP conformity 

determinations, and in some cases, 

regional emissions analyses. These 

changes are proposed in accordance 

with new Clean Air Act provisions from 

SAFETEA–LU. The proposed changes to 

§ § 93.116(a) and 93.109(l)(2)(i) will 

ensure that project-level hot-spot 

analyses examine the appropriate time 

period, even if the timeframe of the 

long-range transportation plan or TIP 

conformity determination or regional 

emissions analysis is shortened. The 

SAFETEA–LU amendments allowing an 

election to shorten the timeframe 

covered by conformity determinations 

apply only to transportation plan and 

TIP conformity determinations, not 

project-level conformity determinations. 

Second, EPA is proposing a technical 

clarification to § 93.123(b)(1)(i) to 

address some confusion in the field 

since our March 10, 2006, final rule (71 

FR 12468). Section 93.123(b)(1)(i) of the 

current rule requires PM2.5 or PM10 hotspot analyses to be completed for ‘‘New 

or expanded highway projects that have 

a significant number of or significant 

increase in diesel vehicles;* * *’’ EPA 

is proposing to clarify this provision as 

‘‘New highway projects that have a 

significant number of diesel vehicles, 

and expanded projects that have a 

significant increase in the number of 

diesel vehicles.’’ 

Since the March 2006 final rule was 

promulgated, EPA has received several 

questions regarding what types of new 

and expanded highway projects are 

covered by § 93.123(b)(1)(i). For 

example, some state and local 

transportation agencies have asked how 

the current rule’s reference to a 

‘‘significant increase in diesel vehicles’’ 

applies to new highway projects. 

Although DOT and EPA have answered 

these and other questions,13 clarifying 

this provision of the conformity rule 

will assist planners as they implement 

the rule in the future. Again, today’s 

proposal does not change the type of 

new or expanded highway projects that 

would require PM2.5 or PM10 hot-spot 

analyses for transportation conformity 

purposes; we are simply clarifying the 

current provision through a grammatical 

change. 

F. Minor Revision for Terms Used to 

Describe Transportation Plan Revisions 

EPA is also proposing a minor 

revision to how § § 93.104(b)(2) and 

93.105(c)(1)(v) describe transportation 

plan changes that require conformity 

determinations, but are not 

comprehensive transportation plan 

updates. EPA is proposing to change 

references for transportation plan 

‘‘revision(s)’’ to be transportation plan 

‘‘amendment(s),’’ in order to be 

consistent with the proposed planning 

definitions in DOT’s February 14, 2007, 

final transportation planning regulations 

(72 FR 7224). Today’s proposed changes 

would also provide consistency between 

how mid-cycle transportation plan and 

TIP changes are currently described in 

the conformity rule. Section 93.104(c)(2) 

currently requires conformity 

determinations for a TIP ‘‘amendment,’’ 

rather than a ‘‘revision.’’ The proposal 

would not change the substantive 

requirements for when a conformity 

determination is required for 

transportation plan changes. In 

addition, the minor wording change to 

§ 93.105(c)(1)(v) would not require a 

conformity SIP revision. 

G. Minor Revision to Reference for 

Public Consultation Provision 

EPA is proposing to update one of the 

references in § 93.105(e) of the 

conformity rule to be consistent with 

DOT’s transportation planning 

regulations. Section 93.105(e) describes 

the procedures for consulting with the 

general public on conformity 

determinations. This provision 

currently refers to 23 CFR 450.316(b) of 

DOT’s transportation planning 

regulations, which describes how public 

involvement occurs during the 

development of transportation plans 

and TIPs. 

EPA is proposing to change the 

reference in § 93.105(e) to be 23 CFR 

450.316(a), so that the conformity rule is 

consistent with DOT’s planning 

regulations. In its February 14, 2007, 

final rule (72 FR 7224), DOT 

reorganized 23 CFR 450.316 to reflect 

the new SAFETEA–LU statute. DOT 

moved the public consultation 

procedures that EPA has historically 

relied upon in the conformity rule from 

23 CFR 450.316(b) to 23 CFR 450.316(a). 

Today’s proposal would simply update 

the conformity rule to reflect this 

change in the planning regulations. 

Today’s proposal would not change 

the substantive requirements for the 

public consultation requirements for 

conformity determinations. In addition, 

the proposal would not require a state 

to revise its conformity SIP, since the 

proposal involves an administrative 

change to one reference in DOT’s 

regulations. EPA has not required 

conformity SIP revisions for similar 

reference changes in the past; the public 

participation requirements in existing 

approved conformity SIPs can be 

implemented as intended even if they 

do not reflect the most current citation 

in DOT’s regulations. 

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24490 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

XII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735; October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal and policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

any changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

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 51.390 

and part 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 transportationsource 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. 

This action does not impose any new 

information collection burden or any 

new information collection 

requirements. However, the Office of 

Management and Budget has previously 

approved the information collection 

requirements under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements of EPA’s existing 

transportation conformity rule and the 

proposed revisions in today’s action are 

addressed by two information collection 

requests (ICRs). Requirements for carbon 

monoxide, PM10, nitrogen dioxide, and 

1-hour ozone nonattainment and 

maintenance areas are covered under 

the DOT ICR entitled, ‘‘Metropolitan 

and Statewide Transportation 

Planning,’’ with the OMB control 

number of 2132–0529. Requirements 

related to PM2.5 and 8-hour ozone 

nonattainment and maintenance areas 

are covered by the EPA ICR entitled, 

‘‘Transportation Conformity 

Determinations for Federally Funded 

and Approved Transportation Plans, 

Programs and Projects Under the New 8- 

hour Ozone and PM2.5 National Ambient 

Air Quality Standards,’’ with OMB 

control number 2060–0561, EPA ICR 

number 2130.02. 

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, verifying, processing, 

maintaining, 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 collect 

information, and a person is not 

required to respond to an agency’s 

request for information unless it has a 

currently valid OMB control number. 

The OMB control numbers for EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of rules 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the Agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small not-forprofit organizations and small 

government jurisdictions. 

For purposes of assessing the impacts 

of today’s proposed 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 

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 that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed 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. We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

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 by state, local, and 

tribal governments, in the aggregate, or 

by 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 

proposal itself does not contain a federal 

mandate that may result in expenditures 

of $100 million or more by state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

The primary purpose of this proposal is 

to amend the conformity rule to be 

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Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24491 

consistent with Clean Air Act section 

176(c) as amended by SAFETEA–LU. 

The Clean Air Act amendments made by 

SAFETEA–LU were intended to reduce 

the burden of demonstrating conformity 

in designated nonattainment and 

maintenance areas subject to conformity 

requirements. Thus, although this 

proposal explains how to implement 

these Clean Air Act amendments, 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 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. 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. This rule will not 

significantly or uniquely impact small 

governments because it 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. Additionally, this 

proposal explains how to implement 

Clean Air Act requirements, as such it 

merely implements already established 

law that imposes conformity 

requirements and does not itself impose 

requirements. 

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 states, on 

the relationship between the national 

government and 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 

proposed 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 communication 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 proposal 

would amend the conformity rule to be 

consistent with Clean Air Act section 

176(c) as amended by SAFETEA–LU. 

The Clean Air Act amendments made by 

SAFETEA–LU affect nonattainment and 

maintenance areas subject to conformity 

requirements. This proposed rule does 

not have tribal implcations, as specified 

in Executive Order 13175. Accordingly, 

Executive Order 13175 does not apply 

to this rule. 

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 

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 proposed rule is not subject to 

Executive Order 13045 because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This 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 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 

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., material 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 proposal does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

List of Subjects in 40 CFR Parts 51 and 

93 

Administrative practice and 

procedure, Air pollution control, Carbon 

monoxide, Clean Air Act, 

Environmental protection, Highways 

and roads, Intergovernmental relations, 

Mass transportation, Nitrogen Dioxide, 

Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds. 

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24492 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

Dated: April 18, 2007. 

Stephen L. Johnson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR parts 51 and 93 are 

proposed to be amended as follows: 

PART 51—[AMENDED] 

1. An authority citation for subpart T 

of part 51 is added to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

Subpart T—[Amended] 

2. Section 51.390 is revised to read as 

follows: 

§ 51.390 Implementation plan revision. 

(a) Purpose and applicability. The 

federal conformity rules under part 93, 

subpart A, of this chapter, in addition to 

any existing applicable state 

requirements, establish the conformity 

criteria and procedures necessary to 

meet the requirements of Clean Air Act 

section 176(c) until such time as EPA 

approves the conformity 

implementation plan revision required 

by this subpart. A state with an area 

subject to this subpart and part 93, 

subpart A, of this chapter must submit 

to EPA a revision to its implementation 

plan which contains criteria and 

procedures for DOT, MPOs and other 

state or local agencies to assess the 

conformity of transportation plans, 

programs, and projects, consistent with 

this subpart and part 93, subpart A, of 

this chapter. The federal conformity 

regulations contained in part 93, subpart 

A, of this chapter would continue to 

apply for the portion of the 

requirements that the state did not 

include in its conformity 

implementation plan and the portion, if 

any, of the state’s conformity provisions 

that is not approved by EPA. In 

addition, any previously applicable 

implementation plan conformity 

requirements remain enforceable until 

the state submits a revision to its 

applicable implementation plan to 

specifically remove them and that 

revision is approved by EPA. 

(b) Conformity implementation plan 

content. To satisfy the requirements of 

Clean Air Act section 176(c)(4)(E), the 

implementation plan revision required 

by this section must include the 

following three requirements of part 93, 

subpart A, of this chapter: § § 93.105, 

93.122(a)(4)(ii), and 93.125(c). A state 

may elect to include any other 

provisions of part 93, subpart A. If the 

provisions of the following sections of 

part 93, subpart A, of this chapter are 

included, such provisions must be 

included in verbatim form, except 

insofar as needed to clarify or to give 

effect to a stated intent in the revision 

to establish criteria and procedures 

more stringent than the requirements 

stated in this chapter: § § 93.101, 

93.102, 93.103, 93.104, 93.106, 93.109, 

93.110, 93.111, 93.112, 93.113, 93.114, 

93.115, 93.116, 93.117, 93.118, 93.119, 

93.120, 93.121, 93.126, and 93.127. A 

state’s conformity provisions may 

contain criteria and procedures more 

stringent than the requirements 

described in this subpart and part 93, 

subpart A, of this chapter only if the 

state’s conformity provisions apply 

equally to non-federal as well as federal 

entities. 

(c) Timing and approval. A state must 

submit this revision to EPA by 

November 25, 1994 or within 12 months 

of an area’s redesignation from 

attainment to nonattainment, if the state 

has not previously submitted such a 

revision. The state must also revise its 

conformity implementation plan within 

12 months of the date of publication of 

any final amendments to § § 93.105, 

93.122(a)(4)(ii), and 93.125(c) of this 

chapter, as appropriate. Any other 

portions of part 93, subpart A, of this 

chapter that the state has included in its 

conformity implementation plan and 

EPA has approved must be revised in 

the state’s implementation plan and 

submitted to EPA within 12 months of 

the date of publication of any final 

amendments to such sections. EPA will 

provide DOT with a 30-day comment 

period before taking action to approve 

or disapprove the submission. In order 

for EPA to approve the implementation 

plan revision submitted to EPA under 

this subpart, the plan revision must 

address and give full legal effect to the 

following three requirements of part 93, 

subpart A: § § 93.105, 93.122(a)(4)(ii), 

and 93.125(c) of this chapter. Any other 

provisions that are incorporated into the 

conformity implementation plan must 

also be done in a manner that gives 

them full legal effect. Following EPA 

approval of the state conformity 

provisions (or a portion thereof) in a 

revision to the state’s conformity 

implementation plan, conformity 

determinations will be governed by the 

approved (or approved portion of the) 

state criteria and procedures as well as 

any applicable portions of the federal 

conformity rules that are not addressed 

by the approved conformity SIP. 

PART 93—[AMENDED] 

3. The authority citation for part 93 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

4. Section 93.101 is amended by: 

a. Revising the definitions for 

‘‘Metropolitan planning organization 

(MPO)’’ and ‘‘Transportation 

improvement program (TIP)’’; and 

b. Revising the first sentence of the 

definition for ‘‘Transportation control 

measure (TCM)’’. 

The revisions read as follows: 

§ 93.101 Definitions. 

* * * * * 

Metropolitan planning organization 

(MPO) means the policy board of an 

organization created as a result of the 

designation process in 23 U.S.C. 134(d). 

* * * * * 

Transportation control measure 

(TCM) is any measure that is specifically 

identified and committed to in the 

applicable implementation plan, 

including a substitute or additional 

TCM that is incorporated into the 

applicable SIP through the process 

established in CAA section 176(c)(8), 

that is either one of the types listed in 

CAA section 108, or any other measure 

for the purpose of reducing emissions or 

concentrations of air pollutants from 

transportation sources by reducing 

vehicle use or changing traffic flow or 

congestion conditions. * * * 

Transportation improvement program 

(TIP) means a transportation 

improvement program developed by a 

metropolitan planning organization 

under 23 U.S.C. 134(j). 

* * * * * 

§ 93.102 [Amended] 

5. Section 93.102 is amended as 

follows: 

a. In paragraph (b)(2)(v), revising 

‘‘sulfur oxides (SOx)’’ to read ‘‘sulfur 

dioxide (SO2)’’; and 

b. In paragraph (b)(4), revising ‘‘for 20 

years from the date EPA approves the 

area’s request under section 107(d) of 

the CAA for redesignation to 

attainment’’ to read ‘‘through the last 

year of a maintenance area’s approved 

CAA section 175A(b) maintenance 

plan’’. 

6. Section 93.104 is amended as 

follows: 

a. By revising paragraphs (b)(2), (b)(3), 

and (c)(3); 

b. By revising paragraph (e) 

introductory text; and 

c. By adding paragraph (f). 

§ 93.104 Frequency of conformity 

determinations. 

* * * * * 

(b) * * * 

(1) * * * 

(2) All transportation plan 

amendments must be found to conform 

before the transportation plan 

amendments are approved by the MPO 

or accepted by DOT, unless the 

amendment merely adds or deletes 

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exempt projects listed in § 93.126 or §

93.127. The conformity determination 

must be based on the transportation 

plan and the amendment taken as a 

whole. 

(3) The MPO and DOT must 

determine the conformity of the 

transportation plan (including a new 

regional emissions analysis) no less 

frequently than every four years. If more 

than four years elapse after DOT’s 

conformity determination without the 

MPO and DOT determining conformity 

of the transportation plan, a 12-month 

grace period will be implemented as 

described in paragraph (f) of this 

section. At the end of this 12-month 

grace period, the existing conformity 

determination will lapse. 

(c) * * * 

(3) The MPO and DOT must 

determine the conformity of the TIP 

(including a new regional emissions 

analysis) no less frequently than every 

four years. If more than four years 

elapse after DOT’s conformity 

determination without the MPO and 

DOT determining conformity of the TIP, 

a 12-month grace period will be 

implemented as described in paragraph 

(f) of this section. At the end of this 12- 

month grace period, the existing 

conformity determination will lapse. 

* * * * * 

(e) Triggers for transportation plan 

and TIP conformity determinations. 

Conformity of existing transportation 

plans and TIPs must be redetermined 

within two years of the following, or 

after a 12-month grace period (as 

described in paragraph (f) of this 

section) the existing conformity 

determination will lapse, and no new 

project-level conformity determinations 

may be made until conformity of the 

transportation plan and TIP has been 

determined by the MPO and DOT: 

* * * * * 

(f) Lapse grace period. During the 12- 

month grace period referenced in 

paragraphs (b)(3), (c)(3), and (e) of this 

section, a project may be found to 

conform according to the requirements 

of this part if: 

(1) The project is included in the 

currently conforming transportation 

plan and TIP (or regional emissions 

analysis); or 

(2) The project is included in the most 

recent conforming transportation plan 

and TIP (or regional emissions analysis). 

§ 93.105 [Amended] 

7. Section 93.105 is amended by 

removing ‘‘revisions or’’ in paragraph 

(c)(1)(v), and by revising the reference 

‘‘23 CFR 450.316(b)’’ in paragraph (e) to 

read as ‘‘23 CFR 450.316(a)’’. 

8. Section 93.106 is amended as 

follows: 

a. By revising the section heading; 

b. By revising paragraphs (a)(1)(iii) 

and (iv); 

c. By adding new paragraph (a)(v); 

d. By redesignating paragraph (d) as 

paragraph (e); and 

e. By adding new paragraph (d). 

§ 93.106 Content of transportation plans 

and timeframe of conformity 

determinations. 

(a) * * * 

(1) * * * 

(iii) The attainment year must be a 

horizon year if it is in the timeframe of 

the transportation plan and conformity 

determination; 

(iv) The last year of the transportation 

plan’s forecast period must be a horizon 

year; and 

(v) If the timeframe of the conformity 

determination has been shortened under 

paragraph (d) of this section, the last 

year of the timeframe of the conformity 

determination must be a horizon year. 

* * * * * 

(d) Timeframe of conformity 

determination. (1) Unless an election is 

made under paragraph (d)(2) or (d)(3) of 

this section, the timeframe of the 

conformity determination must be 

through the last year of the 

transportation plan’s forecast period. 

(2) For areas that do not have an 

adequate or approved CAA section 

175A(b) maintenance plan, the MPO 

may elect to shorten the timeframe of 

the transportation plan and TIP 

conformity determination, after 

consultation with state and local air 

quality agencies, solicitation of public 

comments, and consideration of such 

comments. 

(i) The shortened timeframe of the 

conformity determination must be the 

longest of the following: 

(A) The tenth year of the 

transportation plan; 

(B) The latest year in the submitted or 

applicable implementation plan that 

contains an adequate or approved motor 

vehicle emissions budget(s); or 

(C) The year after the completion date 

of a regionally significant project if the 

project is included in the TIP or the 

project requires approval before the 

subsequent conformity determination. 

(ii) The conformity determination 

must be accompanied by a regional 

emissions analysis (for informational 

purposes only) for the last year of the 

transportation plan and for any year 

shown to exceed motor vehicle 

emissions budgets in a prior regional 

emissions analysis, if such a year 

extends beyond the timeframe of the 

conformity determination. 

(3) For areas that have an adequate or 

approved CAA section 175A(b) 

maintenance plan, the MPO may elect to 

shorten the timeframe of the conformity 

determination to extend through the last 

year of such maintenance plan after 

consultation with state and local air 

quality agencies, solicitation of public 

comments, and consideration of such 

comments. 

(4) Any election made by an MPO 

under paragraphs (d)(2) or (d)(3) of this 

section shall continue in effect until the 

MPO elects otherwise, after consultation 

with state and local air quality agencies, 

solicitation of public comments, and 

consideration of such comments. 

* * * * * 

§ 93.109 [Amended] 

9. Section 93.109 is amended as 

follows: 

a. By removing ‘‘, subject to the 

exception in paragraph (e)(2)(v)’’ in the 

introductory text of paragraph (e)(2); 

b. By removing paragraph (e)(2)(v); 

and 

c. By revising in paragraph (l)(2)(i) 

‘‘§ § 93.118 and 93.119’’ to read ‘‘§ §

93.106(d), 93.116, 93.118, and 93.119’’ 

and by adding to the end of this same 

paragraph, ‘‘When the requirements of §

93.106(d) apply to isolated rural 

nonattainment and maintenance areas, 

references to ‘‘MPO’’ should be taken to 

mean the state department of 

transportation.’’ 

10. Section 93.114 is amended by 

revising the introductory text to read as 

follows: 

§ 93.114 Criteria and procedures: 

Currently conforming transportation plan 

and TIP. 

There must be a currently conforming 

transportation plan and currently 

conforming TIP at the time of project 

approval, or a project must meet the 

requirements in § 93.104(f) during the 

12-month lapse grace period. 

* * * * * 

11. Section 93.115 is amended by 

revising the section heading and adding 

a new paragraph (e) to read as follows: 

§ 93.115 Criteria and procedures: Projects 

from a transportation plan and TIP. 

* * * * * 

(e) Notwithstanding the requirements 

of paragraphs (a), (b), and (c) of this 

section, a project must meet the 

requirements of § 93.104(f) during the 

12-month lapse grace period. 

§ 93.116 [Amended] 

12. Section 93.116 is amended by 

removing in paragraph (a) ‘‘(or regional 

emissions analysis)’’. 

13. Section 93.118 is amended as 

follows: 

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a. By revising paragraph (b) 

introductory text; 

b. By revising the first sentence in 

paragraph (d)(2); and 

c. By adding new paragraph (d)(3) to 

read as follows: 

§ 93.118 Criteria and procedures: Motor 

vehicle emissions budget. 

* * * * * 

(b) Consistency with the motor 

vehicle emissions budget(s) must be 

demonstrated for each year for which 

the applicable (and/or submitted) 

implementation plan specifically 

establishes motor vehicle emissions 

budget(s), for the attainment year (if it 

is within the timeframe of the 

transportation plan and conformity 

determination), for the last year of the 

timeframe of the conformity 

determination (as described under §

93.106(d)), and for any intermediate 

years within the timeframe of the 

conformity determination as necessary 

so that the years for which consistency 

is demonstrated are no more than ten 

years apart, as follows: 

* * * * * 

(d) * * * 

(2) The regional emissions analysis 

may be performed for any years in the 

timeframe of the conformity 

determination (as described under §

93.106(d)) provided they are not more 

than ten years apart and provided the 

analysis is performed for the attainment 

year (if it is in the timeframe of the 

transportation plan and conformity 

determination) and the last year of the 

timeframe of the conformity 

determination. * * * 

(3) When the timeframe of the 

conformity determination is shortened 

under § 93.106(d)(2), the conformity 

determination must be accompanied by 

a regional emissions analysis (for 

informational purposes only) for the last 

year of the transportation plan, and for 

any year shown to exceed motor vehicle 

emissions budgets in a prior regional 

emissions analysis (if such a year 

extends beyond the timeframe of the 

conformity determination). 

* * * * * 

14. Section 93.119 is amended to read 

as follows: 

a. In paragraph (f)(10), by revising 

‘‘SOX’’ to read ‘‘SO2’’; 

b. By revising the last sentence in 

paragraph (g)(1); and 

c. By adding new paragraph (g)(3). 

§ 93.119 Criteria and procedures: Interim 

emissions in areas without motor vehicle 

emissions budgets. 

* * * * * 

(g) * * * 

(1) * * * The last year of the 

timeframe of the conformity 

determination (as described under §

93.106(d)) must also be an analysis year. 

* * * * * 

(3) When the timeframe of the 

conformity determination is shortened 

under § 93.106(d)(2), the conformity 

determination must be accompanied by 

a regional emissions analysis (for 

informational purposes only) for the last 

year of the transportation plan. 

* * * * * 

15. Section 93.120 is amended by 

revising paragraph (a)(2) to read as 

follows: 

§ 93.120 Consequences of control 

strategy implementation plan failures. 

(a) * * * 

(1) * * * 

(2) If EPA disapproves a submitted 

control strategy implementation plan 

revision without making a protective 

finding, only projects in the currently 

conforming TIP or that meet the 

requirements of § 93.104(f) during the 

12-month lapse grace period may be 

found to conform. This means that 

beginning on the effective date of a 

disapproval without a protective 

finding, no transportation plan, TIP, or 

project not in the currently conforming 

TIP or that meets the requirements of §

93.104(f) during the 12-month lapse 

grace period may be found to conform 

until another control strategy 

implementation plan revision fulfilling 

the same CAA requirements is 

submitted, EPA finds its motor vehicle 

emissions budget(s) adequate pursuant 

to § 93.118 or approves the submission, 

and conformity to the implementation 

plan revision is determined. 

16. Section 93.121 is amended by 

revising paragraphs (a)(1) and (2) to read 

as follows: 

§ 93.121 Requirements for adoption or 

approval of projects by other recipients of 

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

the Federal Transit Laws. 

(a) * * * 

(1) The project comes from the 

currently conforming transportation 

plan and TIP (or meets the requirements 

of § 93.104(f) during the 12-month lapse 

grace period), and the project’s design 

concept and scope have not changed 

significantly from those that were 

included in the regional emissions 

analysis for that transportation plan and 

TIP; 

(2) The project is included in the 

regional emissions analysis for the 

currently conforming transportation 

plan and TIP conformity determination 

(or meets the requirements of §

93.104(f) during the 12-month lapse 

grace period), even if the project is not 

strictly included in the transportation 

plan or TIP for the purpose of MPO 

project selection or endorsement, and 

the project’s design concept and scope 

have not changed significantly from 

those that were included in the regional 

emissions analysis; or 

* * * * * 

17. Section 93.123 is amended by 

adding paragraph (a)(3) and revising 

paragraph (b)(1)(i) to read as follows: 

§ 93.123 Procedures for determining 

localized CO, PM10, and PM2.5

concentrations (hot-spot analysis). 

(a) * * * 

(3) DOT, in consultation with EPA, 

may also choose to make a categorical 

hot-spot finding that § 93.116(a) is met 

without further hot-spot analysis for any 

project described in paragraphs (a)(1) 

and (a)(2) of this section based on 

appropriate modeling. DOT, in 

consultation with EPA, may also 

consider the current air quality 

circumstances of a given CO 

nonattainment or maintenance area in 

categorical hot-spot findings for 

applicable FHWA or FTA projects. 

(b) * * * 

(1) * * * 

(i) New highway projects that have a 

significant number of diesel vehicles, 

and expanded highway projects that 

have a significant increase in the 

number of diesel vehicles; 

* * * * * 

§ 93.126 [Amended] 

18. Section 93.126, Table 2 is 

amended by revising ‘‘Hazard 

elimination program’’ to read ‘‘Projects 

that correct, improve, or eliminate a 

hazardous location or feature’’, ‘‘Safety 

improvement program’’ to read 

‘‘Highway Safety Improvement Program 

implementation’’, and ‘‘Pavement 

marking demonstration’’ to read 

‘‘Pavement marking’’. 

[FR Doc. E7–7770 Filed 5–1–07; 8:45 am] 

BILLING CODE 6560–50–P 

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