[Federal Register Volume 72, Number 84 (Wednesday, May 2, 2007)]
[Proposed Rules]
[Pages 24472-24494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7770]



[[Page 24471]]

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Part IV





Environmental Protection Agency





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40 CFR Parts 51 and 93



 Transportation Conformity Rule Amendments to Implement Provisions 
Contained in the 2005 Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Proposed 
Rule

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

[[Page 24472]]


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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.

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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 href="/cdn-cgi/l/email-protection#72135f131c165f005f161d11191706321702135c151d04"><span class="__cf_email__" data-cfemail="fb9ad69a959fd689d69f9498909e8fbb9e8b9ad59c948d">[email protected]</span></a>.
    <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: <a href="/cdn-cgi/l/email-protection#deb5bfaeb7bdb6bfb5f0acabbab1b2aeb69ebbaebff0b9b1a8"><span class="__cf_email__" data-cfemail="95fef4e5fcf6fdf4febbe7e0f1faf9e5fdd5f0e5f4bbf2fae3">[email protected]</span></a>, 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: <a href="/cdn-cgi/l/email-protection#5b393e29292275373a2e293a1b3e2b3a753c342d"><span class="__cf_email__" data-cfemail="96f4f3e4e4efb8faf7e3e4f7d6f3e6f7b8f1f9e0">[email protected]</span></a>, 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:

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                Category                  Examples of regulated entities
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Local government.......................  Local transportation and air
                                          quality agencies, including
                                          metropolitan planning
                                          organizations (MPOs).

[[Page 24473]]

 
State government.......................  State transportation and air
                                          quality agencies.
Federal government.....................  Department of Transportation
                                          (Federal Highway
                                          Administration (FHWA) and
                                          Federal Transit Administration
                                          (FTA)).
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    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 
transportation-related criteria pollutants: Ozone, particulate matter 
(PM<INF>2.5</INF> and PM<INF>10</INF>),\1\ carbon monoxide (CO), and 
nitrogen dioxide (NO<INF>2</INF>). 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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    \1\ 40 CFR 93.102(b)(1) defines PM<INF>2.5</INF> and 
PM<INF>10</INF> as particles with an aerodynamic diameter less than 
or equal to a nominal 2.5 and 10 micrometers, respectively.

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[[Page 24474]]

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 PM<INF>2.5</INF> 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 
PM<INF>2.5</INF> National Ambient Air Quality Standard: 
PM<INF>2.5</INF> Precursors'' (70 FR 24280). This final rule specified 
transportation-related PM<INF>2.5</INF> precursors and when they apply 
in transportation conformity determinations in PM<INF>2.5</INF> 
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 PM<INF>2.5</INF> and PM<INF>10</INF> nonattainment 
and maintenance areas. This rule established requirements in 
PM<INF>2.5</INF> areas and revised existing requirements in 
PM<INF>10</INF> 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 Sec.  93.104(b)(3) to require that the MPO 
and DOT determine conformity of a transportation plan at least every 
four years, and Sec.  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 Sec.  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 mid-cycle, 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

[[Page 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 Sec.  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 Sec.  
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 Sec.  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 
three-year 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 Sec.  
93.120(a)(2) would no longer include the phrase ``conforming 
transportation plan,'' the requirements of Sec.  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 Sec.  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 Sec.  
93.104(e). Therefore, EPA is merely proposing to align the deadline in 
Sec.  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

[[Page 24476]]

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 Sec.  93.104(b)(3) 
and Sec.  93.104(c)(3) (see Section III.),
    <bullet> The requirement to determine conformity within two years 
of a trigger under Sec.  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\
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    \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).
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    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 Sec.  93.104(f), which would provide 
the rules to allow projects to meet conformity requirements \3\ during 
the lapse grace period.
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    \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.
---------------------------------------------------------------------------

    <bullet> New Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  93.114, 
93.115, and 93.121 by including a reference to Sec.  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, Sec.  93.121 currently requires that regionally 
significant non-federal 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 non-
federal 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

[[Page 24477]]

exist as the currently conforming transportation plan and TIP during 
the lapse grace period.
    Through Sec.  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 Sec.  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 Sec.  93.104(f)(2) that non-exempt 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\
---------------------------------------------------------------------------

    \4\ Joint Explanatory Statement of the Committee of Conference, 
``Section 6011, Transportation Conformity,'' p. 1060.

    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

[[Page 24478]]

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\
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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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \6\ This one-year grace period for newly designated areas most 
recently applied to the areas designated for the 8-hour ozone and 
PM<INF>2.5</INF> standards. All of these metropolitan areas have at 
this point determined transportation plan/TIP conformity.
---------------------------------------------------------------------------

    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 Sec.  
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.
---------------------------------------------------------------------------

    \7\ Such disapprovals occur infrequently; EPA has only 
disapproved SIPs without a protective finding in three instances 
since the 1997 conformity rule was promulgated.
---------------------------------------------------------------------------

    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

[[Page 24479]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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

[[Page 24480]]

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 Sec.  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 Sec.  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 Sec.  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

[[Page 24481]]

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 Sec.  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 
Sec.  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\''
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 Sec.  
93.109(l)(2)(i) by including a reference to Sec.  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 
Sec.  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 Sec.  
93.109(l)(2)(i), which addresses isolated rural areas, that references 
to the MPO in Sec.  93.106(d) should be taken to mean the state DOT.

[[Page 24482]]

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 Sec.  93.106, 
and is also proposing changes in Sec. Sec.  93.118 and 93.119.\10\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> First, today's proposal would rename Sec.  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 Sec.  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 Sec. Sec.  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

[[Page 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 Sec.  93.119 that apply under a full transportation 
plan-length 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 Sec.  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

[[Page 24484]]

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.
---------------------------------------------------------------------------

    \11\ Joint Explanatory Statement of the Committee of Conference, 
``Section 6011, Transportation Conformity,'' p. 1059.
---------------------------------------------------------------------------

    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 information-only 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 project-level 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 Sec.  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

[[Page 24485]]

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 Sec.  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

[[Page 24486]]

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 hot-spot 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 
PM<INF>2.5</INF> and PM<INF>10</INF> nonattainment and maintenance 
areas. The current conformity rule allows DOT, in consultation with 
EPA, to make a ``categorical hot-spot finding'' in PM<INF>2.5</INF> and 
PM<INF>10</INF> 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 hot-spot 
findings in PM<INF>2.5</INF> or PM<INF>10</INF> 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 Sec.  93.123(a)(3).
---------------------------------------------------------------------------

    \12\ As discussed further below, categorical hot-spot 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.
---------------------------------------------------------------------------

    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

[[Page 24487]]

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 hot-spot 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 federally-supported transportation projects must not 
``cause or contribute to any new violation of any standard in any area; 
increase the frequency or severity of any existing violation of any 
standard in any area; or delay timely attainment of any standard or any 
required interim emission reductions or other milestones in any area.''
    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 hot-spot 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 PM<INF>2.5</INF> and PM<INF>10</INF> 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 PM<INF>2.5</INF> and 
PM<INF>10</INF> 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 non-exempt 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 
hot-spot 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 project-level 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

[[Page 24488]]

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 
Sec.  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 Sec.  93.102(b)(4)

    EPA is proposing a minor revision to Sec.  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 Sec.  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 Sec. Sec.  93.102(b)(2)(v) and 
93.119(f)(10)

    EPA is proposing corrections to Sec. Sec.  93.102(b)(2)(v) and 
93.119(f)(10) to change ``sulfur oxides'' to ``sulfur dioxide'' and 
``SO<INF>X</INF>'' to ``SO<INF>2</INF>.'' In the May 6, 2005, 
transportation conformity final rule (70 FR 24279), EPA finalized 
requirements for PM<INF>2.5</INF> precursors. In that final rulemaking, 
we included ``sulfur oxides'' as one of the precursors and referred to 
sulfur oxides as SO<INF>X</INF>. Since that rulemaking was finalized, 
EPA has proposed the PM<INF>2.5</INF> implementation rule (70 FR 65984) 
and indicated that sulfur dioxide (SO<INF>2</INF>) would be regulated 
as a PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 
implementation strategy. This proposed change would not impact current 
conformity practice.

C. Revisions to ``Table 2--Exempt Projects'' in Sec.  93.126

    EPA is proposing several minor clarifications to ``Table 2--Exempt 
Projects'' in Sec.  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

[[Page 24489]]

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 Sec.  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 Sec. Sec.  
93.109(l)(2)(i) and 93.116(a) to ensure that CO, PM<INF>10</INF>, and 
PM<INF>2.5</INF> 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 Sec.  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 Sec.  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 Sec. Sec.  
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 Sec.  
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 PM<INF>2.5</INF> or PM<INF>10</INF> hot-spot 
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 Sec.  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 PM<INF>2.5</INF> or PM<INF>10</INF> hot-
spot analyses for transportation conformity purposes; we are simply 
clarifying the current provision through a grammatical change.
---------------------------------------------------------------------------

    \13\ Questions and answers for PM<INF>2.5</INF> and 
PM<INF>10</INF> hot-spot analysis requirements can be found at 
FHWA's Web site: http://www.fhwa.dot.gov/environment/conformity/pm25faqs.htm.
---------------------------------------------------------------------------

F. Minor Revision for Terms Used to Describe Transportation Plan 
Revisions

    EPA is also proposing a minor revision to how Sec. Sec.  
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 Sec.  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 Sec.  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 Sec.  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.

[[Page 24490]]

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 
transportation-source criteria pollutants. The Clean Air Act gives EPA 
the statutory authority to establish the criteria and procedures for 
determining whether transportation activities conform to the SIP.
    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, PM<INF>10</INF>, 
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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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-for-profit 
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-for-profit 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 cost-effective 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

[[Page 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.


[[Page 24492]]


    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:


Sec.  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: Sec. Sec.  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: Sec. Sec.  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 Sec. Sec.  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: Sec. Sec.  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:


Sec.  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).
* * * * *


Sec.  93.102  [Amended]

    5. Section 93.102 is amended as follows:
    a. In paragraph (b)(2)(v), revising ``sulfur oxides 
(SO<INF>x</INF>)'' to read ``sulfur dioxide (SO<INF>2</INF>)''; 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).


Sec.  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

[[Page 24493]]

exempt projects listed in Sec.  93.126 or Sec.  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).


Sec.  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).


Sec.  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.
* * * * *


Sec.  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) ``Sec. Sec.  93.118 and 
93.119'' to read ``Sec. Sec.  93.106(d), 93.116, 93.118, and 93.119'' 
and by adding to the end of this same paragraph, ``When the 
requirements of Sec.  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:


Sec.  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 Sec.  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:


Sec.  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 Sec.  
93.104(f) during the 12-month lapse grace period.


Sec.  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:

[[Page 24494]]

    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:


Sec.  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 Sec.  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 
Sec.  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 Sec.  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 ``SO<INF>X</INF>'' to read 
``SO<INF>2</INF>'';
    b. By revising the last sentence in paragraph (g)(1); and
    c. By adding new paragraph (g)(3).


Sec.  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 Sec.  93.106(d)) must also be an 
analysis year.
* * * * *
    (3) When the timeframe of the conformity determination is shortened 
under Sec.  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:


Sec.  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 Sec.  
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 Sec.  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 Sec.  
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:


Sec.  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 Sec.  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 Sec.  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:


Sec.  93.123  Procedures for determining localized CO, PM<INF>10</INF>, 
and PM<INF>2.5</INF> concentrations (hot-spot analysis).

    (a) * * *
    (3) DOT, in consultation with EPA, may also choose to make a 
categorical hot-spot finding that Sec.  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;
* * * * *


Sec.  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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