43780 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 51 and 93

[FRL–5871–4]

RIN 2060–AG16

Transportation Conformity Rule

Amendments: Flexibility and

Streamlining

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today EPA promulgates a

clarified and more flexible

transportation conformity rule. The

conformity rule requires that

transportation plans, programs, and

projects conform to state air quality

implementation plans (SIPs) and

establishes the criteria and procedures

for determining whether or not they do.

Conformity to a SIP means that

transportation activities will not

produce new air quality violations,

worsen existing violations, or delay

timely attainment of the national

ambient air quality standards.

The conformity rule changes

promulgated today result from the

experience that EPA, the Department of

Transportation (DOT), and state and

local air and transportation officials

have had with implementation of the

rule since it was first published in

November of 1993. While these changes

clarify the rule and in some cases offer

increased flexibility, they will not result

in any negative change in health and

environmental benefits.

Today’s rule gives state and local

governments more authority in selecting

the performance measures used as tests

of conformity and more discretion when

a transportation plan does not conform

to a SIP. For example, the rule allows

motor vehicle emissions budgets in a

submitted SIP to be used to determine

conformity instead of the ‘‘build/nobuild’’ test, and rural areas can choose

among several conformity tests to

address the time period after that

covered by the SIP.

EFFECTIVE DATE: September 15, 1997.

ADDRESSES: Materials relevant to this

rulemaking are contained in Docket No.

A–96–05. The docket is located in room

M–1500 Waterside Mall (ground floor)

at the Environmental Protection Agency,

401 M Street SW., Washington, DC

20460. The docket may be inspected

from 8 a.m. to 5:30 p.m., Monday

through Friday, including all nongovernment holidays. For information

on electronic availability see

Supplementary Information.

FOR FURTHER INFORMATION CONTACT: Meg

Patulski, Transportation and Market

Incentives Group, Regional and State

Programs Division, U.S. Environmental

Protection Agency, 2565 Plymouth

Road, Ann Arbor, MI 48105,

patulski.meg@epamail.epa.gov. (313)

741–7842.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by the

conformity rule are those which 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 include:

Category Examples of regulated entities

Local government ...... Local transportation

and air quality

agencies.

State government ...... State transportation

and air quality

agencies.

Federal government .. Department of Transportation (Federal

Highway Administration and Federal

Transit Administration).

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this rule. This table lists the

types of entities that EPA is now aware

could potentially be regulated by the

conformity rule. Other types of entities

not listed in the table could also be

regulated. To determine whether your

organization is regulated by this action,

you should carefully examine the

applicability requirements in § 93.102 of

the conformity rule. If you have

questions regarding the applicability of

this action to a particular entity, consult

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Electronic Availability

The final rule is also available

electronically from the EPA internet

web site. Users are able to access and

download files on their first call using

a personal computer according to the

following information:

Internet Web Sites

http://www.epa.gov/docs/fedrgstr/EPAAIR/

(either select desired date or use Search

feature)

Or

http://www.epa.gov/OMSWWW/

(look in What’s New or under the

Conformity file area)

The electronic version of this final rule

should be available today on any of the

above-listed sites. Please note that due

to differences between the software used

to develop the document and the

software into which the document may

be downloaded, changes in format, page

length, etc. may occur.

The contents of this preamble are

listed in the following outline:

I. Background on Transportation Conformity

II. Replacement of Build/No-build Test With

Submitted SIPs

III. Other Comments on Conformity Tests

IV. Conformity Tests for Areas That Are Not

Required to Submit SIPs

V. Rural Nonattainment and Maintenance

Areas

VI. Mismatch in SIP/Transportation Plan

Timeframe

VII. Non-federal Projects

VIII. Deadline for Use of Network Models and

Affected Areas

IX. Content of Network Modeling

Requirements in Serious and Above

Ozone and CO Areas

X. Adding Non-Exempt Projects to the Plan/

TIP Without Regional Analysis

XI. Consequences of SIP Disapproval

XII. Traffic Signal Synchronization

XIII. Conformity SIPs

XIV. Hot-spot Tests

XV. TCM Flexibility

XVI. Conformity and the Proposed NAAQS

Revisions

XVII. Minor Changes to the Rule

XVIII. Administrative Requirements

I. Background on Transportation

Conformity

Today’s action amends the

transportation conformity rule, ‘‘Criteria

and Procedures for Determining

Conformity to State or Federal

Implementation Plans of Transportation

Plans, Programs, and Projects Funded or

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

Federal Transit Act’’ (58 FR 62188,

November 24, 1993). Required under

section 176(c) of the Clean Air Act as

amended in 1990, the transportation

conformity rule established the criteria

and procedures by which the Federal

Highway Administration (FHWA), the

Federal Transit Administration (FTA),

and metropolitan planning

organizations (MPOs) determine the

conformity of federally funded or

approved highway and transit plans,

programs, and projects to state air

quality implementation plans (SIPs).

Conformity ensures that transportation

plans, programs, and projects do not

produce new air quality violations,

worsen existing violations, or delay

timely attainment of national ambient

air quality standards (NAAQS).

According to the Clean Air Act,

federally supported activities must

conform to the implementation plan’s
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43781

purpose of attaining and maintaining

these standards.

Since publication of the

transportation conformity rule in

November 1993, EPA, the Department of

Transportation (DOT), and state and

local air and transportation officials

have had considerable experience

implementing the criteria and

procedures in the rule. This experience

has led to the streamlining, clarification,

and new opportunities for flexibility

found in today’s rule, which is the third

of a series of amendments to the

transportation conformity rule. In each

case, the amendments were needed to

clarify ambiguities, correct errors, or

make the conformity process more

logical and feasible.

The first set of amendments was

published as an interim final rule on

February 8, 1995 (60 FR 7449), and was

finalized on August 7, 1995 (60 FR

40098). The first set of amendments

aligned the dates of conformity lapses

(i.e., halting conformity determinations

for new federally funded highway/

transit projects) due to SIP failures with

the application of Clean Air Act

highway sanctions for certain ozone

areas and all areas with disapproved

SIPs with a protective finding (defined

below in section XI.).

The second set of amendments was

proposed on August 29, 1995 (60 FR

44790), and was finalized on November

14, 1995 (60 FR 57179). The second set

of amendments aligned the date of

conformity lapses with the date of

application of Clean Air Act highway

sanctions for any failure to submit or

submission of an incomplete control

strategy SIP; extended the grace period

before which areas must determine

conformity to a submitted control

strategy SIP; established a grace period

before which transportation plan and

program conformity must be determined

in newly designated nonattainment

areas; and corrected the nitrogen oxides

(NOX) provisions of the transportation

conformity rule to be consistent with

the NOX requirements of the Clean Air

Act and previous commitments made by

EPA.

The second set of amendments also

allowed any transportation control

measure (TCM) from an approved SIP to

proceed during a conformity lapse,

although EPA stated that it did not

intend to approve SIPs containing TCMs

that have not been coordinated through

the transportation planning process, as

required by 23 CFR part 450 and 49 CFR

part 613. The Clean Air Act and the

Intermodal Surface Transportation

Efficiency Act require that an integrated

transportation/air quality planning

process be used to identify effective

TCMs and ensure their funding sources.

The Notice of Proposed Rulemaking

for today’s rule was published in the

Federal Register on July 9, 1996 (61 FR

36111). This proposal was undertaken

in response to several issues raised by

conformity implementers and other

interested parties. EPA worked closely

with conformity stakeholders in

developing the proposal, and had input

from the National Governors’

Association (NGA), the Environmental

Council of States (ECOS), state DOTs,

state environmental agencies, MPOs,

environmentalists, industry groups,

other public interest groups, and DOT.

In 1995, meetings to discuss potential

amendments to the conformity rule

were held by NGA and ECOS as well as

the EPA. EPA developed draft

regulatory language in response and

sought comment from stakeholders.

The proposal’s comment period

ended September 9, 1996. EPA held a

public hearing for this proposal on

August 6, 1996. EPA received more than

50 comments from a variety of interests,

including MPOs, state and local air

quality agencies, state DOTs, NGA, and

environmentalists. Copies of comments

in their entirety can be obtained from

the docket for this rule (see ADDRESSES).

The docket also includes a complete

Response to Comments document for

this rule.

Since 1993, the transportation

conformity rule has been included in 40

CFR part 51 and largely duplicated in 40

CFR part 93. In order to streamline the

CFR and eliminate this duplication, the

only section of today’s conformity rule

that remains in 40 CFR part 51 is

§ 51.390, which requires a conformity

SIP revision. Part 51 is entitled,

‘‘Requirements for Preparation,

Adoption, and Submittal of

Implementation Plans.’’ The remainder

of the conformity rule is included in 40

CFR part 93, which is entitled,

‘‘Determining Conformity of Federal

Actions to State or Federal

Implementation Plans.’’

II. Replacement of Build/No-Build Test

With Submitted SIPs

A. Description of Final Rule

Today’s action finalizes the proposal

to eliminate the build/no-build test and

other emission reduction tests once a

control strategy SIP or maintenance plan

has been submitted to EPA and EPA has

had 45 days to review the SIP

submission and the adequacy of its

motor vehicle emissions budget(s) for

conformity purposes. This final rule

also includes regulatory text from the

proposal’s preamble which establishes

the minimum criteria that must be

satisfied in order for EPA to find a

submitted motor vehicle emissions

budget adequate for transportation

conformity purposes. EPA clarifies

today that submitted SIPs must already

meet these minimum criteria in order to

be approved; EPA is not imposing any

new requirements for submitted SIPs.

EPA described the minimum

adequacy criteria in the preamble to the

proposal (61 FR 36114, July 9, 1996),

and they are outlined as follows. In

accordance with this final rule, an area’s

submitted SIP must be endorsed by the

Governor (or his/her designee) and

subject to a public hearing in order for

EPA to find the submitted SIP adequate.

Prior to submitting the SIP, consultation

between federal, state, and local

agencies must occur. SIP development

must be documented and any technical

support information needed to review

the adequacy of the SIP must be

submitted to EPA. In addition, any

concerns stated by EPA must be

addressed before the SIP is submitted.

The emissions budget(s) must be clearly

identified and precisely quantified.

When considered with point, area, and

mobile sources, the emissions budget(s)

must be consistent with applicable

requirements for reasonable further

progress (RFP), attainment, or

maintenance, depending upon the

particular SIP submission. The SIP

budget(s) must be consistent with the

area’s emissions inventory for all

sources and a clear relationship among

the budget(s), control measures and

emissions inventory must be shown.

In addition, submitted SIPs must

explain and document any changes to

previously submitted motor vehicle

emissions budgets and control

measures; impacts on point and area

source emissions; any changes to

established safety margins; and reasons

for the changes, including the basis for

any changes related to emission factors

or estimates of vehicle miles traveled

(VMT). EPA is defining safety margin in

this final rule to be the amount by

which the total projected emissions

from all sources of a given pollutant are

less than the total emissions that would

satisfy the applicable Clean Air Act

requirement for RFP, attainment, or

maintenance.

EPA will interpret these adequacy

criteria to mean that if a submitted SIP’s

emissions budgets rely upon additional

control measures to demonstrate RFP,

attainment, or maintenance, such new

control measures must be specified in

the SIP submission. The submitted SIP

would need to quantify the emissions

impacts of any new control measures in

its revised SIP, and at a minimum,
43782 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

include commitments by appropriate

agencies for adoption and

implementation schedules, in addition

to draft regulations or other relevant

documents. These are minimum criteria

for adequacy of emissions budgets for

conformity purposes; an approvable SIP

must have adopted and enforceable

control measures.

Prior to EPA determining the

adequacy of a submitted SIP budget,

EPA will also review documentation

from the state’s public comment hearing

on the SIP submission and the state’s

responses to the public comments

received. This documentation is

currently required to be included in the

SIP package when it is submitted to EPA

for its review. EPA will send a letter to

the state documenting EPA’s finding of

adequacy or inadequacy, including

EPA’s consideration of public comment.

The conformity adequacy review is

separate from EPA’s completeness

review of a submitted SIP for purposes

of SIP processing. In addition, EPA’s 45-

day adequacy review should not be used

to prejudge EPA’s ultimate approval or

disapproval of the SIP. As stated in the

proposal, EPA cannot ensure that a

submitted SIP is consistent with RFP,

attainment, or maintenance until EPA

has completed its formal review process

and the SIP has been approved or

disapproved through notice-andcomment rulemaking. Although the

minimum criteria for adequacy allow

EPA to make a cursory review of the

submitted motor vehicle emissions

budget for conformity purposes, EPA

recognizes that other elements must also

be in the SIP for it to ultimately be

approved. Therefore, a budget that is

found adequate in the 45-day review

period could later be disapproved when

reviewed with the entire SIP

submission.

EPA will find a submitted motor

vehicle emissions budget inadequate if

the submitted budget does not meet the

minimum criteria. However, the criteria

included in the conformity rule are not

intended to be a comprehensive

definition of an adequate SIP for SIP

approval purposes.

EPA also clarifies that the 45-day

adequacy review period begins upon the

receipt of the SIP submission in the EPA

regional office.

Areas that submit SIPs after the

effective date of this final rule will be

able to use their SIP budget(s) within 45

days of submission or sooner if EPA

finds them adequate. Areas that submit

SIPs prior to the effective date of this

final rule can use those SIPs according

to the requirements of § 51.448(a)(2)/

§ 93.128(a)(2) as amended on November

14, 1995 (60 FR 57179). According to

these sections, areas can use submitted

SIP budgets beginning 90 days after

submission unless EPA finds them

inadequate; areas can use them earlier if

EPA declares them adequate.

EPA’s 90-day review period that is

described in § 51.448(a)(2)/§ 93.128(a)(2)

of the previous conformity rule may

have used different standards for

adequacy than are being outlined in this

final rule, because under the previous

rule the build/no-build test applied in

addition to the submitted budget. SIPs

that EPA believed adequate under that

rule may not be adequate if they are the

sole test of conformity. As a result, EPA

may use the adequacy criteria of this

final rule to re-examine SIPs that were

submitted before this final rule and have

not yet been approved. EPA intends to

complete this re-examination within 45

days after the effective date of this final

rule. During this time, areas will

continue using their SIPs that have been

submitted for more than 90 days; EPA’s

possible re-examination will not delay

or in any way interfere with areas

determining conformity unless EPA

finds the SIP inadequate.

B. Rationale and Response to Comments

Most commenters agreed that the

emission reduction tests should not be

required once a SIP is submitted. The

majority of commenters agreed that

compared to the budget test, the value

of the build/no-build test is limited.

Commenters believed that the proposed

flexibility would streamline conformity

and use state and local resources more

efficiently. Most commenters also

supported the proposal’s reduction of

the adequacy review period for a

submitted SIP from 90 to 45 days.

However, some commenters were

concerned that submitted budgets may

not be able to fully satisfy the purpose

of the emission reduction tests, which is

to ensure that annual emissions will be

reduced and/or that violations will not

be created or worsened (see Clean Air

Act sections 176(c)(3)(A)(iii) and

(c)(1)(B)). Specifically, some

commenters stated that the proposed

EPA review period would not be

sufficient to ensure the adequacy of

submitted budgets because the proposal

did not establish any objective criteria

for adequacy in the regulatory language,

or provide an opportunity for public

comment on EPA’s adequacy finding.

Some argued that the absence of

adequacy criteria for submitted budgets

could lead to the submission of inflated

budgets (not based on credible,

quantifiable attainment demonstrations)

for the convenience of determining

conformity. Commenters felt that

although these SIPs would ultimately

not prove acceptable, they could allow

projects to proceed during EPA’s

rulemaking to disapprove the SIP. This

could also lead to delays in attainment.

Another commenter was concerned that

the lack of objective criteria for

adequacy in the rule would make EPA

more vulnerable to political pressure to

approve inadequate budgets.

EPA agrees that if submitted budgets

are to replace the build/no-build test as

the primary measure of conformity, the

criteria by which EPA will judge their

adequacy must be clearly articulated in

the rule. EPA has done so in this final

action, and these criteria are those

described in the preamble to the

proposal. In addition, submitted SIPs

must already meet these criteria in order

for EPA to ultimately approve them.

Since the criteria included in this final

rule are the same as those described in

the proposal and thus subjected to

public comment, EPA does not believe

a reproposal is necessary prior to adding

the criteria to the regulatory language.

EPA also agrees that the public should

be given the opportunity to comment on

the adequacy of a submitted SIP. Some

commenters suggested requiring public

notice of submitted budgets and a 60-

day period during which the public

could file objections and present

arguments to EPA for its consideration

in its adequacy review. However,

because the state already holds a public

hearing on the draft SIP before

submitting it to EPA, EPA believes the

public has sufficient opportunity to

comment at the state level on the

adequacy of the budgets contained in

the SIP. EPA believes the rule now

addresses commenters’ concerns by

requiring EPA to review and consider

the compilation of public comment that

the state is already required to include

with any SIP submission. EPA will

document its consideration of such

comments in the letter to the state

indicating the adequacy of the

submitted budget(s).

Commenters also expressed concern

that EPA is not even obligated to

determine adequacy, since a submitted

budget can be used even if EPA has not

determined adequacy within the 45-day

review period. However, EPA is

committed to helping ensure that

conformity and future transportation

investment decisions are made using the

best possible SIPs, and EPA intends to

review all submitted SIPs within the 45-

day period.

Some commenters stated that EPA

may not establish a motor vehicle

emissions budget as a legally

enforceable obligation without

following the notice and comment

procedures of the Administrative
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43783

Procedure Act (APA). EPA believes that

it is appropriate not to provide notice

and comment for adequacy

determinations for submitted SIPs, since

these determinations are only

administrative reviews and not

substantive rules. When EPA reviews a

SIP for completeness, EPA does not

perform a notice-and-comment

rulemaking. EPA believes that

determining adequacy is more similar to

completeness review than a SIP

approval action, in that adequacy

determinations are merely

administrative applications of

established criteria to emissions

budgets. For these reasons, EPA is not

requiring notice and comment for its 45-

day adequacy review period. However,

EPA believes the commenters’ concerns

relating to public review under the APA

are addressed because EPA has

established the criteria for determining

adequacy through this final rule, which

has gone through APA notice and

comment procedures. In addition, EPA

is ensuring that public comment on

adequacy of individual budgets is

considered through review of comments

submitted to the state.

In addition to specific criteria for

adequacy, some commenters wanted to

limit the grandfathering of new projects

found to conform on the basis of a

submitted SIP’s budget. A

‘‘grandfathered’’ project can proceed

without further conformity

determinations (see § 93.102(c) for more

details). Transportation projects are

currently grandfathered after a National

Environmental Policy Act (NEPA)

document is approved and a projectlevel conformity determination is made.

In order for a project-level conformity

determination to occur, a conforming

plan and TIP must be in place at the

time of the determination.

Under the commenters’ scenario,

projects would only be grandfathered

when a project agreement authorizing

federal funds pursuant to 23 USC 110 or

49 USC 5309 has been executed. This

would grandfather projects later in the

transportation planning process than is

currently the case. Changing the

grandfathering in this manner would

make it more likely that local and state

planners could halt a project(s) if the

SIP is ultimately disapproved. The

commenters were concerned that a

submitted SIP’s budget may not contain

the necessary emission reductions for

demonstrating conformity in the future.

If EPA declared a budget adequate

during the 45-day review period but

later disapproved it, commenters were

concerned that an area may have

difficulty demonstrating conformity in

the future if all the projects planned

according to that budget are

grandfathered.

EPA believes that current

grandfathering requirements are

appropriate and should not be changed.

EPA has always believed that there

should only be one point in the

transportation planning process at

which a project-level conformity

determination is necessary. This

maintains stability and efficiency in the

transportation planning process.

Completion of the NEPA process is

the step EPA has selected historically

for grandfathering transportation

projects for several reasons. Making a

determination under NEPA is clearly an

action to support or approve an activity,

and the Clean Air Act does not allow a

federal agency to take such an action

without a conformity determination. In

addition, an air quality analysis is

already required by NEPA. To require

this analysis again at a later date may

create redundancies in the

transportation process and cause state

and local resources to be used less

efficiently.

EPA is partially addressing these

stakeholder concerns by maintaining

adverse conformity consequences in the

case of SIP disapproval without a

protective finding. As described in

section XI. of this preamble, today’s

final rule does not allow any new

projects to be added to the plan or TIP

beginning 120 days after a SIP is

disapproved without a protective

finding. In cases of a SIP disapproval

without a protective finding, areas

would only be able to advance projects

in the first three years of the currently

conforming plan and TIP. Therefore,

although EPA is not changing the

grandfathering of projects after a SIP is

submitted, there are real consequences

if a submitted SIP is ultimately found to

have emissions budgets that will not

result in reasonable further progress or

attainment. In addition, EPA believes

that with the adequacy requirements

added to the rule and the review of

submitted public comments, it is less

likely that budgets which EPA finds

adequate will ultimately be

disapproved.

III. Other Comments on Conformity

Tests

A. Implementation of Budget Test:

Submitted vs. Approved Budgets

Some commenters stated that EPA

should allow submitted SIP budgets to

override those in approved SIPs for

years directly addressed by the

approved SIP. These commenters

believed that newly submitted SIPs

often provide a more realistic picture of

the future than approved SIPs. Some

believed that, unlike approved SIPs,

newly submitted SIPs are more accurate

because they are based on an area’s

latest planning assumptions.

Although EPA acknowledges that

using updated budgets may be

preferable, EPA does not believe that it

is legal to allow a submitted SIP to

supersede an approved SIP for years

addressed by the approved SIP. As

stated in the proposal, Clean Air Act

section 176(c) specifically requires

conformity to be demonstrated to

approved SIPs. SIP revisions that EPA

has approved under Clean Air Act

section 110 are enforceable and cannot

be relieved by a submission, even if that

submission utilizes better data.

Approved SIP budgets have also been

subject to full technical review and

public comment and should not be

replaced by budgets that have not yet

been fully analyzed and reviewed. Some

commenters suggested that EPA should

institute another adequacy review

process (similar to that being finalized

today for submitted SIPs) which could

ensure that submitted SIPs are

consistent with attainment or

maintenance. However, this type of

process does not resolve the legal

prohibition on overriding approved

SIPs, and it would not be possible to

determine whether submitted SIPs are

consistent with attainment or

maintenance without EPA’s full public

review and approval process. Although

submitted SIPs cannot override

approved SIPs for years addressed by

the approved SIP, EPA did clarify in the

proposal and this final rule that

submitted SIPs can be used for years

later than those addressed by an

approved SIP.

Others suggested that, if EPA could

not allow submitted SIPs to override

approved SIPs, then EPA should require

conformity determinations to be done

using the same models and inputs that

were used in the approved SIP.

However, Clean Air Act section

176(c)(1)(B)(iii) requires that conformity

determinations ‘‘be based on the most

recent estimates of emissions, and such

estimates shall be determined from the

most recent population, employment,

travel, and congestion estimates.’’ As

stated in the preamble to the 1993

conformity rule (58 FR 62210), it is

expected that over time conformity

determinations will deviate from the

SIP’s assumptions regarding VMT

growth, demographics, trip generation,

etc. Conformity is intended to ensure

that a SIP’s emission targets are

achieved given the most recent planning

assumptions. If conformity cannot be

demonstrated using the most recent
43784 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

planning assumptions, either the SIP or

the transportation plan and TIP must be

adjusted.

Even though an approved SIP can be

changed if another SIP is submitted and

approved by EPA, some commenters

believed that EPA’s review and approval

of submitted SIPs would not occur in a

timely manner. The commenters urged

EPA to conduct expedited review and

approval of submitted SIPs (e.g., 6- to

12-month timeframe), especially those

that are revisions of the currently

approved SIP.

EPA recognizes these stakeholder

concerns and has already made

expedited approval processes, such as

parallel processing, available to states.

In parallel processing, states can

develop a draft SIP revision with close

EPA involvement. If all approvability

issues are resolved prior to submitting

the SIP to EPA, the state and EPA then

request public comment on the SIP at

the same time. If no adverse comment

is received, EPA then finalizes approval

as soon as possible after formal state

adoption and submittal, as long as no

substantive changes have occurred and

the package is still approvable. Parallel

processing is encouraged when SIP

revisions are straightforward, especially

when assumptions are updated and

new, significant control measures are

unnecessary. In addition to parallel

processing, EPA can use direct final

rulemaking to approve SIPs more

quickly in cases where EPA does not

expect adverse comment.

B. VMT Comparison as Substitute for

Budget Test

A few commenters recommended that

areas be given the option to use a VMT

comparison test instead of the budget

test, especially if data sets and modeling

used in the SIP are different than those

used in the plan and TIP. These

commenters argued that the present

budget test’s analytical inconsistencies

could be eliminated if areas were

allowed to replace the budget test with

a comparison of the projected vehicle

travel activity in the plan/TIP and that

assumed in the SIP. If the projected

VMT in the plan/TIP is consistent with

that in the SIP, the commenters argued

that Clean Air Act conformity

requirements would be met.

In order to meet the ‘‘VMT test,’’

commenters said that areas would have

to demonstrate that: a) vehicle trips,

VMT, and number of vehicles projected

in the proposed plan/TIP have not

exceeded these projections in the SIP;

and, b) the transportation system in the

proposed plan and TIP, and vehicle

speed distributions on that system, are

found through the consultation process

to be in reasonable agreement with the

system and speed distributions assumed

in the SIP. Commenters argued that this

idea is supported by Clean Air Act

section 176(c)(2)(A) which says that

‘‘emissions expected from the

implementation of plans and programs

are consistent with estimates of

emissions from motor vehicles and

necessary emissions reductions

contained in the applicable

implementation plan * * *’’ If an

MPO’s ‘‘most recent population,

employment, travel and congestion

estimates’’ (section 176(c)(1)) do not

exceed estimates of these parameters in

the SIP, the commenters believe that the

transportation community has fulfilled

its Clean Air Act requirements.

EPA believes that this is not the

correct legal interpretation of Clean Air

Act section 176(c)(2)(A), and

consequently, a VMT-based test is not a

viable substitute for the budget test. As

cited by the commenters, section

176(c)(2)(A) emphasizes that the

projected emissions from the plan and

TIP must be consistent with emissions

targets in the SIP. Emissions estimates

depend on numerous factors other than

VMT, such as travel speed, fuels,

inspection and maintenance (I/M), or

other technological factors, and thus

emissions could decrease even where

VMT increases or vice-versa. Therefore,

a VMT-based test could possibly make

it more difficult for some areas to

demonstrate conformity. For example,

an area with high VMT growth could

have difficulty passing a VMT-based

test, even though it might have a cleaner

fleet of vehicles resulting from electric

vehicles or a successful I/M program.

For all of these reasons, EPA is not

offering a VMT-based test in this final

rule.

IV. Conformity Tests for Areas That Are

Not Required to Submit SIPs

A. Description of Final Rule

Today’s action finalizes many of the

options that were proposed for

demonstrating conformity in areas that

are not required to submit control

strategy SIPs. The July 9, 1996 proposal

outlined three options for determining

conformity in these types of areas: (1)

create a budget through the SIP process

and use the budget test; (2) create a

default budget based on clean data in

areas that have achieved the standard

but have not submitted a maintenance

plan; or (3) use either the build/no-build

or ‘‘no-greater-than-1990’’ emission

reduction test. Today’s final rule keeps

the first and third proposed options,

while limiting the second option.

Areas that are not required to submit

control strategy SIPs include: marginal

and below ozone nonattainment areas,

not classified carbon monoxide (CO)

nonattainment areas, and moderate CO

nonattainment areas with a design value

of 12.7 ppm or less. In addition, some

moderate and above ozone

nonattainment areas that are meeting

the NAAQS are not required to submit

control strategy SIPs. (See May 10, 1995,

memorandum from John S. Seitz,

Director of the Office of Air Quality

Planning and Standards, to Regional Air

Division Directors, entitled ‘‘Reasonable

Further Progress, Attainment

Demonstrations, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard’’ for more

information about this small number of

ozone areas.)

Under the November 1993

transportation conformity rule, all areas

that are not required to submit control

strategy SIPs had two options for

demonstrating conformity. They could

choose between satisfying both emission

reduction tests (i.e., the build/no-build

and less-than-1990 tests) or submitting a

SIP and using the budget test. Areas that

decided to choose the latter option,

under the former conformity rule, were

required to perform the build/no-build

and less-than-1990 tests until the

submitted SIP was approved.

According to this final rule, all areas

that are not required to submit control

strategy SIPs can demonstrate

conformity by using either the build/nobuild test or no-greater-than-1990 test

(i.e., emissions must be equal to or less

than 1990 emissions); or, by submitting

a SIP through the regular SIP process

and using the budget test 45 days after

submittal, provided EPA has not found

the submitted SIP inadequate. The SIP

budget could be based on a modeled

attainment demonstration or, for areas

with clean data (defined in the

conformity rule as complete, qualityassured monitoring data demonstrating

attainment in accordance with 40 CFR

part 58), the SIP budget could be based

on the motor vehicle emissions in the

most recent year of clean data.

In addition to these options, moderate

and above ozone nonattainment areas

which EPA declares through rulemaking

to be ‘‘clean data areas’’ under the May

10, 1995 policy could request that a

budget based on the level of motor

vehicle emissions in the most recent

year of clean data be established

through that EPA rulemaking process.

See the May 10, 1995 memorandum

cited above for more information about

these types of areas.
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43785

B. Discussion of Comments and

Rationale

1. Default Budgets for Clean Data Areas

Most commenters supported the

proposed options for demonstrating

conformity in areas that are not required

to submit control strategy SIPs.

However, some questioned the

enforceability of a ‘‘default’’ budget for

clean data areas because such a budget

would be created through interagency

consultation instead of the SIP process.

Another commenter argued that state air

quality agencies should not be allowed

to create default budgets without EPA

approval and public comment. The

commenter believed that this would be

the equivalent of adopting an element of

the SIP, and it should be subject to the

conformity rule’s public participation

requirements and approval by EPA.

After further consideration, EPA

agrees that budgets must be established

through rulemaking; an area cannot

adopt a default budget without EPA

review and public comment. As a result,

if clean data areas choose to create a

budget, the SIP process must be used

(through which they could establish a

budget based on clean data); or, if they

are subject to the May 10, 1995 memo,

they could establish a budget through

the EPA rulemaking process described

in the memo. Of course, clean data areas

could also choose to use the emission

reduction test flexibility already

described above. Because both the SIP

and rulemaking processes provide for

EPA review and an opportunity for

public comment, EPA believes that the

commenters’ concerns are addressed in

the clean data option of this final rule.

EPA does not believe that areas

choosing the rulemaking option will

have any additional administrative

burden in submitting clean data budgets

for EPA review. Furthermore, since

public comment is already a part of the

rulemaking process, additional time will

not be needed for gathering public

input.

EPA recognizes there are clean data

areas for which EPA has already

completed rulemaking under the May

10, 1995, memorandum. If these areas

are not subject to a control strategy SIP,

they have the choice of using either the

build/no-build or no-greater-than-1990

test, or the budget test if they decide to

create one through the SIP process.

Again, if such areas choose to submit a

SIP budget, they have the option of

basing the budget on a demonstration of

clean data (rather than modeling) and

the budget could be the motor vehicle

emissions in the most recent year of

clean data.

One commenter was concerned that,

under the proposal, clean data areas

would not have an incentive to submit

maintenance plans for redesignation.

EPA acknowledges the commenter’s

concern and believes that limiting the

default budget option in today’s final

rule addresses this concern. However,

EPA does believe that other significant

incentives already exist for areas with

clean data to submit maintenance plans.

Another commenter argued that the

July 9, 1996, proposal was flawed

because it would allow areas to adopt de

facto budgets based on clean years even

if subsequent years have NAAQS

violations (thus demonstrating that

budgets derived from clean data years

are not adequate to maintain the

standard). EPA believes that the final

rule addresses this concern since any

SIP budget would be established only

through the rulemaking or SIP process.

If an approved emissions budget is

based on clean data and violations

occur, EPA can issue a SIP call or, if a

SIP has not yet been approved, EPA can

declare the submitted budget inadequate

during adequacy review. EPA also has

the ability to disapprove a submitted

SIP based on clean data if violations

occur prior to approval.

2. Maintenance Areas

A few commenters believed that the

proposed options for areas that are not

required to submit control strategy SIPs

should also be available to these areas

during the maintenance period.

Since maintenance areas have already

submitted SIP budgets and EPA has

approved those budgets, maintenance

areas must use the motor vehicle

emissions budget(s) in their

maintenance plans to demonstrate

conformity unless a subsequent budget

demonstrating maintenance is

approved. As discussed in section III. of

this preamble, ‘‘Other Comments on

Conformity Tests,’’ Clean Air Act

section 176(c) specifically requires

conformity findings to be based on

approved SIPs. Maintenance plans that

EPA has approved under Clean Air Act

section 110 are enforceable and their

budgets must be used for conformity.

3. Emission Reduction Test Flexibility

in PM–10 and NO2 Nonattainment

Areas

One commenter requested that EPA

remove the build/no-build test as an

option for demonstrating conformity in

PM–10 (particles with an aerodynamic

diameter of less than or equal to a

nominal 10 micrometers) and NO2

(nitrogen dioxide) nonattainment areas

that have not submitted control strategy

SIPs or maintenance plans. Section

93.119(c) of the proposal, like the

November 1993 final transportation

conformity rule, offered PM–10 and NO2

nonattainment areas the option to use

either the build/no-build test or nogreater-than-1990 test to determine

conformity, provided they have not

submitted a control strategy SIP or

maintenance plan. The commenter

believed that the build/no-build test

will not ensure that the frequency and

severity of existing violations will not

be increased, as required by Clean Air

Act section 176(c)(1). Furthermore,

commenters did not believe that the

same logic that was used in the

November 1993 final rule could be used

to provide the build/no-build test option

in ozone and CO nonattainment areas

that are not required to submit control

strategy SIPs.

Since the flexibility for PM–10 and

NO2 nonattainment areas was finalized

in the November 24, 1993 conformity

rule, the deadline for commenting on

this provision has passed, and EPA is

not obligated to respond to this

comment. Nevertheless, EPA does

believe that it is appropriate to continue

to offer the build/no-build test as an

option in PM–10 and NO2

nonattainment areas. By ensuring that

motor vehicle emissions are less than

they would be if no new transportation

investments were made, the build/nobuild test does ensure that the frequency

and severity of violations are not

increased as a result of new

transportation investments. EPA

believes that this same rationale can be

used to justify the build/no-build test

option in ozone and CO areas that are

not required to submit control strategy

SIPs. In summary, EPA continues to

believe that where no SIP has been

submitted, the build/no-build test is

sufficient for areas to meet the

requirements of section 176(c)(1).

V. Rural Nonattainment and

Maintenance Areas

A. Description of the Final Rule

In today’s action, EPA finalizes the

flexibility proposed in § 93.119, with

two minor clarifications. Rural

nonattainment and maintenance areas

with submitted or approved control

strategy SIPs or maintenance plans will

be allowed to choose among several

tests for demonstrating conformity for

years after the time period addressed by

the SIP: (1) the budget test; (2) the

emissions reduction tests (‘‘build/nobuild test’’ and/or one of the 1990 tests,

depending on what is required of the

area’s classification); or (3) air quality

modeling.
43786 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

In the proposal, EPA’s third option

was ‘‘air quality dispersion modeling,’’

which was more specific than intended.

The final rule’s language has been

changed to allow an area to use the air

quality modeling technique it used in its

SIP attainment or maintenance

demonstration, even if that technique is

not dispersion modeling. For example,

some SIP attainment demonstrations

(most commonly in PM–10 areas) are

developed using rollback/rollforward

techniques based on emission

inventories, and/or chemical mass

balance modeling, pursuant to EPA

guidance. Where the SIP demonstration

correctly used one of these techniques,

the conformity determination can use

the same technique. EPA will reject SIP

budgets during the 45-day review period

if such non-dispersion modeling was

used inappropriately.

EPA also clarifies in the final rule that

areas electing to use the emissions

reduction tests to demonstrate

conformity for the outyears must

perform these tests even if the area has

received a NOX waiver.

Generally, NOX waivers are findings

by the EPA Administrator under Clean

Air Act sections 182(b) or 182(f) that

additional reductions of NOX would not

contribute to attainment of the ozone

standard by the statutory deadline.

Areas have historically applied for NOX

waivers to eliminate the NOX emissions

reduction requirement.

When EPA proposed to allow rural

ozone areas with attainment

demonstrations or maintenance plans to

have the option of relying on the NOX

emissions reduction tests for the years

not addressed by these SIPs, EPA did

not intend to allow these areas the

option of performing no NOX test at all.

This would be the result, however, if

such areas could avoid meeting the

substitute tests by receiving NOX

waivers. In the November 14, 1995,

conformity amendments (60 FR 57183),

EPA stated that areas with NOX budgets

have to conform to these budgets even

if they were granted a NOX waiver. EPA

emphasized that ‘‘a NOX waiver’s

demonstration that additional NOX

reductions would not contribute to

attainment does not necessarily mean

that NOX increases would not affect an

area’s ability to attain and maintain the

standard. The purpose of a NOX budget

is to prevent NOX emissions from

reaching levels that would threaten

attainment or maintenance of the ozone

standard.’’

EPA is allowing rural ozone areas to

substitute the emissions reduction tests

for the budget test as a means of

demonstrating that these areas are

meeting the requirements of Clean Air

Act section 176(c)(1) that plans, TIPs,

and projects not cause or contribute to

any new violation, worsen existing

violations, or delay attainment of the

NAAQS. Therefore, for the same reasons

a NOX waiver cannot exempt an area

from the budget test, a NOX waiver

cannot exempt an area from the NOX

emission reduction tests when these

tests are selected as a substitute for

existing NOX budgets. EPA believes that

the clarification in the final rule is

consistent with EPA’s original

intentions and stakeholders’

understanding of the proposal, and

therefore believes that a reproposal is

not necessary to incorporate this minor

change.

The choice of a test in rural areas will

be determined through the interagency

consultation process and will reflect the

consensus of the state and local air and

transportation agencies and the project

sponsor.

B. Rationale and Response to Comments

Most commenters supported the

proposal for increased flexibility in

rural areas. EPA changed the language

for the air quality modeling option

because EPA agrees with the

stakeholder who pointed out that

modeling techniques deemed adequate

in certain areas for SIP attainment

demonstrations ought to be adequate in

those areas for conformity

determinations as well. EPA originally

referred to air quality dispersion

modeling because it is the technique

generally required for SIP

demonstrations. Because some PM–10

areas appropriately use air quality

modeling that is not dispersion

modeling, EPA has broadened its

language to allow use of these other

techniques.

One stakeholder commented that the

proposal is illegal, because the Clean

Air Act does not provide for an

exemption from the budget test for rural

areas. However, as explained in the

proposal’s preamble, EPA believes that

providing some flexibility for the years

not addressed by the SIP is consistent

with the Clean Air Act. The Clean Air

Act requirement for consistency with

the SIP’s emissions reduction goals can

be construed to apply only for the years

that an individual SIP revision

addresses, where there is another

appropriate method of demonstrating

conformity as defined in Clean Air Act

section 176(c)(1).

In general, EPA believes that a SIP

budget, even if it is not yet approved by

EPA, is a better measure of conformity

than the build/no-build test. For this

reason, EPA requires most areas to

continue demonstrating conformity to

the SIP emissions budgets even after the

timeframe of the SIP (see section VI.,

‘‘Mismatch in SIP/Transportation Plan

Timeframe,’’ for more explanation).

However, EPA believes it does have the

flexibility to allow conformity to be

demonstrated using some test other than

the SIP budget for years not addressed

by the SIP, if that test is more

appropriate.

EPA believes that the reasons why the

build/no-build test is less desirable than

the budget test for most areas do not

apply in the special circumstances of

rural areas. The main critique of the

build/no-build test is that the difference

in emissions that it predicts is often

small enough to be within the range of

error of the models themselves. EPA

believes this will not be as problematic

in rural areas. Since there are fewer

transportation projects and the

transportation network is less complex

in rural areas, the build/no-build test is

more reliable. The test is better able to

capture the effects of new projects in

such areas. Therefore, EPA believes it is

reasonable to allow the use of the build/

no-build test as an option to

demonstrate conformity for the time

period of the transportation plan not

covered by the SIP in rural areas.

Several commenters provided ideas

for additional flexibilities in rural areas.

One stakeholder suggested that areas

should be able to use the budget from

any year of clean data when employing

the budget test. This suggestion is not

being implemented today because SIP

budgets must be established through

notice-and-comment rulemaking. As

stated in section IV. of this preamble,

EPA believes that areas cannot adopt a

default budget based on clean data

without EPA review and public

comment. See this section for more

details on the options available for areas

with clean data.

Another commenter suggested that

areas be allowed to use alternatives to

regional modeling, such as

‘‘subregional’’ modeling or ‘‘mesoscale

analysis.’’ EPA is not including that

suggestion in this section because

specific modeling requirements do not

apply to rural areas; they only apply to

urbanized areas with populations

greater than 200,000. As a result, rural

areas already have flexibility in

modeling, provided that their methods

consider all regionally significant

projects in the nonattainment or

maintenance area.

Several stakeholders suggested that

the rule explicitly require state and local

air agency concurrence for the selection

of conformity tests, rather than just

consultation. EPA does intend that
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43787

agencies reach agreement on which test

to use to demonstrate conformity in a

rural area. However, EPA is retaining

the language of the proposal, because of

concerns that requiring concurrence

would imply that the existing conflict

resolution process (by which state

agencies can elevate disputes to the

governor) cannot be used. EPA believes

that the regulatory language adequately

indicates that consensus should be

reached or disputes raised through the

conflict resolution process.

VI. Mismatch in SIP/Transportation

Plan Timeframe

A. Description of Final Rule

This final rule retains the November

1993 conformity rule’s requirements

(described in the proposal as option 1).

Conformity must continue to be

demonstrated over a 20-year timeframe,

and SIP budgets continue to apply for

conformity purposes for all future years

until superseded by other SIP revisions

(except as provided in rural areas, as

described above).

Although EPA is not changing the

November 1993 conformity rule

requirements with respect to the

mismatch issue, EPA’s existing SIP

policy already does provide for some of

the flexibility proposed in option 3,

which would have allowed a default

emissions budget to be established for

years outside the maintenance plan’s

timeframe. Because EPA is aware of the

challenges posed by the differing

timeframes of the SIP and the

transportation plan, EPA does allow

SIPs to establish motor vehicle

emissions budgets for conformity

purposes for years outside the

timeframe that the SIP normally

addresses. For example, some areas are

developing maintenance plans that

include motor vehicle emissions

budgets for conformity purposes for the

years 2010 and 2015, even though the

initial demonstration of maintenance is

only required to address ten years.

EPA’s approval of these budgets is not

an approval of a full 20-year

maintenance demonstration; these

budgets are for conformity purposes

only and will be superseded when the

second ten-year maintenance plan is

submitted.

EPA will require areas to demonstrate

that motor vehicle emissions budgets for

years outside the timeframe of the

maintenance plan are consistent with

maintenance of air quality standards.

EPA will not permit areas to simply use

the motor vehicle emissions in the year

of redesignation as a budget without

considering growth in non-mobile

source emissions, which was a

possibility discussed in the proposal

under option 3. However, EPA believes

it has the flexibility to approve budgets

for years outside the usual maintenance

plan timeframe for conformity purposes

based on less rigorous demonstrations

than are required for the Clean Air Actmandated ten-year maintenance plan.

Whereas normally control measures

must be fully adopted in order for EPA

to approve the SIP, EPA would be

willing to approve conformity budgets

that were based in part on enforceable

commitments to adopt specific control

measures in the future. Because these

commitments would be included in the

approved SIP, they would be

enforceable by all parties, including the

public. In addition, EPA would consider

allowing the motor vehicle emissions

budgets in the last year of the ten-year

maintenance plan to be increased for

future years provided offsetting

emissions reductions are adopted or

committed to in the SIP.

The ability to establish motor vehicle

emissions budgets for conformity

purposes for years outside the normal

timeframe of the SIP is not specifically

discussed in this final rule’s regulatory

text because it is currently possible

under EPA’s existing SIP policy, and

therefore no regulatory changes are

needed.

B. Rationale and Discussion of

Comments

EPA is finalizing option 1 (i.e., not

changing conformity rule requirements

to address the mismatch in plan/SIP

timeframes) for two reasons. First, EPA

believes there are important benefits

associated with this option, as

commenters pointed out (discussed

below). Second, EPA believes there are

adequate flexibilities under the existing

conformity rule and EPA SIP policy that

will help areas address the challenges of

the timeframe mismatch in a manner

that is more supportive of air quality

goals and prudent planning than any of

the other options proposed. The other

options proposed included option 2,

which would have required emission

reduction tests (‘‘build/no-build test’’

and less-than-1990 test) for

demonstrating conformity in years not

addressed by SIPs; and option 3, which

would have allowed a default motor

vehicle emissions budget (such as the

motor vehicle emissions in the year of

redesignation) to be used for the years

outside the maintenance plan’s

timeframe.

Many commenters supported option 1

because they believe that maintaining

the SIP’s emission targets for the

timeframe of the transportation plan is

a central purpose of conformity and

perhaps its most important requirement.

Commenters stated that because the

obligation to meet air quality standards

persists indefinitely, the obligation to

meet the motor vehicle emissions

budget should not terminate after the

attainment date or the last year of the

maintenance plan. According to some

commenters, it is appropriate to analyze

the effects of transportation investments

over a 20-year timeframe, because it

may in fact take decades for these effects

to be fully realized. They stated that it

is better to use a long timeframe and

make the right choices at the outset than

to pursue a path for several years and

then try to quickly overcome the

adverse consequences of that path. One

commenter pointed out that

demonstrating conformity to the SIP’s

budget over the 20 years of the

transportation plan is the best way to

prepare for the fact that the benefits of

fleet turnover do decline over time.

Some commenters preferred option 1

to the other options proposed because

option 1 requires emissions related to

growth to be specifically addressed and

tradeoffs to be examined. According to

these commenters, the other options

would not accomplish this, and the

conformity determinations that would

result from these other options would

not have as much integrity because they

would not be based on a performance

target with real meaning (i.e., a SIP

budget that supports reasonable further

progress, attainment, or maintenance).

Many other commenters supported

option 3, which would have allowed a

default motor vehicle emissions budget

for the years after the last year of the

maintenance plan. These commenters

believe this option would be less

burdensome than the other options.

They also believe that SIP budgets may

be unrealistic because they are not

established with a 20-year horizon in

mind, and therefore it is not necessarily

appropriate to require areas to conform

to them indefinitely. Option 3 was

broadly discussed in the preamble to the

proposal and included possibilities that

ranged from allowing motor vehicle

emissions to grow to levels in the year

of redesignation without consideration

of growth in non-mobile emissions, to

allowing budgets to increase only if it is

demonstrated that the standards will be

maintained when growth in mobile,

area, and stationary sources is

considered. Several commenters

supported option 3 only if the motor

vehicle emissions budgets were based

on a demonstration of maintenance that

considered all emissions sources.

The approach that EPA is finalizing

combines the benefits of option 1 with

some of the flexibility contemplated by
43788 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

option 3. EPA agrees with the

commenters’ reasons for supporting

option 1. EPA is sympathetic to the

concerns that prompted commenters to

advocate option 3, but EPA believes that

the flexibility allowed under existing

SIP policy to establish reasonable

budgets outside the timeframe of the SIP

is an effective means of addressing those

concerns without compromising the

benefits of option 1. EPA is committed

to assisting areas with the challenges

that arise when addressing long-term

emissions impacts. EPA also encourages

a collaborative process between local,

state, and federal agencies in order to

facilitate acceptable solutions to these

challenges under existing SIP policy.

A few commenters preferred option 2

(emission reduction tests) because in

their specific areas they could pass the

build/no-build test but not the NOX

budget test. However, some commenters

opposed option 2 because the emission

reduction tests have significant

limitations and would not ensure that

regional mobile source emissions

remain consistent with attainment or

maintenance requirements. One

commenter stated that the build/nobuild test is an imprecise analytical

approach that bears no direct

relationship to the attainment

demonstration.

EPA agrees that these arguments

against option 2 are compelling.

Allowing areas to use emission

reduction tests instead of SIP budgets

would be inconsistent with EPA’s action

described in section II. to eliminate the

emission reduction tests where SIP

budgets have been established.

Overwhelming support has been

expressed for this elimination of the

emission reduction tests in such cases,

and this has convinced EPA that option

2 is not a suitable solution for

addressing the mismatch of

transportation plan and SIP timeframes.

EPA is pursuing the approach proposed

in option 2 only in the limited case of

rural nonattainment and maintenance

areas, for reasons specific to such areas

as explained in section V.

C. Response to Specific Comments

Several commenters stated that EPA

should allow areas to use any of the

three proposed options. A commenter

suggested that the choice of options

would be decided by each area through

its own interagency consultation

process. As explained above, EPA

believes that the option being finalized

is the most appropriate. One commenter

supported option 1 provided areas have

more flexibility to account for future

programs that will affect emissions.

Currently, areas cannot assume future

programs unless they are adopted or

included in the SIP. EPA believes that

the approach being finalized today will

allow the flexibility the commenter is

seeking, because it allows budgets

established for conformity purposes to

be based on enforceable commitments

in the SIP rather than requiring fully

adopted control measures, as needed for

approval as part of a control strategy

SIP.

One commenter suggested that the

plan should be qualitatively analyzed

for the years beyond the timeframe of

the SIP. EPA believes this would not be

consistent with the Clean Air Act’s

requirement for the use of emissions

estimates for determining conformity. In

addition, EPA believes that both the air

quality and transportation planning

processes benefit from long-term

quantitative analyses of transportation

plans. EPA believes that areas have

sufficient flexibility in analysis methods

to develop a quantitative approach that

is both reasonable and useful.

Some commenters suggested that

conformity should not be required at all

in years beyond the timeframe of the

SIP. Other commenters suggested that

conformity should not be required until

there are tools adequate to the task. EPA

believes this is not consistent with the

Clean Air Act’s requirement to

demonstrate that the transportation plan

will not cause or worsen violations of

air quality standards. Conformity of a

transportation plan cannot be

determined unless all years of the

transportation plan are considered. EPA

believes that adequate analytical tools

are currently available and are

continually being improved. All areas

have great freedom to improve their

own analysis techniques, which EPA

supports.

One commenter suggested that the

options proposed for rural

nonattainment and maintenance areas

be provided for all areas as a way of

addressing the mismatch in

transportation plan and SIP timeframes.

The options being provided to rural

areas include a choice among the SIP

emissions budget, the emission

reduction tests, or air quality modeling.

The emission reduction tests are not

being pursued for all areas as described

in the discussion of option 2, above. The

reasons for using the emission reduction

tests in rural areas, as described in

section V., are only applicable in rural

areas and would not provide a basis to

use these tests in other areas. However,

option 1 does give areas the opportunity

to use either the SIP emissions budget

or establish new budgets that are

supported by air quality modeling.

Some commenters stated that

demonstrating consistency with the

motor vehicle emissions budget

established for the attainment year or

the last year of the maintenance plan is

not sufficient to demonstrate that an

activity will not cause or worsen air

quality violations. These commenters

argue that it must be demonstrated that

the motor vehicle emissions budget is

consistent with attainment or

maintenance when the most recent

projections about non-mobile source

emissions growth are also considered.

EPA does not believe that this is

required by the Clean Air Act. EPA

believes that if motor vehicle emissions

are less than or equal to the most recent

motor vehicle emissions budgets in the

SIP that was approved as meeting

attainment or maintenance

requirements, then it can be stated that

motor vehicles are not ‘‘causing or

contributing’’ to violations, as required

by the Clean Air Act. It is not the role

of the conformity requirements to

provide attainment or maintenance

plans, but merely to prevent adverse

impacts on such demonstrations.

However, EPA does recognize that

consistency with the motor vehicle

emissions budgets for the transportation

plan’s 20-year timeframe does not

guarantee attainment or maintenance

because of the possibility for growth in

non-mobile sources. This is one reason

why EPA is not finalizing a version of

option 3 that would allow motor vehicle

emissions to increase above approved

SIP budgets without considering

emissions from other sources.

VII. Non-Federal Projects

A. Description of Final Rule

As was proposed, the final rule allows

certain regionally significant nonfederal transportation projects to be

adopted or approved during a

transportation plan/TIP conformity

lapse, provided the project was

included in the regional emissions

analysis supporting the most recent

transportation plan and TIP conformity

determination. Non-federal projects are

projects which are funded or approved

by a recipient of federal funds

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

Federal Transit Laws (49 U.S.C. Chapter

53) but which do not rely at all on any

FHWA/FTA funding or approvals.

The final rule clarifies that only those

non-federal projects from the first three

years of the most recent conforming

plan and TIP (or supporting regional

emissions analysis) may proceed during

a conformity lapse. In the proposal, EPA

had simply stated that non-federal

projects in the most recent conforming
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43789

plan and TIP’s regional emissions

analysis could proceed when a lapse

occurs.

B. Rationale for Clarification and

Response to Comments

Most commenters supported the

proposal, and many said that it was

appropriate because the emissions

impacts from affected non-federal

projects have already been considered

and sufficient project reviews have

already occurred. However, some

commenters expressed concern that in

their understanding the proposal would

facilitate the exchanging of funds

between federal and non-federal

projects during a conformity lapse.

Some even implied that there may be

areas that would build large numbers of

non-federal projects by exchanging

funds, and thereby, avoid conformity

consequences for an indefinite amount

of time. There was concern that because

some TIPs cover more than three years,

sometimes even five or more years, a

substantial number of non-federal

projects could be built during a

conformity lapse. Some of these

commenters even believed that the

proposal would allow areas to advance

all non-federal projects in the 20-year

transportation planning horizon during

a conformity lapse, thus reducing or

removing the incentive to develop

transportation plans and TIPs that

actually do conform. EPA did not intend

this in the proposal, and as a result, EPA

believes that a regulatory clarification is

necessary in this final rule.

Although commenters suggested

possible safeguards to protect against

such abuses, including limiting the

number of non-federal projects that

could go forward during a lapse or

restricting the ability to exchange funds

between federal and non-federal

projects, EPA believes that the final

rule’s clarification addresses these

concerns.

EPA did not intend that a non-federal

project identified for any year in the 20-

year transportation planning horizon

could proceed at any time. This

interpretation would be inconsistent

with other regulatory requirements and

with the stated rationale for the

proposed non-federal project flexibility.

Under DOT’s metropolitan planning

requirements (23 CFR 450.332(c)),

projects identified for funding in the

first three years of the plan and TIP are

the only projects that can proceed under

any approved TIP. New TIPs are

required every two years, and projects

from the outyears of an approved TIP

cannot be moved forward without a TIP

amendment. Therefore, EPA believes

that allowing non-federal projects in the

outyears of the TIP and plan to advance

at any time for conformity purposes is

inconsistent with this general regulatory

context. In the proposal, EPA had

intended that only those projects

already scheduled to begin in the

timeframe of the first three years of the

TIP could proceed during a conformity

lapse.

There are several reasons why the

final rule’s clarification is consistent

with EPA’s original intentions and

rationale for providing areas flexibility

for non-federal projects. During the

development of the proposal,

stakeholders who suggested the

proposed non-federal project flexibility

argued that it was appropriate because

future plans and TIPs would have to

consider the emissions from non-federal

projects and offset them as necessary.

These projects would ultimately have to

be considered in the next TIP in the

metropolitan planning process. In

addition, as EPA pointed out in the

preamble to the proposal and as many

commenters argued, requiring nonfederal projects to have been included

in the most recent conforming plan and

TIP ensures that the emissions

consequences of the projects have been

considered.

Neither of these rationales would be

consistent with allowing a non-federal

project from the outyears to proceed at

any time. The emissions analysis for the

plan and TIP would no longer be valid

if the implementation dates of nonfederal projects were altered. Allowing

non-federal projects from the outyears to

be accelerated during a conformity lapse

so that a new conforming plan and TIP

could be substantially delayed would in

effect be allowing the non-federal

projects to escape the scrutiny of the

metropolitan planning process which

EPA had relied on in making the

proposal. The final rule’s clarification

ensures that the flexibility operates as

originally intended by EPA and

conformity stakeholders. EPA believes

this is fully consistent with the original

proposal and therefore does not require

any reproposal prior to proceeding with

final action.

C. Governor Approval

EPA requested comment on whether

the governor should be required to

approve each non-federal project that

would proceed during a conformity

lapse. EPA did not believe that it could

propose such a change because governor

approval is not explicitly required by

the Clean Air Act, and it was unclear

whether state and local officials should

have the authority to adopt or approve

non-federal projects during a lapse. Due

to the comments received, EPA has

decided not to require governor

approval in the final rule.

EPA received many comments on this

issue that strongly supported the

proposal to not require governor

approval of non-federal projects affected

by the final rule. Many reasons were

cited by commenters. Some said that

governor approval isn’t necessary since

the governor appoints the directors of

the state transportation and air agencies,

and in some cases, governors have even

appointed the MPO as his/her designee

for air quality planning. Others

emphasized that the conformity rule

already provides for involving the

governor, when necessary, through the

conflict resolution process. Many

argued that local non-federal projects

are usually time-sensitive and many

local governments fund these projects in

order to expeditiously move them

through the planning process. In this

case, requiring governor approval is

unnecessary and would impede rather

than facilitate the process of non-federal

project implementation. Finally, some

believed that it was not appropriate for

governors to have authority over

approving local non-federal projects.

EPA agrees generally with commenters

and believes that requiring governor

approval is not necessary. Therefore,

EPA is not requiring governor approval

of non-federal projects during a

conformity lapse.

D. Responses to Other Comments on

Non-Federal Projects

EPA received other comments on the

proposed non-federal project flexibility

which did not result in changes to the

proposal.

1. Comments Opposing Statutory

Interpretation

One commenter argued that any

exemption for non-federal projects

would violate the statutory requirement

that any such project only be approved

or funded if it either ‘‘comes from a

conforming plan and program,’’ or its

emissions when considered with those

of ‘‘the conforming transportation plans

and programs within the nonattainment

area’’ do not exceed the applicable

emissions budgets. The commenter

argued that the present tense of the

operative verbs in the statutory language

does not allow exemptions for projects

that come from a plan and program that

no longer conform. The commenter also

argued that this exemption cannot be

justified as a grandfathering mechanism

because it allegedly applies to projects

that have not yet satisfied applicable

federal requirements. Finally, the

commenter objected that the proposal

allows state DOTs to continue to build
43790 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

projects with state funds during periods

when the metropolitan transportation

plans fail to satisfy the Clean Air Act’s

requirements for emission reductions,

and therefore leads to a delay in

attainment.

EPA believes that it is appropriate to

allow non-federally funded projects that

have previously satisfied conformity

requirements to proceed during a

conformity lapse because the existence

of a conforming plan and TIP is not

necessary to facilitate the

implementation of such projects. As to

the commenter’s concern about

potential emissions increases, any

future plan and TIP will have to account

for and offset if necessary the emissions

of any non-federal projects that are

implemented during a conformity lapse.

EPA acknowledges that there is some

tension with the present tense statutory

language concerning the existence of a

conforming plan and TIP. However,

EPA believes that this is a proper case

of grandfathering projects that had been

previously found to satisfy the

applicable federal conformity

requirements. The only obligation

imposed by the conformity rule on nonfederal projects is to account for project

emissions in a conforming plan and TIP.

If this has been done, EPA believes that

it is appropriate to allow projects in the

timeframe of the first three years of the

plan and TIP to proceed towards

implementation, so as not to interfere

with the priorities of non-federal

entities funding such projects.

2. Changes in Implementation Date

Another commenter said that it was

unclear whether a non-federal project

could go forward during a lapse if the

project’s design concept and scope had

changed; or, if the project’s

implementation date had changed in a

manner that changed emissions in a

milestone or analysis year. Under the

proposal and this final rule, a nonfederal project cannot go forward during

a conformity lapse if its design concept

and scope has changed significantly. A

non-federal project also cannot go

forward if its implementation date

changes in a manner that changes the

emissions that the emissions analysis

supporting the most recent conforming

plan and TIP projected for a given

analysis year. In either case, a new air

quality analysis would be needed to

ensure that the project would still

conform, and it would be inappropriate

to allow such projects to proceed based

on the analysis in the most recent plan/

TIP. The final rule’s clarification should

reduce confusion on this point.

3. Comments on Original Conformity

Rule

One commenter objected to the

provisions of the original conformity

rule that do not require conformity

determinations for non-federally funded

projects. The commenter included

detailed statutory arguments alleging

that Clean Air Act section 176(c) on its

face requires conformity determinations

for all transportation projects, and the

commenter also included citations to

the legislative history supporting these

allegations. The commenter also argued

that non-federal project sponsors should

provide a public process prior to

determining that emissions from nonfederal projects are consistent with

applicable emissions budgets.

EPA’s proposal did not cover this

aspect of the conformity rule, which has

been final since 1993. EPA did not

intend to reopen the issue of whether

non-federal projects should undergo

conformity determinations when it

proposed to allow certain non-federal

projects to proceed during a lapse. As

EPA explained in the preamble to the

1993 conformity rule, Clean Air Act

section 176(c)(2)(C) clearly

distinguishes non-federal projects from

those projects required to conduct a

conformity determination, requiring

only that non-federal projects be

considered in a regional emissions

analysis prior to adoption or approval.

Non-federal projects are not covered in

the requirement to conduct a conformity

determination in section 176(c)(1),

which applies only to actions of federal

agencies and metropolitan planning

agencies. For these reasons, EPA is not

responding in full to comments

submitted on this issue. For more

explanation of EPA’s rationale for the

provisions of the original conformity

rule, see the preamble to the final rule

at 58 FR 62188, 62204 (Nov. 24, 1993).

Finally, since federal agencies do not

approve non-federal projects, such

approvals are not subject to the

requirements of the federal

Administrative Procedure Act. Nonfederal project sponsors would have to

comply with any applicable public

participation processes required under

state law.

VIII. Deadline for Use of Network

Models and Affected Areas

A. Description of Final Rule

Today’s action finalizes the proposal

to require serious CO and serious,

severe, and extreme ozone areas to use

network models for conformity

determinations by January 1, 1997. In

addition, as proposed, these network

modeling requirements are revised so

that they only apply to metropolitan

planning areas with an urbanized area

population over 200,000. EPA continues

to believe that network modeling

requirements are most important for

large urbanized areas, and therefore

believes that it is appropriate for the

conformity rule to focus its specific

modeling requirements on them. See

section IX.A. for a description of the

final rule’s requirements for network

models.

As stated in the proposal and required

under the original conformity rule,

whether or not an area is required to use

a network model, all areas must use the

consultation process to select regional

models and assumptions, as required by

§ 93.105(c).

B. Rationale and Discussion of

Comments

Most commenters supported the final

rule’s limiting of network modeling

requirements to serious and above areas

with an urbanized population over

200,000. Commenters agreed with EPA

that network modeling is not always

appropriate in rural or urban areas with

smaller populations, and therefore,

should not be required in these areas.

One commenter suggested that all

urban areas with a population greater

than 50,000 people should also be

required to use network models because

these models are simple and

inexpensive. However, the commenter

did not believe that the proposal would

seriously weaken the conformity

process, since most of these smaller

cities already use network models for

conformity analyses.

As previously stated, EPA believes

that network modeling requirements are

most important for large urbanized

areas. As a result, EPA is not changing

the proposed population threshold.

However, EPA also notes that

§ 93.122(c) of the conformity rule

requires areas that are already using

network models to continue using them,

even if they are not serious or above

areas or have a population less than

200,000. EPA and DOT will consider the

specific technical needs of smaller areas

when developing future modeling

guidance.

A couple of commenters supported

stratifying the network modeling

requirements by size of urban area. EPA

believes that the final rule in part

addresses this concern by only requiring

larger urbanized areas to adhere to the

network modeling requirements.

However, EPA does not want to create

a complicated stratification system that

would require multiple sets of modeling

requirements. Therefore, EPA did not
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43791

change the rule in response to this

comment.

As proposed, today’s action also

extends the deadline for implementing

the network modeling requirements

from January 1, 1995, to January 1, 1997.

A few commenters suggested that MPOs

that are not meeting the rule’s network

modeling requirements should be put

on a timetable for compliance. Other

commenters thought that extending the

deadline was unnecessary due to the

ease of implementing such a network

model, especially since the majority of

areas already have a network model in

place. They also felt that an extension

would seriously weaken the modeling

regulation. Some commenters stated

that the extension of the deadline is

obsolete, since the final rule would be

published after January 1, 1997.

EPA acknowledges that the January 1,

1997, deadline has already passed. The

original conformity rule required that

areas use network models in conformity

analyses by January 1, 1995, and when

the proposal was being developed, most

areas had achieved the rule’s network

modeling requirements by this deadline.

However, as discussed in the proposal,

a few areas had not yet complied with

the deadline, and EPA believed that an

extension until January 1, 1997, would

be adequate to address their difficulties.

EPA did consider extending the

deadline even further when it became

apparent that the final rule would not be

effective before January 1, 1997.

However, reproposal would have been

necessary to significantly extend the

proposed January 1, 1997, deadline, and

EPA believes it is likely that the few

areas in question will have adequate

network models developed before a

reproposal could be finalized.

For all of these reasons, EPA is

retaining the January 1, 1997, deadline.

EPA agrees with the commenters that

the majority of affected areas are already

using network models. EPA and DOT

are currently working with the two areas

that have not yet met the network

modeling requirements so that they will

overcome their unique circumstances

and meet the requirements in the future.

IX. Content of Network Modeling

Requirements in Serious and Above

Ozone and CO Areas

A. Description of Final Rule

In today’s final rule, EPA is

streamlining the conformity rule’s

modeling requirements and committing

to collaborate with DOT to develop

future modeling guidance. Specifically,

EPA is eliminating several modeling

criteria from regulatory text while

retaining those criteria that establish

minimum acceptable practice.

The proposal requested comment on

three options for addressing the

modeling criteria in the conformity rule.

Option 1 proposed to eliminate all of

the 11 required attributes of network

models in the original November 24,

1993, final transportation conformity

rule and address the attributes only in

guidance. Option 2 would have retained

all of the original modeling attributes.

Option 3 proposed to streamline the

original requirements for network

models and address the eliminated

attributes in guidance. Today’s action

finalizes option 3 with some minor

modifications.

The final rule includes six required

elements for network modeling in

serious and above ozone and CO areas

with an urbanized population over

200,000. These elements include the

five that were proposed as option 3

(with minor wording changes), as well

as the November 1993 conformity rule’s

requirement in § 51.452(b)(1)(iv)/

§ 93.130(b)(1)(iv) for reasonable

agreement between zone-to-zone travel

times used in trip distribution and the

travel times resulting from traffic

assignment.

Specifically, this final rule requires

network-based models to be validated

against observed counts (peak and offpeak, if possible) for a base year that is

not more than ten years prior to the date

of the conformity determination. Model

forecasts must be analyzed for

reasonableness and compared to

historical trends and other factors, and

the results must be documented. Land

use, population, employment, and other

network-based model assumptions must

be documented and based on the best

available information. Scenarios of land

development and use must be consistent

with the future transportation system

alternatives for which emissions are

being estimated. The distribution of

employment and residences for different

transportation options must be

reasonable.

A capacity-restrained traffic

assignment methodology must be used,

and emissions estimates must be based

on a methodology which differentiates

between peak and off-peak volumes and

speeds, and which uses speeds based on

final assigned volumes. Zone-to-zone

travel impedances used to distribute

trips between origin and destination

pairs must be in reasonable agreement

with the travel times that are estimated

from final assigned traffic volumes.

Where use of transit currently is

anticipated to be a significant factor in

satisfying transportation demand, these

times should also be used for modeling

mode splits. Finally, network-based

models must be reasonably sensitive to

changes in the time(s), cost(s), and other

factors affecting travel choices.

EPA believes that the streamlined

criteria and clarified rule language will

assist areas in implementing the rule’s

network modeling provisions. The final

rule does not create any new network

modeling requirements for large,

urbanized serious and above ozone and

CO areas.

As stated in the proposal, EPA and

DOT will develop modeling guidance in

the future to address some of the

modeling requirements that were

eliminated from the final rule and to

foster the exchange of information on

current and future modeling

improvements. As discussed later in

this section, EPA and DOT are

committed to an open stakeholder

process about modeling procedures that

will begin shortly after the rule becomes

effective.

B. Rationale and Discussion of

Comments: Selected Option

There were commenters who

supported each of the three proposed

options for the content of the network

modeling requirements. Some

supported option 1 because they

believed that eliminating all modeling

attributes would simplify the

conformity rule and create maximum

flexibility for areas. Other commenters

argued strongly for option 2, which

would have retained all 11 modeling

attributes from the original rule.

According to one commenter, removing

all of the modeling attributes from the

rule would have detrimental effects on

the entire conformity process. Finally,

many commenters from the

transportation and environmental

communities supported option 3, which

proposed to streamline the modeling

requirements without fully eliminating

them. These commenters believed that

having some baseline modeling criteria

in the rule ensures national consistency

of network models while streamlining

the rule to allow for flexibility at the

state and local levels.

As previously stated, this final rule

streamlines the original conformity

rule’s network modeling criteria by

eliminating some criteria and clarifying

the rule’s language. EPA is retaining

some modeling requirements in this

final rule because EPA agrees with

commenters that minimum modeling

standards are an important component

of the conformity process. Many

commenters believed that all or some of

the original modeling criteria should be

retained in the final rule, because

without them, modeling practice would
43792 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

become highly variable across the

country. They also thought that

eliminating all criteria would

undermine the integrity, reliability, and

credibility of the process for assessing

the expected impacts of transportation

investments on travel demand, travel

behavior, and estimates of future vehicle

miles traveled (VMT) and emissions.

Others believed that having modeling

criteria in the conformity rule has

spurred the funding and development of

state and local transportation model

improvements. Finally, some pointed

out that sound network models are

needed for other processes besides

conformity, such as SIP development,

and therefore should be retained.

Other commenters were concerned

that lawsuits would increase if all of the

modeling attributes were eliminated,

due to the inconsistency of

requirements across the country.

According to commenters, the outcomes

of these suits would be hard to predict

and money would be wasted in the

adversarial process.

EPA agrees with these comments and

believes that the final rule addresses

them. EPA also agrees that nationally

consistent and enforceable minimum

standards are central to the integrity of

the conformity process. Minimum

standards clarify the expectations of all

agencies involved in the conformity

process and thus ensure some equity

among all areas.

One commenter argued that EPA

cannot eliminate all of the modeling

attributes because they are a regulatory

requirement which cannot be

substituted with unspecified guidance

that is developed outside of the

rulemaking process. EPA agrees with

this comment and is addressing it by

retaining minimum standards in this

final rule.

Although some commenters

supported option 1, EPA does not

believe that eliminating the modeling

requirements is necessary to achieve the

objectives of these particular

commenters. Some supported option 1

because eliminating all modeling

criteria would allow areas to tailor their

network models to satisfy their current

modeling and air quality planning

needs. According to one commenter,

this option would distribute resources

and technical expertise appropriately in

state and local agencies. Commenters

also believed that under option 1 areas

would be able to do sound quantitative

analysis while having the flexibility to

accommodate modeling improvements

and demographic changes in their area.

A couple of commenters suggested

states should have the authority to

determine network model attributes on

an area-by-area basis, and one approach

for this is to allow state-level approval

of an area’s model subject to the

interagency consultation process.

EPA believes that areas have the

flexibility to appropriately tailor their

models and distribute their resources

under option 3 as well as option 1. The

conformity rule’s modeling

requirements define minimum

acceptable practice, and beyond this,

areas have flexibility to determine

appropriate modeling practices and

accommodate modeling improvements

through interagency consultation. EPA

does not believe that areas should be

able to use models that do not meet

minimum standards of acceptable

professional practice, for the reasons

described in this section.

One commenter stated that the criteria

in options 2 and 3 are accounted for in

some way in existing practice, and that

requiring them does not advance the

state of the practice and may hinder it

if future developments lead to

improved, but different, methodologies.

Another commenter suggested that by

eliminating all modeling criteria, EPA

and DOT could incorporate future

modeling improvements by revising the

guidance rather than having to go

through the difficult and timeconsuming process of revising the rule.

Others believed option 1 would give

agencies across the country access to

technical changes and expertise which

may not be available to them on a caseby-case basis, and may provide a better

way of communicating updates and

improvements in network modeling

procedures.

EPA does not believe that establishing

baseline modeling criteria, as is being

done in this final rule, will inhibit the

adoption of future modeling

improvements. EPA agrees that future

modeling guidance should provide

information to state and local agencies

about modeling updates, and EPA and

DOT are committed to working with

stakeholders to exchange ideas in the

guidance development process.

However, EPA does not believe it is

necessary to eliminate the rule’s

modeling requirements in order to issue

future modeling guidance. As general

modeling practices improve, EPA and

DOT will make periodic updates in the

form of non-enforceable modeling

guidance, rather than future

amendments to the conformity rule.

An area that has not yet implemented

the currently required model

improvements supported option 1

because the area believed option 1

would provide flexibility and make a

conformity lapse for this area less likely.

EPA believes that it would be

inappropriate to eliminate all of the

modeling criteria just because a few

areas are having temporary difficulty

achieving them. This stakeholder

concern was also raised in the context

of extending the deadline for

implementing network modeling

requirements. EPA considered the

merits of this comment, and as outlined

above, decided that a reproposal to

extend the deadline could not be

completed in time to provide relief to

the few affected areas. As previously

mentioned, EPA and DOT are assisting

the two areas without adequate network

models to achieve the minimum

standards in this rule.

EPA believes that option 3 also

addresses the concerns of the

commenters who supported option 2.

These commenters seemed most

concerned with whether any modeling

requirements would be retained in the

rule; option 1 would have eliminated all

of the rule’s network modeling

requirements. Many of the commenters

who supported option 2 also supported

option 3, provided there were

modifications for some of the language

in option 3. EPA believes that the

changes made to option 3, which are

discussed below, make the final rule’s

language more streamlined, clear, and

useful than the 1993 conformity rule

language proposed for retention in

option 2.

A few commenters who supported

option 3 also thought that areas should

not be required to use network modeling

improvements in the conformity process

prior to their application in the SIP

process. The commenters believed this

would remedy problems associated with

inconsistencies between the models

used in conformity analysis and those

used in SIP development. EPA

recognizes the commenters’ concerns

about the implementation difficulties

that may occur as a result of model

improvements. However, Clean Air Act

section 176(c)(1)(B)(iii) requires

conformity determinations to ‘‘be based

on the most recent estimates of

emissions.’’ EPA believes that areas

must use the most current tools

available at the time of the conformity

determination, in accordance with the

Clean Air Act. Using the best models

and assumptions will also produce the

best emissions estimates on which areas

will base decisions regarding

transportation and air quality. EPA also

notes that areas already have the ability

to use the consultation process to

coordinate the introduction of

transportation modeling improvements

into their planning processes. For these

reasons, EPA is not finalizing the

commenters’ suggestion.
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43793

C. Future Modeling Guidance and

Response to Comments

As stated in the proposal, EPA and

DOT will develop modeling guidance in

the future. This guidance will address

some of the modeling requirements that

were eliminated from the final rule;

provide guidance on implementing

modeling requirements; and facilitate

the exchange of information on

advancements in modeling. EPA and

DOT are committed to working with

stakeholders in the development of the

guidance, an idea which was supported

by many commenters. This process will

begin soon after this rule becomes

effective, and will include stakeholder

participation in workshops for

developing the guidance. In addition,

EPA and DOT will make drafts available

for stakeholder comments. This joint

federal, state, and local effort will bring

together the expertise to assure national

consistency and meaningful emissions

results in conformity analyses.

Some commenters were concerned

that the guidance would be mandatory

and that future guidance updates would

be difficult to implement if it were

mandatory. Today, EPA clarifies that the

guidance will not be an enforceable

requirement, although EPA and DOT

encourage use of future guidance on a

voluntary basis as deemed appropriate

by affected state and local agencies.

There is also no specific date by which

future modeling guidance must be used,

or by which models are required to be

improved in accordance with future

guidance, since the use of future

guidance is not an enforceable

requirement. Areas will decide upon

how to implement modeling guidance

using the interagency consultation

process.

Another commenter said that each

MPO should have the responsibility to

demonstrate the adequacy of their

model through documentation, and

such documentation should be included

as an appendix to the area’s conformity

package. EPA agrees with this comment

and encourages MPOs to submit such

documentation with their conformity

determinations.

D. Rationale and Discussion of

Comments: Specific Criteria

As discussed above, this final rule

specifies six requirements for network

models for serious and above ozone and

CO areas. These replace the 11 that were

required by the November 1993

conformity rule. This final rule includes

the five requirements that were

proposed as option 3, as well as a

requirement from the November 1993

conformity rule that was not originally

proposed as part of option 3 (but was

included in proposed option 2, which

included all requirements of the 1993

rule). Several minor changes were made

to the wording proposed in option 3 in

order to respond to comments, reduce

ambiguity, and streamline the text.

EPA proposed to require networkbased models to be validated against

peak and off-peak ground counts for a

base year that is not more than ten years

prior to the date of the conformity

determination. The final rule requires

validation against ‘‘observed’’ counts

rather than ‘‘ground’’ counts because the

term ‘‘ground’’ counts sometimes

implies automobile counts only. In fact,

models should be validated against

counts for all modes, including transit,

bicycle, and pedestrian. EPA believes

that because ‘‘observed’’ counts is a

more general term, it more appropriately

conveys the intent of the proposed

requirement.

EPA has also qualified the proposed

requirement for validation against peak

and off-peak counts so that validation

against both peak and off-peak counts is

only required where it is possible. The

November 1993 conformity rule simply

required validation against ground

counts; there was no reference to peak

and off-peak. When EPA proposed

option 3, it did not intend to impose any

new or more stringent network

modeling requirements. Since the time

of the proposal EPA has become aware

that not all areas collect peak and offpeak counts. As a result, although EPA

continues to believe that validation

against peak and off-peak counts is

preferable, the rule only requires it

where it is already possible given

available data.

A commenter suggested that the

conformity rule should require areas to

validate their models for a second year

at least three years before or after the

base year whenever possible. The

commenter also suggested that the rule

require validation against peak and offpeak travel demand, traffic volume,

speed, and mode share data for

household and commercial travel. EPA

did not incorporate these suggestions in

the conformity rule because the

modeling requirements are only

intended to outline minimum practice,

and in addition, EPA intends for these

amendments to streamline the existing

rule. The EPA/DOT modeling guidance

will have further discussion about best

practices and other advances in

validation techniques, and EPA believes

that this will be a better forum to

address the commenter’s ideas.

This final rule adds to the proposed

validation requirement a sentence

specifying that model forecasts must be

analyzed for reasonableness and

compared to historical trends and other

factors, and that the results must be

documented. This sentence was added

for several reasons. First, a commenter

suggested that the conformity rule

should require model forecasts to be

compared to documented historical

trends in travel behavior, such as

changes in per capita vehicle trips and

VMT, trip length, mode shares, and

time-of-day-travel, and require

significant differences between trends

and forecasts to be explained. EPA

agrees that this is minimum acceptable

practice and has added language to the

conformity rule accordingly. The

language that is included in the final

rule is more general than that suggested

by the commenter, and EPA plans for

the EPA/DOT modeling guidance to

address the issue in more detail. EPA

also added this language because it

better reflects what EPA intended when

it proposed that network-based

modeling inputs (such as land use,

population, and employment) be

appropriate to the validation base year.

This language is consistent with the

proposal on this issue and does not

require reproposal prior to final action.

The second network modeling

requirement in the final rule requires

land use, population, employment, and

other network-based model assumptions

to be documented and based on the best

available information. The proposal’s

requirement for these assumptions to be

‘‘appropriate to the validation base

year’’ has been eliminated in favor of

the new language described above that

requires reasonableness checks as part

of validation. A commenter suggested

that the proposed requirement be

expanded to refer not only to land use,

population, and employment

assumptions, but also demographic and

spatial attribute assumptions. EPA

believes that the final rule’s reference to

‘‘other network-based modeling inputs’’

is sufficiently inclusive, and specificity

such as the commenter suggests is more

appropriate to the EPA/DOT modeling

guidance.

The final rule’s third network

modeling requirement states that

scenarios of land development and use

must be consistent with the future

transportation system alternatives for

which emissions are being estimated.

This is substantially similar to the

language proposed as the fourth

modeling requirement in option 3, with

minor wording adjustments for the sake

of clarity. The final rule also includes a

sentence stating that the distribution of

employment and residences for different

transportation options must be

reasonable. This statement is intended
43794 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

as further clarification of what was

intended by the original proposed

language. Appropriate consideration

must be given to how major anticipated

transportation system improvements

might influence development and, in

turn, how that might affect the

forecasted distribution of population

and employment used to estimate travel

and emissions.

A commenter suggested that instead

of the proposed language, EPA should

require that areas make reasonable

adjustments to land use assumptions

between scenarios to account for effects

of changes in accessibility on the likely

timing and pattern of development,

using the best methods available. EPA

does not believe it is appropriate for the

conformity rule to specifically require

the use of the ‘‘best’’ methods, because

cutting-edge practices may not be

reasonably available at the same time in

all areas subject to conformity’s network

modeling requirements. With this

exception, EPA believes that the

commenter’s suggestion is basically a

restatement of the language that is being

finalized.

The final rule’s fourth network

modeling requirement states that a

capacity-sensitive assignment

methodology must be used. In addition,

emission estimates must be based on a

methodology which differentiates

between peak and off-peak link volumes

and speeds and uses speeds based on

final assigned volumes. This additional

language clarifies the proposed

requirement that ‘‘peak and off-peak

travel demand and travel times must be

provided,’’ which did not indicate

which step in the modeling process was

being referred to. EPA in fact simply

intends that emissions be calculated on

the basis of peak and off-peak speeds

separately and applied to peak and offpeak final assigned volumes, regardless

of whether these assigned volumes are

based on peak and off-peak modeling or

are modeled on a 24-hour basis.

The final rule’s fifth network

modeling requirement is based on

§ 51.452(b)(1)(iv)/§ 93.130(b)(1)(iv) of

the November 1993 conformity rule,

which requires feedback of travel times

resulting from traffic assignment to

travel times used in trip distribution.

Although this requirement was not

proposed as part of option 3, EPA

received comments based on proposed

option 2 that this requirement of the

original rule should be retained.

Commenters pointed out that this type

of consistency in the evaluation of travel

time is almost universally recognized to

be scientifically valid. A commenter

stated that not requiring feedback would

allow analyses to be manipulated to

produce desired results. Another

commenter stated that most MPOs have

already implemented full feedback, and

it is easy to perform and more accurate

than partial feedback. Commenters

submitted technical reports and papers

to the docket in order to document their

claims that full feedback is recognized

to be a necessary and sound modeling

improvement.

EPA agrees with commenters that

there is clear theoretical justification for

feedback between traffic assignment and

trip distribution, and that feedback may

be essential to accurate forecasts when

congestion exists. In addition, EPA

agrees that full feedback is already

widely available and used. As a result,

EPA believes it is appropriate to retain

the feedback requirement.

The regulatory language has been

slightly modified from the November

1993 rule to read that zone-to-zone

travel impedances used in trip

distribution must be in reasonable

agreement with travel times that are

estimated from final assigned traffic

volumes. The language now refers to

‘‘impedances’’ rather than ‘‘travel

times’’ because trip distribution

impedances may reflect more than just

vehicle travel time (e.g., cost, travel

times by other modes, etc.). The

language refers to travel times

‘‘estimated from final assigned traffic

volumes’’ rather than travel times

‘‘which result from’’ traffic assignment

in order to reflect the fact that speeds

should be estimated by post-processing

assigned volumes.

The final rule’s sixth and final

network modeling requirement is for

network-based models to be reasonably

sensitive to changes in the time(s),

cost(s), and other factors affecting travel

choices. EPA’s proposed option 3 would

have required models to be reasonably

sensitive to trip-making changes due to

changes in the cost, travel time,

capacity, and quality of all travel

choices, if the necessary information is

available. EPA has eliminated the

reference to ‘‘trip-making changes’’

because EPA received comments

indicating that this implies a

requirement for trip generation to be

dependent on accessibility. This is not

what EPA intended. The November

1993 conformity rule strongly

encouraged a dependence of trip

generation on the accessibility of

destinations, but it was not specifically

required. EPA continues to believe that

such a trip generation requirement is

not widely available, minimum practice.

In addition to deleting ‘‘trip-making

changes,’’ EPA made other

modifications to the proposed

requirement in order to streamline the

language. By making the language more

general, EPA believes that the

qualification ‘‘if the necessary

information is available’’ is no longer

necessary. EPA has therefore eliminated

this language.

EPA received comment that

§ 51.452(b)(1)(v)/§ 93.130(b)(1)(v) of the

November 1993 conformity rule should

be retained in addition to the other

paragraphs proposed as option 3.

Section 51.452(b)(1)(v)/§ 93.130(b)(1)(v)

of the November 1993 conformity rule

required free-flow speeds on network

links to be based on empirical

observations. EPA is not including this

requirement in the final rule because it

has been widely misinterpreted, and

because issues relating to the use of

speeds in network models are complex

enough that they are best handled in

modeling guidance, where they can be

fully discussed. The November 1993

requirement was read by some to

require significant data collection

efforts. In fact, EPA had simply

intended that available empirical

information be used instead of posted

speed limits. In addition to creating this

misinterpretation, the original language

was not clear about which step of the

modeling process it referred to, and

whether it was directed at input

assumptions or outputs.

EPA believes that this issue warrants

a full discussion in the EPA/DOT

modeling guidance, and that the original

regulatory requirement regarding freeflow speeds should be eliminated from

the streamlined rule in order to avoid

confusion. However, EPA and DOT

would like to emphasize that input

network speed assumptions used in

model application must be consistent

with speed assumptions used in model

development and calibration, and that

these assumptions and calibration

techniques should be documented. EPA

and DOT recognize that free-flow

impedance inputs into traffic

assignment may not reflect empirically

observed free-flow speeds, because

these input impedances may reflect

considerations that affect travel

behavior other than travel time, such as

driver preferences for using specific

classes of facilities. If free-flow

impedance inputs used in traffic

assignment deviate significantly from

observed free-flow speeds, the

documentation should include a

discussion of the differences and

rationale for adjustments made.

In addition, since emissions estimates

are extremely sensitive to vehicle speed,

EPA and DOT recommend that speeds

be estimated in a separate step after

traffic assignment (also known as ‘‘postprocessing’’), using refined speed-
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43795

volume relationships and final assigned

traffic volumes. Post-processed speeds

estimated in the validation year should

be compared with speeds empirically

observed during the peak and off-peak

periods. These comparisons may be

made for typical facilities, for example,

by facility class/area type category.

Based on these comparisons, speedvolume relationships used for speed

post-processing should be adjusted to

obtain reasonable agreement with

observed speeds. Regardless of the

specific analytical technique, every

effort must be made to ensure that speed

estimates are credible and based on a

reproducible and logical analytical

procedure.

X. Adding Non-Exempt Projects to the

Plan/TIP Without Regional Analysis

A. Description of Final Rule

In today’s final rule, EPA is not

finalizing the flexibility proposed in

§ 93.122(b)(4), which would have

allowed projects to be added to the plan

and TIP based on an alternate emissions

analysis that does not use network

modeling (for areas that are required to

use network models, i.e., serious and

above areas with an urbanized

population over 200,000). This final rule

retains the 1993 conformity rule

requirement that every plan/TIP

amendment that involves regionally

significant, non-exempt projects

requires the same level of regional

emissions analysis. For the purposes of

this discussion, a non-exempt project is

any transportation project other than

those listed in § 93.126, ‘‘Exempt

projects,’’ and § 93.127, ‘‘Projects

exempt from regional emissions

analysis.’’

Areas that are not serious or above or

do not have an urbanized population

over 200,000 are not affected by the

proposal or this change to the proposal,

because they are not subject to

requirements for network models.

B. Rationale

Based on stakeholder comments

received, EPA has determined that the

flexibility to add projects without a

regional emissions analysis would have

to be accompanied by safeguards or

limitations that were not proposed. EPA

believes that the restrictions that would

have to be imposed on the flexibility

would outweigh its benefits.

EPA agrees with a commenter who

pointed out that regulatory requirements

that govern how satisfaction of a

conformity test is demonstrated cannot

be removed and replaced with

unspecified guidance that is not subject

to notice and comment. EPA believes

that the commenter is correct in

asserting that guidelines for how the

alternate emissions analysis would have

to be performed would have to be

included in regulatory language, if the

flexibility were to be finalized. Such

additional regulatory language would

require reproposal because it is a

significant departure from what was

originally proposed; EPA did not

propose any specific guidelines or

limitations for this flexibility in either

the preamble or regulatory language of

the July 9, 1996, proposal.

Other commenters expressed serious

concerns that the flexibility to add

projects without analysis could

undermine the coordinated planning

process and achievement of air quality

objectives unless some safeguards are

included. Suggestions for limitations

and safeguards included adding

minimum criteria for alternate analysis

methodology in the rule; limiting the

flexibility to projects which are unlikely

to cause major long-term changes in

travel and development patterns;

limiting the flexibility to a certain

number of projects per planning cycle;

or requiring that the emissions from the

existing plan and TIP be below a

minimum threshold of the applicable

emissions budget. Commenters were

also concerned that safeguards needed

to be applied consistently throughout

the country. Including such safeguards

would require reproposal, and could

result in additional rule complexity that

would hamper use of the proposed

flexibility.

Because EPA believes it is legally

compelled to include minimum

guidelines for alternate emissions

analysis in the regulatory text, EPA’s

choice was to either repropose

regulatory guidelines and safeguards or

eliminate the proposed flexibility. EPA

is choosing the latter in today’s final

rule because the few alternate

methodologies suggested by

commenters were not sufficient to

provide a basis for EPA to propose

general regulatory guidelines. In

addition, EPA believes that additional

regulatory text would outweigh the

benefits of the flexibility.

The few methodologies proposed by

stakeholders were not sufficient to form

the basis of nationally applicable,

minimum guidelines for alternate

emissions analysis. When EPA proposed

the flexibility, it was seeking a

procedure that would yield similar

results as a full-scale regional analysis

but with less effort. However, the

methodologies suggested by

commenters were sketch planning

techniques, which are ancillary to but

not substitutes for network modeling.

While sketch planning techniques may

be appropriate for certain projects in

certain circumstances, the commenters

did not suggest guidelines that would

delineate when sketch planning

techniques may be an adequate

approximation or how these techniques

could be replicated nationally.

Based on comments received during

the development of the proposal and

during the comment period on the

proposal itself, EPA and DOT believe

that regulatory constraints on the

proposed flexibility would defeat the

flexibility’s purpose. Many commenters

did not believe EPA could or should

develop alternate analysis techniques

that would apply nationally, because

the value of the flexibility would be its

application on a case-by-case basis. In

addition, many stakeholders want the

regulatory text to be streamlined and

procedural modeling guidelines to be

minimized.

EPA and DOT also believe that the

possible benefits of the proposed

flexibility do not warrant the

complication of a new set of modeling

guidelines. Commenters have indicated

that the proposed flexibility would not

have a large impact on day-to-day

implementation of the conformity rule.

Many commenters stated that the

flexibility would be used infrequently,

or only in limited circumstances. Some

commenters believe that a full-scale

regional analysis is just as easy as using

an alternate sketch planning method.

For example, a commenter indicated

that adding a project and running the

regional model again is not timeconsuming once the network for the

plan has already been coded. EPA and

DOT believe the time and effort spent in

developing an alternate procedure and

getting agreement from all involved

agencies seems greater than that

involved in running the regional model.

C. Pilot Program

Although EPA did not grant the

general analysis flexibility in today’s

final rule, EPA and DOT remain willing

to consider alternate procedures on a

case-by-case basis for determining the

impact of transportation projects, since

a substitute may prove to be more

expeditious and less costly in certain

circumstances than a network-based

analysis. Those areas that develop such

an alternate procedure are invited to

apply to the conformity pilot program,

proposed on July 9, 1996. Given the

pilot program’s purposes to allow

greater flexibility in implementing the

rule and to evaluate potential

improvements to the rule, the pilot

program is an appropriate vehicle for

this flexibility.
43796 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

XI. Consequences of SIP Disapproval

A. Description of the Rule

EPA is finalizing the primary option

in the proposal, which is the option for

which the regulatory text was proposed.

In today’s final rule, EPA is also

clarifying the definition of a protective

finding. Consequences of SIP

disapproval apply when control strategy

SIPs are disapproved. Control strategy

SIPs are 15% SIPs, post-1996 SIPs, and

attainment demonstrations.

1. Disapproval With a Protective

Finding

When disapproving a control strategy

SIP revision, EPA may give the SIP a

protective finding. If EPA disapproves a

SIP but gives a protective finding, the

motor vehicle emissions budget in the

disapproved SIP could still be used to

demonstrate conformity. There would

be no adverse conformity consequences

unless highway sanctions were

imposed, as is the case with respect to

all other SIP planning failures. Highway

sanctions would be imposed two years

following EPA’s disapproval if the SIP

deficiency had not been remedied. The

conformity of the plan and TIP would

lapse once highway sanctions were

imposed. EPA would give a protective finding

where a submitted SIP contains adopted

control measures or written

commitments to adopt enforceable

control measures that fully satisfy the

emissions reductions requirements

relevant to the statutory provision for

which the SIP was submitted, such as

reasonable further progress (RFP) or

attainment. That is, EPA would give

such a submitted SIP a protective

finding if it contains enough emissions

reduction measures or commitments to

these measures to achieve its purpose of

either demonstrating RFP or attainment.

Like the November 1993 rule, a SIP

could receive a protective finding even

if all control measures are not fully

adopted in enforceable form, provided

there are written commitments to such

measures. EPA would not give a

protective finding to a SIP whose

emission reduction measures or

commitments are inadequate to achieve

the required RFP or attainment.

2. Disapproval Without a Protective

Finding

In the cases where EPA disapproves a

SIP and does not give it a protective

finding, an area has a 120-day grace

period, after which the only

transportation projects that could be

found to conform would be those

included in the first three years of the

currently conforming transportation

plan and TIP. No new plans, TIPs, or

plan/TIP amendments could be found to

conform after the grace period. Further,

no additional projects not already in the

first three years of the currently

conforming plan and TIP could be

found to conform. Since exempt projects

and non-federal projects do not require

conformity determinations, they could

proceed as long as they meet other

applicable requirements of the

conformity rule (for example, a

regionally significant non-federal

project must have been included in the

regional emissions analysis supporting

the most recent plan and TIP conformity

determination).

If any one phase of a project is

included in the first three years of the

currently conforming plan/TIP, all

subsequent phases could proceed

following a disapproval, provided that

all phases of the project were included

in the plan/TIP conformity analysis and

all other applicable project-level

conformity criteria were satisfied (e.g.,

hot-spot requirements). The ‘‘freeze’’ on new transportation

plans, TIPs, and projects would be

removed once an area submits another

control strategy SIP or maintenance plan

to replace the disapproved SIP,

provided EPA does not find the budget

inadequate. If such a replacement SIP

does not apply for conformity purposes

by the time Clean Air Act highway

sanctions are imposed (two years after

EPA’s final disapproval), conformity

would lapse, and no new project-level

conformity determinations could be

made, even for projects in the first three

years of the plan and TIP. The lapse

would last until a replacement SIP

applies for conformity purposes (i.e.,

until an adequate replacement SIP has

been submitted to EPA).

During the 120-day grace period,

plans, TIPs, and projects could be found

to conform using the budgets from the

disapproved SIP, if there is no

applicable replacement SIP for

transportation conformity purposes.

This 120-day grace period is intended to

allow areas to complete conformity

determinations that were in progress at

the time of EPA’s final disapproval.

Both the MPO and DOT must have

determined conformity by the end of the

120-day grace period. As in the previous conformity rule,

adverse consequences would occur

following any EPA final disapproval

action on a control strategy SIP without

a protective finding, even if the

disapproval is limited or partial. The

motor vehicle emissions budget is

sufficient for conformity determinations

only if the SIP as a whole satisfies the

Clean Air Act requirements for RFP or

attainment. If one part of a SIP is

disapproved without a protective

finding, even if that part does not

address mobile sources, then there is no

overall strategy for RFP or attainment,

and it is not possible to determine

whether consistency with the motor

vehicle emissions budget will result in

a level of emissions consistent with RFP

or attainment.

A plan/TIP conformity lapse

previously imposed under the

November 1993 rule due to SIP

disapproval without a protective finding

would convert to a ‘‘freeze’’ as described

in this notice once this rule becomes

effective, provided highway sanctions

have not yet been imposed. The

‘‘freeze’’ would continue until highway

sanctions are imposed, which normally

occurs two years after EPA’s final

disapproval. Once highway sanctions

are imposed, the conformity of the plan

and TIP would lapse, as occurs whether

or not the SIP had received a protective

finding.

Finally, EPA wishes to clarify that

although the preamble to the proposal

inadvertently indicated that

consequences of SIP disapproval also

apply to disapproval of maintenance

plans, this is not what EPA intends nor

is it included in the final rule language.

Consequences of SIP disapproval only

apply when control strategy SIPs are

disapproved. EPA did not refer to

maintenance plans in the relevant

regulatory text of the proposal or the

conformity rule as amended in 1995.

The regulatory text would not make

sense with respect to maintenance plans

because sanctions do not apply for

maintenance plan disapprovals.

Furthermore, there is less need to apply

the consequences for disapproving a

maintenance plan, since an area could

revert to using its attainment SIP budget

for demonstrating conformity if a

maintenance plan is disapproved.

B. Rationale

EPA believes that the option finalized

today provides the best balance between

the competing objectives of minimizing

new transportation commitments after a

SIP disapproval and minimizing

disruption to the transportation

planning process. EPA believes that new

projects should not be approved when

the control strategy SIP has been

disapproved without a protective

finding, because if a SIP does not

identify enough emission reductions

and the motor vehicle emissions budget

does not provide for RFP or attainment,

then there is no basis to claim that a

transportation activity conforms within

the meaning of Clean Air Act section

176(c). Furthermore, adding more

transportation projects may make it
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43797

more difficult for the air agency to

create a SIP that achieves sufficient

emissions reductions, and may intensify

the need for additional control strategies

later. EPA is allowing areas to

grandfather projects included in the first

three years of the currently conforming

plan and TIP in order to provide

stability for planning.

Most commenters supported the

primary option EPA is finalizing today,

and gave a variety of reasons. Several

stakeholders commented that this

option allows some continuity for

transportation planning, since ideally it

allows the TIP to continue in the short

term while changes to the SIP are

underway. Another commenter noted

that since this option minimizes the

disruption of projects in the first three

years of the TIP, it limits the financial

and legal risk to local governments

when they undertake local bond

programs to finance these projects.

Another commenter noted that SIPs may

be disapproved for numerous reasons

outside of the control of the DOT or

MPO, and stopping all transportation

projects immediately is not in the

public’s best interest. Finally, a

commenter added that since the projects

that would be allowed to proceed would

have been included in a plan and TIP

found to conform previously, it seems

reasonable to allow these projects to

advance.

Some commenters supported aligning

the timing of conformity consequences

of SIP disapproval with imposition of

highway sanctions, which was option 4

in the proposal. Commenters suggested

that this option would simplify

communication, make the rule more

consistent, and eliminate a perceived

inequity with stationary sources.

However, for the reasons stated above,

EPA believes that there is no

appropriate basis to find new projects

that were not included in the previously

conforming plan/TIP to conform when

the SIP has been disapproved without a

protective finding. Commenters

supporting option 4 did not identify a

means by which to claim that such

projects would not contribute to

violations of the standards.

C. Discussion of Specific Comments

Some objections to the legality of the

primary option were raised. One

commenter objected to any project

approvals based on plans and TIPs that

have lapsed, since even projects in the

first three years cannot satisfy the

statutory test for coming from a

conforming plan and TIP if the

conformity of the plan and TIP has

lapsed. EPA agrees that projects cannot

be approved if the plan and TIP have

lapsed. However, in this situation, the

conformity status of existing plans and

TIPs is not lapsing. The plan and TIP is

frozen such that no new projects can be

added, but projects in the first three

years can proceed to project-level

approval. EPA is grandfathering plans

and TIPs that have already been found

to conform. EPA agrees that new plans

and TIPs or plan/TIP amendments

cannot be found to conform after the

120-day grace period.

Another objection raised was that

EPA cannot allow plans, TIPs, or

projects to conform based on SIPs that

have been disapproved, since

conformity must be based on the

applicable implementation plan. EPA

agrees with this statement as well.

Today’s action makes it clear that an

area cannot find any new projects to

conform once the SIP has been

disapproved without a protective

finding. EPA is only allowing areas to

approve projects that are within the first

three years of a plan and TIP that has

already been found to conform, for the

two years prior to lapsing.

A commenter objected to codification

of EPA’s committal SIP policy by the

adoption of the definition of ‘‘protective

finding’’ and the authorization for

protective findings in § 93.120.

EPA responds by clarifying that

granting a protective finding does not

codify a committal SIP policy. By giving

a SIP a protective finding, EPA does not

mean to imply that these SIPs are in any

way approvable. Rather, by

disapproving the SIP, EPA is stating that

the SIP does not meet Clean Air Act SIP

requirements. Granting a protective

finding merely allows an area to use the

motor vehicle emissions budget in the

disapproved SIP to demonstrate

conformity, where appropriate. As other

commenters stated, there are many

reasons why a SIP could be disapproved

by EPA, some of which would have

nothing to do with the integrity of the

motor vehicle emissions budget. A

protective finding ensures that the

transportation community is not

penalized as a result of a SIP failure

when the emissions budget in the SIP is

adequate to serve as the basis of a

conformity determination.

Finally, a commenter believed that

prohibiting any project funding except

for grandfathered projects after the

imposition of highway sanctions (i.e., a

conformity lapse) is not consistent with

the policy adopted by Congress for the

imposition of sanctions. The commenter

stated that the conformity rule should

be revised to explicitly adopt the policy

of prohibiting funding only for highway

capacity expansion while providing

funding for all those projects that will

improve air quality identified in Clean

Air Act section 179(b)(1)(B). Section

179(b)(1)(B) lists the types of projects

that can proceed under sanctions.

However, sanctions and conformity

are two different parts of the Clean Air

Act, and serve quite different purposes.

Because certain activities can proceed

under sanctions does not mean that

these types of projects should not have

to undergo a conformity analysis prior

to implementation, or should be

permanently grandfathered from

conformity requirements. Furthermore,

EPA does allow transportation control

measures in approved SIPs to proceed

even during a conformity lapse. This is

consistent with the sanctions policy’s

provision for projects that benefit air

quality to proceed.

XII. Traffic Signal Synchronization

On September 24, 1996, Congress

amended the Clean Air Act to state that

traffic signal synchronization projects

are exempt from conformity

determinations prior to their funding,

approval, or implementation. However,

once these projects are funded,

approved, or implemented (whichever

occurs first), they are to be included in

the conformity determinations for future

transportation plans, TIPs, and projects.

The final rule reflects this Clean Air

Act amendment in new § 93.128,

‘‘Traffic signal synchronization

projects.’’ This section states that traffic

signal synchronization projects may be

approved, funded, and implemented

without a conformity determination.

However, all subsequent regional

emissions analyses required by

§§ 93.118 and 93.119 for transportation

plans, TIPs, or projects not from a

conforming plan and TIP must include

such regionally significant traffic signal

synchronization projects.

In the preamble to the proposal, prior

to congressional action on this issue,

EPA had discussed whether traffic

signal synchronization projects should

be exempt from conformity. This topic

was included because several

stakeholders had advocated the

exemption of signal synchronization

projects on the basis of positive air

quality and congestion mitigation

impacts. EPA did not propose to exempt

these projects for reasons explained in

the proposal’s preamble. EPA received a

few comments on both sides of this

issue. However, EPA is now

promulgating this change to the

conformity rule without reproposing

because Congress has already amended

the Clean Air Act and any additional

comments could not change the

outcome. The Clean Air Act has

exempted these projects from advance
43798 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

conformity determinations as a matter of

law, and EPA is now merely reflecting

this statutory change in the regulations.

EPA finds good cause to dispense with

notice and comment because EPA has

no discretion in this matter and is

merely clarifying the rule to be

consistent with the amended statute.

XIII. Conformity SIPs

As specified in the original November

1993 conformity rule and § 51.390(b) of

today’s final rule, the federal conformity

requirements no longer govern

conformity determinations once EPA

approves a state conformity SIP

revision. The provisions of the approved

SIP apply instead. Therefore, the new

flexibilities found in today’s rulemaking

will not take effect in areas that already

have an approved conformity SIP until

the state prepares a new conformity SIP

and it is approved by EPA.

Several stakeholders commented that

this process could take too long to give

areas adequate relief. Commenters

suggested several possible solutions. For

example, EPA could grant relief from

the build/no-build test without the

approval of the new conformity SIP, or

today’s rule could become effective

upon submission of a formal statement

that the state is preparing a new

conformity SIP. These suggestions

cannot be implemented because once

EPA approves a state’s conformity SIP,

that SIP becomes federally enforceable

law, and cannot be changed without

notice-and-comment rulemaking. The

conformity rule itself cannot change the

applicability of approved conformity

SIPs.

Another commenter suggested that

EPA add language to the rule to

automatically approve conformity SIPs

that adopt the EPA language by

reference. However, SIP approval

requires public notice and comment in

the Federal Register in accordance with

the APA; it cannot be given

automatically. Furthermore, there are

sections of the conformity SIP, for

example, the consultation section, that

cannot be adopted by reference or

verbatim because they must be tailored

for the state’s own circumstances.

However, EPA understands areas’

desire to determine conformity using

the procedures in today’s final rule, and

EPA will give priority to processing

conformity SIP revisions designed to

incorporate these changes in those areas

with approved conformity SIPs. EPA

also commits to expedite the approval of

conformity SIP revisions that, to the

extent possible, incorporate the

amendments verbatim or by reference.

EPA is requiring conformity SIPs to be

submitted to EPA within 12 months of

today’s rulemaking. One commenter

stated that the 12-month timeframe for

revising conformity SIPs is too short

given that state air quality agencies

would have to hire new staff to

accomplish the task, and that 12 months

is inconsistent with the Clean Air Act

provisions that allow 18 months after a

SIP call for an area to remedy its

deficiencies. EPA agrees that experience

has shown 12 months to be a very

ambitious deadline. However, Clean Air

Act section 176(c)(4)(C) is very specific

in its intent that states submit

conformity SIPs within 12 months of

EPA’s rules. EPA does not believe that

the Clean Air Act’s general language

regarding SIP calls should be used to

override the specific timeframe for

submitting conformity SIPs that is

evidenced in Clean Air Act section

176(c)(4)(C). In the case of a SIP call,

EPA is allowed to establish reasonable

deadlines not to exceed 18 months for

an area to correct its SIP inadequacies.

However, because it cannot be argued

that revising a conformity SIP to include

these amendments is more timeconsuming than preparing an original

conformity SIP, there is no appropriate

basis to claim that the general SIP call

language should override the specific

intent of Congress regarding deadlines

for submission of conformity SIPs

relative to promulgation of federal

conformity rules.

XIV. Hot-Spot Tests

Most commenters supported the

clarification to § 93.123, ‘‘Procedures for

determining localized CO and PM–10

concentrations (hot-spot analysis),’’

which allows the use of procedures

other than ‘‘Guideline’’ models in hotspot analyses if the alternate procedures

are developed through the interagency

consultation process and are approved

by the EPA Regional Administrator.

A few commenters believed that the

CO hot-spot requirements for all

projects affecting intersections of level

of service (LOS) D, E, and F are too

stringent and burdensome when

compared to the realized benefits from

such analyses. Other commenters

thought that the requirements were too

prescriptive, because LOS D does not

automatically indicate an air quality

problem. One commenter suggested that

the conformity rule should only require

hot-spot analyses for the worst, most

representative intersection on each

major street impacted by a project,

rather than all intersections that fit the

current rule’s hot-spot criteria. EPA

believes no change to the proposal is

necessary to address these concerns

because it does have flexibility that

allows areas to develop their own

protocols that have different screening

mechanisms.

A few commenters suggested that the

conformity rule should be clarified to

allow projects which decrease the

likelihood of public exposure to

exceedances of the NAAQS. For

example, commenters stated that a

project should be allowed to make a

violation worse in a place not

frequented by the public if it improves

air quality and eliminates violations

where public exposure is more likely.

However, Clean Air Act section

176(c)(1)(B) states that transportation

projects must not cause or contribute to

any new violation of any standard in

any area, or increase the frequency or

severity of any existing violation of any

standard in any area. It is not public

exposure to a violation of a standard

that the Clean Air Act language

prohibits; it prohibits any violation of

any standard in any area. The

conformity rule cannot override the

Clean Air Act to make exceptions that

create new or worsen existing

violations.

XV. TCM Flexibility

As discussed in the proposal

preamble, EPA remains committed to

issuing guidance on how areas can

substitute TCMs in previously approved

SIPs without additional EPA approvals.

EPA also stated in the proposal that

development of such a substitution

mechanism is possible under existing

EPA SIP policy, so this final rule does

not address the issue.

XVI. Conformity and the Proposed

NAAQS Revisions

Several commenters requested

information on how the revisions of the

ozone and particulate matter (PM)

NAAQS standards would affect

conformity. EPA issued a notice of

proposed policy entitled, ‘‘Interim

Implementation Policy on New or

Revised Ozone and Particulate Matter

NAAQS’’ (61 FR 65752, December 13,

1996), which proposes how current

programs would be affected while states

are developing plans to implement the

new NAAQS. This proposed policy

notice specifically discusses conformity.

A final policy for implementing the one

hour ozone and pre-existing PM

NAAQS will be published in the

Federal Register in September 1997.

EPA proposed in its December 1996

notice that conformity determinations

would not be required to address the

new NAAQS until SIPs addressing the

new NAAQS are approved by EPA. New

nonattainment areas would not be

subject to conformity until EPA

approves the SIPs that address these
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43799

standards. Existing nonattainment and

maintenance areas would not have to

consider the 8-hour ozone standard or

the PM–2.5 standard in their conformity

determinations until EPA approved SIPs

addressing those pollutants.

In general, the existing control

strategy SIPs and maintenance plans

that establish motor vehicle emissions

budgets will remain in force until they

are superseded by new or revised SIPs

that have been approved by EPA. Thus,

conformity will continue as usual in

existing nonattainment and

maintenance areas for several years.

Areas that have not submitted post-1996

rate-of-progress plans or attainment

demonstrations for the one hour ozone

standard would be required to conform

to the 15% SIP until a post-1996 plan

or new attainment demonstration is

submitted.

In such areas, conformity to that plan

would not be required, and these areas

would continue to demonstrate

conformity to the 15% SIP. Areas that

are not required to submit control

strategy SIPs (e.g., marginal areas) and

have not been demonstrating conformity

to motor vehicle emissions budgets

would be required to continue

demonstrating conformity using the

emission reduction tests until SIPs with

motor vehicle emissions budgets are

submitted. Areas with approved

maintenance plans would continue

demonstrating conformity using the

budgets established by those plans.

States are free to establish, through

the SIP process, a motor vehicle

emissions budget that addresses the new

NAAQS in advance of a complete SIP

attainment demonstration. That is, a

state could submit a motor vehicle

emissions budget that does not

demonstrate attainment but is consistent

with projections and commitments to

control measures and achieves some

progress toward attainment. Such a

budget would apply for conformity

purposes in addition to existing budgets

addressing the old NAAQS (i.e., a SIP

that does not demonstrate attainment of

the new NAAQS would not supersede

existing control strategy SIPs).

Today’s final conformity rule does not

include any changes specifically

intended to address the NAAQS

revisions. No changes are necessary in

the short term because the existing

conformity process will continue for

several years. The Federal Advisory

Committee Act (FACA) Subcommittee

for Ozone, PM and Regional Haze

Implementation Programs is discussing

the longer-term conformity issues, and

EPA’s decisions will be published in

future policy notices. In addition, EPA

will be promulgating a conformity rule

addressing transitional ozone areas

under the new standard by December

1998.

XVII. Minor Changes to the Rule

A. Definitions

This final rule includes three new

definitions in § 93.101. For the purposes

of this final rule, EPA has defined

‘‘written commitment’’ to mean a

commitment that includes a description

of the action to be taken; a schedule for

the completion of the action; a

demonstration that funding necessary to

implement the action has been

authorized by the appropriating or

authorizing body; and an

acknowledgment that the commitment

is an enforceable obligation under the

SIP. The conformity rule uses the term

‘‘written commitment’’ with respect to

SIP commitments to control measures,

and also with respect to commitments to

project-level emissions mitigation or

control measures as part of a conformity

determination. As described in

§ 93.125(c), these latter commitments

are enforceable under the conformity

SIP. As is the case with any other type

of SIP commitments, written

commitments as defined by the

conformity rule must be made by an

agency that has legal authority to

implement the action in question.

EPA is defining the term ‘‘written

commitment’’ because a commenter

requested it, and EPA agrees that this

will ease implementation by clarifying

EPA’s intent. This definition is

consistent with EPA’s historical

implementation of the conformity rule.

EPA is also defining the term ‘‘safety

margin’’ to mean the amount by which

the total projected emissions from all

sources of a given pollutant are less than

the total emissions that would satisfy

the applicable Clean Air Act

requirement for reasonable further

progress, attainment, or maintenance.

EPA has added a reference to that term

in § 93.118(e)(4), which lists the

requirements for the adequacy of

submitted SIPs. This section specifies

that documentation of any changes to

established safety margins is a criterion

for the adequacy of a submitted SIP. The

term ‘‘safety margin’’ is also used in

§ 93.124(b), although it is used and

defined in that section in a specific

context. This definition is consistent

with the historical implementation of

the conformity rule and with the

definition in § 93.124(b).

EPA is defining ‘‘lapse’’ to mean that

the conformity determination for a

transportation plan or TIP has expired,

and thus there is no currently

conforming transportation plan and TIP.

B. Consultation

EPA is making two minor changes to

the consultation section in response to

comments on the proposal. One

commenter suggested that the public

consultation requirements of § 93.105(e)

should be included in the conformity

SIP. EPA agrees with this commenter

and has modified § 93.105(a) to clarify

that the public consultation

requirements described in § 93.105(e)

must also be required by the conformity

SIP. Because the federal conformity rule

ceases to apply once the conformity SIP

has been approved, the requirements of

§ 93.105(e) must be required by the

conformity SIP or the SIP would not

provide for appropriate public input.

Section 93.105(e) requires public

consultation consistent with the

requirements of 23 CFR 450.316(b) and

articulates a few specific requirements.

EPA intends for the conformity SIP to

reiterate these statements; EPA does not

intend for the conformity SIP to actually

include the specific public consultation

procedures that an area develops under

23 CFR 450.316(b).

EPA is also adding a new element to

the list of processes for which

consultation procedures must be

developed. Section 93.105(c)(1)(vii)

requires areas to establish a process for

choosing conformity tests and

methodologies for isolated rural

nonattainment and maintenance areas,

as required by § 93.109(g)(2)(iii). (Refer

to section V. of this preamble, ‘‘Rural

Nonattainment and Maintenance Areas’’

for a discussion of the choices of

conformity tests that are available to

rural areas.) Of course, states without

isolated rural nonattainment and

maintenance areas would not need to

develop such procedures.

As explained in the proposal

preamble, EPA had not proposed to

amend § 51.402/§ 93.105 of the original

conformity rule to add this element to

the list of processes for which

consultation procedures must be

developed, because EPA believed it was

clear that consultation would be

necessary to use the new rural

provision. Commenters had mixed

opinions about whether and how the

new consultation needs should be

integrated into the conformity rule.

Some commenters did not believe that

the conformity rule needed to be

changed. However, some thought that

further guidance regarding necessary

changes in areas’ consultation

procedures would be useful. Given

these comments, EPA decided to add

the new consultation requirement to the

conformity rule for clarity and so that

the rule could serve as a comprehensive
43800 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

list of items that consultation

procedures must address.

One commenter requested that EPA

explain that Memoranda of

Understanding, or MOUs, can be used to

establish interagency consultation

procedures. The commenter is correct

that MOUs can be used to establish

interagency consultation procedures,

provided that the MOU is enforceable

under state law. In order for the MOU

to be enforceable, all agencies that are

covered by the conformity rule must

sign the MOU, including federal

agencies and the recipients of funds

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

Federal Transit Laws (i.e., non-federal

project sponsors). In addition, the

conformity SIP must include a rule that

requires all future parties covered by the

rule, including new recipients of funds

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

Federal Transit Laws, to sign the MOU.

This ensures that the MOU approach

will continue to apply to all subject

parties. EPA does not believe that any

regulatory changes are needed to

address this issue.

C. Changes to § 93.109

Section 93.109, ‘‘Criteria and

procedures for determining conformity

of transportation plans, programs, and

projects: General,’’ describes which

conformity tests apply and when they

apply for each pollutant and for rural

areas. This section has been revised to

reflect changes discussed elsewhere in

this preamble. In addition, this section

has been slightly revised so that its

description of conformity requirements

does not refer solely to an area’s

nonattainment classification. The

section now also refers to the control

strategy SIP requirements for a given

classification. EPA believes this clarifies

the conformity rule and makes it more

flexible in the case of future revisions to

the classification system, which could

occur if the NAAQS are revised. These

clarifications do not change the

substance of the section’s requirements.

XVIII. Administrative Requirements

A. Administrative Designation

Executive Order 12866

Under Executive Order 12866, (58 FR

51735 (October 4, 1993)) the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

otherwise adversely affect in a material

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or state, local, or tribal

governments or communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof;

(4) Raise novel or policy issues arising

out of legal mandates, the President’s

priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because this action raises novel

legal or policy issues arising out of legal

mandates, the President’s priorities, and

the principles set forth in the Executive

Order. As such, this action was

submitted to OMB for review. Changes

made in response to OMB suggestions or

recommendations will be documented

in the public record.

B. Paperwork Reduction Act

This final rule does not impose any

new information collection

requirements and results in no change

to the currently approved collection

requirements. OMB has approved the

information collection requirements

contained in this rule under the

provisions of the Paperwork Reduction

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

The information collection

requirements of EPA’s Transportation

Conformity Rule and these amendments

to it are covered under the Information

Collection Request of the Department of

Transportation entitled, ‘‘Metropolitan

and Statewide Transportation

Planning,’’ approved by OMB under the

Paperwork Reduction Act, and assigned

OMB Control Number 2132–0529.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a federal

agency. This includes the time needed

to review instructions; develop, acquire,

install, and utilize technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for DOT’s regulations are listed

in 5 CFR Part 1320.

Send any comments on the

recordkeeping and reporting

requirements of Transportation

Conformity to: Mr. Sean Libberton, U.S.

Department of Transportation, TPL11,

400 7th Street, SW., Washington, DC

20590, and Office of Information and

Regulatory Affairs, Office of

Management and Budget, Attention:

Desk Officer for EPA/OAR, Room 10202,

725 17th Street, NW., Washington, DC

20503. In any correspondence please

refer to OMB Control Number 2132–

0529.

C. Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980

requires federal agencies to identify

potentially adverse impacts of federal

regulations upon small entities. In

instances where significant impacts are

possible on a substantial number of

these entities, agencies are required to

perform a Regulatory Flexibility

Analysis (RFA).

EPA has determined that today’s

regulations will not have a significant

impact on a substantial number of small

entities. This regulation affects federal

agencies and metropolitan planning

organizations, which by definition are

designated only for metropolitan areas

with a population of at least 50,000.

These organizations do not constitute

small entities.

Therefore, as required under section

605 of the Regulatory Flexibility Act, 5

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

will not have a significant economic

impact on a substantial number of small

entities.

D. Submission to Congress and the

Comptroller General

Under 5 U.S.C. 801(a)(1)(A), as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives, and the Comptroller

General of the United States prior to

publication of the rule in today’s

Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

E. Unfunded Mandates

Under Sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’),

signed into law on March 22, 1995, EPA
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43801

must undertake various actions in

association with proposed or final rules

that include a federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to state,

local, or tribal governments in the

aggregate.

EPA has determined that to the extent

this rule imposes any mandate within

the meaning of the Unfunded Mandates

Act, this final action does not include a

mandate that may result in estimated

costs of $100 million or more to state,

local, or tribal governments in the

aggregate or to the private sector. These

rule amendments relax requirements of

the previously applicable conformity

rule, and thus do not impose any

additional burdens. Therefore, EPA has

not prepared a statement with respect to

budgetary impacts.

List of Subjects

40 CFR Part 51

Environmental protection,

Administrative practice and procedure,

Air pollution control, Carbon monoxide,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter,

Reporting and recordkeeping

requirements, Transportation, Volatile

organic compounds.

40 CFR Part 93

Administrative practice and

procedure, Air pollution control, Carbon

monoxide, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate

matter, Transportation, Volatile organic

compounds.

Dated: July 31, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, 40 CFR parts 51 and 93 are

amended as follows:

PART 51—[AMENDED]

1. The authority citation for part 51 is

revised to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. Subpart T is revised to read as

follows:

Subpart T—Conformity to State or

Federal Implementation Plans of

Transportation Plans, Programs, and

Projects Developed, Funded or

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

Federal Transit Laws

§ 51.390 Implementation plan revision.

(a) States with areas subject to this

subpart and part 93, subpart A, of this

chapter must submit to the EPA and

DOT a revision to their implementation

plan which contains criteria and

procedures for DOT, MPOs and other

State or local agencies to assess the

conformity of transportation plans,

programs, and projects, consistent with

this subpart and part 93, subpart A, of

this chapter. This revision is to be

submitted by November 25, 1994 (or

within 12 months of an area’s

redesignation from attainment to

nonattainment, if the State has not

previously submitted such a revision).

Further revisions to the implementation

plan required by amendments to part

93, subpart A, of this chapter must be

submitted within 12 months of the date

of publication of such final

amendments. EPA will provide DOT

with a 30-day comment period before

taking action to approve or disapprove

the submission. A State’s conformity

provisions may contain criteria and

procedures more stringent than the

requirements described in 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.

(b) 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. Following EPA approval

of the State conformity provisions (or a

portion thereof) in a revision to the

applicable implementation plan,

conformity determinations would be

governed by the approved (or approved

portion of the) State criteria and

procedures. The Federal conformity

regulations contained in part 93, subpart

A, of this chapter would apply only for

the portion, if any, of the State’s

conformity provisions that is not

approved by EPA. In addition, any

previously applicable implementation

plan 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.

(c) The implementation plan revision

required by this section must meet all of

the requirements of part 93, subpart A,

of this chapter.

(d) In order for EPA to approve the

implementation plan revision submitted

to EPA and DOT under this subpart, the

plan must address all requirements of

part 93, subpart A, of this chapter in a

manner which gives them full legal

effect. In particular, the revision shall

incorporate the provisions of the

following sections of part 93, subpart A,

of this chapter 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 the following sections of this

chapter: §§ 93.101, 93.102, 93.103,

93.104, 93.106, 93.109, 93.110, 93.111,

93.112, 93.113, 93.114, 93.115, 93.116,

93.117, 93.118, 93.119, 93.120, 93.121,

93.126, and 93.127.

PART 93—[AMENDED]

3. The authority citation for part 93

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

4. Subpart A is revised to read as

follows:

Subpart A—Conformity to State or Federal

Implementation Plans of Transportation

Plans, Programs, and Projects Developed,

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

or the Federal Transit Laws

Sec.

93.100 Purpose.

93.101 Definitions.

93.102 Applicability.

93.103 Priority.

93.104 Frequency of conformity

determinations.

93.105 Consultation.

93.106 Content of transportation plans.

93.107 Relationship of transportation plan

and TIP conformity with the NEPA

process.

93.108 Fiscal constraints for transportation

plans and TIPs.

93.109 Criteria and procedures for

determining conformity of transportation

plans, programs, and projects: General.

93.110 Criteria and procedures: Latest

planning assumptions.

93.111 Criteria and procedures: Latest

emissions model.

93.112 Criteria and procedures:

Consultation.

93.113 Criteria and procedures: Timely

implementation of TCMs.

93.114 Criteria and procedures: Currently

conforming transportation plan and TIP.

93.115 Criteria and procedures: Projects

from a plan and TIP.

93.116 Criteria and procedures: Localized

CO and PM10 violations (hot spots).

93.117 Criteria and procedures: Compliance

with PM10 control measures.

93.118 Criteria and procedures: Motor

vehicle emissions budget.

93.119 Criteria and procedures: Emission

reductions in areas without motor

vehicle emissions budgets.

93.120 Consequences of control strategy

implementation plan failures.

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.

93.122 Procedures for determining regional

transportation-related emissions.

93.123 Procedures for determining

localized CO and PM10 concentrations

(hot-spot analysis).
43802 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

93.124 Using the motor vehicle emissions

budget in the applicable implementation

plan (or implementation plan

submission).

93.125 Enforceability of design concept and

scope and project-level mitigation and

control measures.

93.126 Exempt projects.

93.127 Projects exempt from regional

emissions analyses.

93.128 Traffic signal synchronization

projects.

Subpart A—Conformity to State or

Federal Implementation Plans of

Transportation Plans, Programs, and

Projects Developed, Funded or

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

Federal Transit Laws

§ 93.100 Purpose.

The purpose of this subpart is to

implement section 176(c) of the Clean

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

7401 et seq.), and the related

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

respect to the conformity of

transportation plans, programs, and

projects which are developed, funded,

or approved by the United States

Department of Transportation (DOT),

and by metropolitan planning

organizations (MPOs) or other recipients

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

Federal Transit Laws (49 U.S.C. Chapter

53). This subpart sets forth policy,

criteria, and procedures for

demonstrating and assuring conformity

of such activities to an applicable

implementation plan developed

pursuant to section 110 and Part D of

the CAA.

§ 93.101 Definitions.

Terms used but not defined in this

subpart shall have the meaning given

them by the CAA, titles 23 and 49

U.S.C., other Environmental Protection

Agency (EPA) regulations, or other DOT

regulations, in that order of priority.

Applicable implementation plan is

defined in section 302(q) of the CAA

and means the portion (or portions) of

the implementation plan, or most recent

revision thereof, which has been

approved under section 110, or

promulgated under section 110(c), or

promulgated or approved pursuant to

regulations promulgated under section

301(d) and which implements the

relevant requirements of the CAA.

CAA means the Clean Air Act, as

amended (42 U.S.C. 7401 et seq.).

Cause or contribute to a new violation

for a project means:

(1) To cause or contribute to a new

violation of a standard in the area

substantially affected by the project or

over a region which would otherwise

not be in violation of the standard

during the future period in question, if

the project were not implemented; or

(2) To contribute to a new violation in

a manner that would increase the

frequency or severity of a new violation

of a standard in such area.

Clean data means air quality

monitoring data determined by EPA to

meet the requirements of 40 CFR part 58

that indicate attainment of the national

ambient air quality standard.

Control strategy implementation plan

revision is the implementation plan

which contains specific strategies for

controlling the emissions of and

reducing ambient levels of pollutants in

order to satisfy CAA requirements for

demonstrations of reasonable further

progress and attainment (CAA sections

182(b)(1), 182(c)(2)(A), 182(c)(2)(B),

187(a)(7), 189(a)(1)(B), and 189(b)(1)(A);

and sections 192(a) and 192(b), for

nitrogen dioxide).

Design concept means the type of

facility identified by the project, e.g.,

freeway, expressway, arterial highway,

grade-separated highway, reserved rightof-way rail transit, mixed-traffic rail

transit, exclusive busway, etc.

Design scope means the design

aspects which will affect the proposed

facility’s impact on regional emissions,

usually as they relate to vehicle or

person carrying capacity and control,

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

constructed or added, length of project,

signalization, access control including

approximate number and location of

interchanges, preferential treatment for

high-occupancy vehicles, etc.

DOT means the United States

Department of Transportation.

EPA means the Environmental

Protection Agency.

FHWA means the Federal Highway

Administration of DOT.

FHWA/FTA project, for the purpose of

this subpart, is any highway or transit

project which is proposed to receive

funding assistance and approval

through the Federal-Aid Highway

program or the Federal mass transit

program, or requires Federal Highway

Administration (FHWA) or Federal

Transit Administration (FTA) approval

for some aspect of the project, such as

connection to an interstate highway or

deviation from applicable design

standards on the interstate system.

Forecast period with respect to a

transportation plan is the period

covered by the transportation plan

pursuant to 23 CFR part 450.

FTA means the Federal Transit

Administration of DOT.

Highway project is an undertaking to

implement or modify a highway facility

or highway-related program. Such an

undertaking consists of all required

phases necessary for implementation.

For analytical purposes, it must be

defined sufficiently to:

(1) Connect logical termini and be of

sufficient length to address

environmental matters on a broad scope;

(2) Have independent utility or

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

reasonable expenditure even if no

additional transportation improvements

in the area are made; and

(3) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Horizon year is a year for which the

transportation plan describes the

envisioned transportation system

according to § 93.106.

Hot-spot analysis is an estimation of

likely future localized CO and PM10

pollutant concentrations and a

comparison of those concentrations to

the national ambient air quality

standards. Hot-spot analysis assesses

impacts on a scale smaller than the

entire nonattainment or maintenance

area, including, for example, congested

roadway intersections and highways or

transit terminals, and uses an air quality

dispersion model to determine the

effects of emissions on air quality.

Increase the frequency or severity

means to cause a location or region to

exceed a standard more often or to cause

a violation at a greater concentration

than previously existed and/or would

otherwise exist during the future period

in question, if the project were not

implemented.

Lapse means that the conformity

determination for a transportation plan

or TIP has expired, and thus there is no

currently conforming transportation

plan and TIP.

Maintenance area means any

geographic region of the United States

previously designated nonattainment

pursuant to the CAA Amendments of

1990 and subsequently redesignated to

attainment subject to the requirement to

develop a maintenance plan under

section 175A of the CAA, as amended.

Maintenance plan means an

implementation plan under section

175A of the CAA, as amended.

Metropolitan planning organization

(MPO) is that organization designated as

being responsible, together with the

State, for conducting the continuing,

cooperative, and comprehensive

planning process under 23 U.S.C. 134

and 49 U.S.C. 5303. It is the forum for

cooperative transportation decisionmaking.

Milestone has the meaning given in

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

CAA. A milestone consists of an
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43803

emissions level and the date on which

it is required to be achieved.

Motor vehicle emissions budget is that

portion of the total allowable emissions

defined in the submitted or approved

control strategy implementation plan

revision or maintenance plan for a

certain date for the purpose of meeting

reasonable further progress milestones

or demonstrating attainment or

maintenance of the NAAQS, for any

criteria pollutant or its precursors,

allocated to highway and transit vehicle

use and emissions.

National ambient air quality

standards (NAAQS) are those standards

established pursuant to section 109 of

the CAA.

NEPA means the National

Environmental Policy Act of 1969, as

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

NEPA process completion, for the

purposes of this subpart, with respect to

FHWA or FTA, means the point at

which there is a specific action to make

a determination that a project is

categorically excluded, to make a

Finding of No Significant Impact, or to

issue a record of decision on a Final

Environmental Impact Statement under

NEPA.

Nonattainment area means any

geographic region of the United States

which has been designated as

nonattainment under section 107 of the

CAA for any pollutant for which a

national ambient air quality standard

exists.

Project means a highway project or

transit project.

Protective finding means a

determination by EPA that a submitted

control strategy implementation plan

revision contains adopted control

measures or written commitments to

adopt enforceable control measures that

fully satisfy the emissions reductions

requirements relevant to the statutory

provision for which the implementation

plan revision was submitted, such as

reasonable further progress or

attainment.

Recipient of funds designated under

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

Laws means any agency at any level of

State, county, city, or regional

government that routinely receives title

23 U.S.C. or Federal Transit Laws funds

to construct FHWA/FTA projects,

operate FHWA/FTA projects or

equipment, purchase equipment, or

undertake other services or operations

via contracts or agreements. This

definition does not include private

landowners or developers, or

contractors or entities that are only paid

for services or products created by their

own employees.

Regionally significant project means a

transportation project (other than an

exempt project) that is on a facility

which serves regional transportation

needs (such as access to and from the

area outside of the region, major activity

centers in the region, major planned

developments such as new retail malls,

sports complexes, etc., or transportation

terminals as well as most terminals

themselves) and would normally be

included in the modeling of a

metropolitan area’s transportation

network, including at a minimum all

principal arterial highways and all fixed

guideway transit facilities that offer an

alternative to regional highway travel.

Safety margin means the amount by

which the total projected emissions

from all sources of a given pollutant are

less than the total emissions that would

satisfy the applicable requirement for

reasonable further progress, attainment,

or maintenance.

Standard means a national ambient

air quality standard.

Transit is mass transportation by bus,

rail, or other conveyance which

provides general or special service to

the public on a regular and continuing

basis. It does not include school buses

or charter or sightseeing services.

Transit project is an undertaking to

implement or modify a transit facility or

transit-related program; purchase transit

vehicles or equipment; or provide

financial assistance for transit

operations. It does not include actions

that are solely within the jurisdiction of

local transit agencies, such as changes

in routes, schedules, or fares. It may

consist of several phases. For analytical

purposes, it must be defined inclusively

enough to:

(1) Connect logical termini and be of

sufficient length to address

environmental matters on a broad scope;

(2) Have independent utility or

independent significance, i.e., be a

reasonable expenditure even if no

additional transportation improvements

in the area are made; and

(3) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Transportation control measure

(TCM) is any measure that is specifically

identified and committed to in the

applicable implementation plan that is

either one of the types listed in section

108 of the CAA, or any other measure

for the purpose of reducing emissions or

concentrations of air pollutants from

transportation sources by reducing

vehicle use or changing traffic flow or

congestion conditions. Notwithstanding

the first sentence of this definition,

vehicle technology-based, fuel-based,

and maintenance-based measures which

control the emissions from vehicles

under fixed traffic conditions are not

TCMs for the purposes of this subpart.

Transportation improvement program

(TIP) means a staged, multiyear,

intermodal program of transportation

projects covering a metropolitan

planning area which is consistent with

the metropolitan transportation plan,

and developed pursuant to 23 CFR part

450.

Transportation plan means the

official intermodal metropolitan

transportation plan that is developed

through the metropolitan planning

process for the metropolitan planning

area, developed pursuant to 23 CFR part

450.

Transportation project is a highway

project or a transit project.

Written commitment for the purposes

of this subpart means a written

commitment that includes a description

of the action to be taken; a schedule for

the completion of the action; a

demonstration that funding necessary to

implement the action has been

authorized by the appropriating or

authorizing body; and an

acknowledgment that the commitment

is an enforceable obligation under the

applicable implementation plan.

§ 93.102 Applicability.

(a) Action applicability.

(1) Except as provided for in

paragraph (c) of this section or § 93.126,

conformity determinations are required

for:

(i) The adoption, acceptance, approval

or support of transportation plans and

transportation plan amendments

developed pursuant to 23 CFR part 450

or 49 CFR part 613 by an MPO or DOT;

(ii) The adoption, acceptance,

approval or support of TIPs and TIP

amendments developed pursuant to 23

CFR part 450 or 49 CFR part 613 by an

MPO or DOT; and

(iii) The approval, funding, or

implementation of FHWA/FTA projects.

(2) Conformity determinations are not

required under this subpart for

individual projects which are not

FHWA/FTA projects. However, § 93.121

applies to such projects if they are

regionally significant.

(b) Geographic applicability. The

provisions of this subpart shall apply in

all nonattainment and maintenance

areas for transportation-related criteria

pollutants for which the area is

designated nonattainment or has a

maintenance plan.

(1) The provisions of this subpart

apply with respect to emissions of the

following criteria pollutants: ozone,

carbon monoxide (CO), nitrogen dioxide
43804 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

(NO2), and particles with an

aerodynamic diameter less than or equal

to a nominal 10 micrometers (PM10).

(2) The provisions of this subpart

apply with respect to emissions of the

following precursor pollutants:

(i) Volatile organic compounds (VOC)

and nitrogen oxides (NOx) in ozone

areas;

(ii) NOx in NO2 areas; and

(iii) VOC, NOx, and PM10 in PM10

areas if the EPA Regional Administrator

or the director of the State air agency

has made a finding that transportationrelated precursor emissions within the

nonattainment area are a significant

contributor to the PM10 nonattainment

problem and has so notified the MPO

and DOT, or if the applicable

implementation plan (or

implementation plan submission)

establishes a budget for such emissions

as part of the reasonable further

progress, attainment or maintenance

strategy.

(3) The provisions of this subpart

apply to 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.

(c) Limitations. (1) Projects subject to

this subpart for which the NEPA process

and a conformity determination have

been completed by DOT may proceed

toward implementation without further

conformity determinations unless more

than three years have elapsed since the

most recent major step (NEPA process

completion; start of final design;

acquisition of a significant portion of

the right-of-way; or approval of the

plans, specifications and estimates)

occurred. All phases of such projects

which were considered in the

conformity determination are also

included, if those phases were for the

purpose of funding final design, rightof-way acquisition, construction, or any

combination of these phases.

(2) A new conformity determination

for the project will be required if there

is a significant change in project design

concept and scope, if a supplemental

environmental document for air quality

purposes is initiated, or if three years

have elapsed since the most recent

major step to advance the project

occurred.

(d) Grace period for new

nonattainment areas. For areas or

portions of areas which have been

designated attainment for either ozone,

CO, PM10 or NO2 since 1990 and are

subsequently redesignated to

nonattainment for any of these

pollutants, the provisions of this subpart

shall not apply for 12 months following

the date of final designation to

nonattainment for such pollutant.

§ 93.103 Priority.

When assisting or approving any

action with air quality-related

consequences, FHWA and FTA shall

give priority to the implementation of

those transportation portions of an

applicable implementation plan

prepared to attain and maintain the

NAAQS. This priority shall be

consistent with statutory requirements

for allocation of funds among States or

other jurisdictions.

§ 93.104 Frequency of conformity

determinations.

(a) Conformity determinations and

conformity redeterminations for

transportation plans, TIPs, and FHWA/

FTA projects must be made according to

the requirements of this section and the

applicable implementation plan.

(b) Frequency of conformity

determinations for transportation plans.

(1) Each new transportation plan must

be demonstrated to conform before the

transportation plan is approved by the

MPO or accepted by DOT.

(2) All transportation plan revisions

must be found to conform before the

transportation plan revisions are

approved by the MPO or accepted by

DOT, unless the revision merely adds or

deletes exempt projects listed in

§ 93.126 or § 93.127. The conformity

determination must be based on the

transportation plan and the revision

taken as a whole.

(3) The MPO and DOT must

determine the conformity of the

transportation plan no less frequently

than every three years. If more than

three years elapse after DOT’s

conformity determination without the

MPO and DOT determining conformity

of the transportation plan, the existing

conformity determination will lapse.

(c) Frequency of conformity

determinations for transportation

improvement programs. (1) A new TIP

must be demonstrated to conform before

the TIP is approved by the MPO or

accepted by DOT.

(2) A TIP amendment requires a new

conformity determination for the entire

TIP before the amendment is approved

by the MPO or accepted by DOT, unless

the amendment merely adds or deletes

exempt projects listed in § 93.126 or

§ 93.127.

(3) The MPO and DOT must

determine the conformity of the TIP no

less frequently than every three years. If

more than three years elapse after DOT’s

conformity determination without the

MPO and DOT determining conformity

of the TIP, the existing conformity

determination will lapse.

(4) After an MPO adopts a new or

revised transportation plan, conformity

of the TIP must be redetermined by the

MPO and DOT within six months from

the date of DOT’s conformity

determination for the transportation

plan, unless the new or revised plan

merely adds or deletes exempt projects

listed in §§ 93.126 and 93.127.

Otherwise, the existing conformity

determination for the TIP will lapse.

(d) Projects. FHWA/FTA projects

must be found to conform before they

are adopted, accepted, approved, or

funded. Conformity must be

redetermined for any FHWA/FTA

project if three years have elapsed since

the most recent major step to advance

the project (NEPA process completion;

start of final design; acquisition of a

significant portion of the right-of-way;

or approval of the plans, specifications

and estimates) occurred.

(e) Triggers for transportation plan

and TIP conformity determinations.

Conformity of existing transportation

plans and TIPs must be redetermined

within 18 months of the following, or

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:

(1) November 24, 1993;

(2) The date of the State’s initial

submission to EPA of each control

strategy implementation plan or

maintenance plan establishing a motor

vehicle emissions budget;

(3) EPA approval of a control strategy

implementation plan revision or

maintenance plan which establishes or

revises a motor vehicle emissions

budget;

(4) EPA approval of an

implementation plan revision that adds,

deletes, or changes TCMs; and

(5) EPA promulgation of an

implementation plan which establishes

or revises a motor vehicle emissions

budget or adds, deletes, or changes

TCMs.

§ 93.105 Consultation.

(a) General. The implementation plan

revision required under § 51.390 of this

chapter shall include procedures for

interagency consultation (Federal, State,

and local), resolution of conflicts, and

public consultation as described in

paragraphs (a) through (e) of this

section. Public consultation procedures

will be developed in accordance with

the requirements for public involvement

in 23 CFR part 450.
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43805

(1) The implementation plan revision

shall include procedures to be

undertaken by MPOs, State departments

of transportation, and DOT with State

and local air quality agencies and EPA

before making conformity

determinations, and by State and local

air agencies and EPA with MPOs, State

departments of transportation, and DOT

in developing applicable

implementation plans.

(2) Before EPA approves the

conformity implementation plan

revision required by § 51.390 of this

chapter, MPOs and State departments of

transportation must provide reasonable

opportunity for consultation with State

air agencies, local air quality and

transportation agencies, DOT, and EPA,

including consultation on the issues

described in paragraph (c)(1) of this

section, before making conformity

determinations.

(b) Interagency consultation

procedures: General factors. (1) States

shall provide well-defined consultation

procedures in the implementation plan

whereby representatives of the MPOs,

State and local air quality planning

agencies, State and local transportation

agencies, and other organizations with

responsibilities for developing,

submitting, or implementing provisions

of an implementation plan required by

the CAA must consult with each other

and with local or regional offices of

EPA, FHWA, and FTA on the

development of the implementation

plan, the transportation plan, the TIP,

and associated conformity

determinations.

(2) Interagency consultation

procedures shall include at a minimum

the following general factors and the

specific processes in paragraph (c) of

this section:

(i) The roles and responsibilities

assigned to each agency at each stage in

the implementation plan development

process and the transportation planning

process, including technical meetings;

(ii) The organizational level of regular

consultation;

(iii) A process for circulating (or

providing ready access to) draft

documents and supporting materials for

comment before formal adoption or

publication;

(iv) The frequency of, or process for

convening, consultation meetings and

responsibilities for establishing meeting

agendas;

(v) A process for responding to the

significant comments of involved

agencies; and

(vi) A process for the development of

a list of the TCMs which are in the

applicable implementation plan.

(c) Interagency consultation

procedures: Specific processes.

Interagency consultation procedures

shall also include the following specific

processes:

(1) A process involving the MPO,

State and local air quality planning

agencies, State and local transportation

agencies, EPA, and DOT for the

following:

(i) Evaluating and choosing a model

(or models) and associated methods and

assumptions to be used in hot-spot

analyses and regional emissions

analyses;

(ii) Determining which minor arterials

and other transportation projects should

be considered ‘‘regionally significant’’

for the purposes of regional emissions

analysis (in addition to those

functionally classified as principal

arterial or higher or fixed guideway

systems or extensions that offer an

alternative to regional highway travel),

and which projects should be

considered to have a significant change

in design concept and scope from the

transportation plan or TIP;

(iii) Evaluating whether projects

otherwise exempted from meeting the

requirements of this subpart (see

§§ 93.126 and 93.127) should be treated

as non-exempt in cases where potential

adverse emissions impacts may exist for

any reason;

(iv) Making a determination, as

required by § 93.113(c)(1), whether past

obstacles to implementation of TCMs

which are behind the schedule

established in the applicable

implementation plan have been

identified and are being overcome, and

whether State and local agencies with

influence over approvals or funding for

TCMs are giving maximum priority to

approval or funding for TCMs. This

process shall also consider whether

delays in TCM implementation

necessitate revisions to the applicable

implementation plan to remove TCMs

or substitute TCMs or other emission

reduction measures;

(v) Identifying, as required by

§ 93.123(b), projects located at sites in

PM10 nonattainment areas which have

vehicle and roadway emission and

dispersion characteristics which are

essentially identical to those at sites

which have violations verified by

monitoring, and therefore require

quantitative PM10 hot-spot analysis;

(vi) Notification of transportation plan

or TIP revisions or amendments which

merely add or delete exempt projects

listed in § 93.126 or § 93.127; and

(vii) Choosing conformity tests and

methodologies for isolated rural

nonattainment and maintenance areas,

as required by § 93.109(g)(2)(iii).

(2) A process involving the MPO and

State and local air quality planning

agencies and transportation agencies for

the following:

(i) Evaluating events which will

trigger new conformity determinations

in addition to those triggering events

established in § 93.104; and

(ii) Consulting on emissions analysis

for transportation activities which cross

the borders of MPOs or nonattainment

areas or air basins.

(3) Where the metropolitan planning

area does not include the entire

nonattainment or maintenance area, a

process involving the MPO and the

State department of transportation for

cooperative planning and analysis for

purposes of determining conformity of

all projects outside the metropolitan

area and within the nonattainment or

maintenance area.

(4) A process to ensure that plans for

construction of regionally significant

projects which are not FHWA/FTA

projects (including projects for which

alternative locations, design concept

and scope, or the no-build option are

still being considered), including those

by recipients of funds designated under

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

Laws, are disclosed to the MPO on a

regular basis, and to ensure that any

changes to those plans are immediately

disclosed.

(5) A process involving the MPO and

other recipients of funds designated

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

Transit Laws for assuming the location

and design concept and scope of

projects which are disclosed to the MPO

as required by paragraph (c)(4) of this

section but whose sponsors have not yet

decided these features, in sufficient

detail to perform the regional emissions

analysis according to the requirements

of § 93.122.

(6) A process for consulting on the

design, schedule, and funding of

research and data collection efforts and

regional transportation model

development by the MPO (e.g.,

household/ travel transportation

surveys).

(7) A process for providing final

documents (including applicable

implementation plans and

implementation plan revisions) and

supporting information to each agency

after approval or adoption. This process

is applicable to all agencies described in

paragraph (a)(1) of this section,

including Federal agencies.

(d) Resolving conflicts. Conflicts

among State agencies or between State

agencies and an MPO shall be escalated

to the Governor if they cannot be

resolved by the heads of the involved

agencies. The State air agency has 14
43806 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

calendar days to appeal to the Governor

after the State DOT or MPO has notified

the State air agency head of the

resolution of his or her comments. The

implementation plan revision required

by § 51.390 of this chapter shall define

the procedures for starting the 14-day

clock. If the State air agency appeals to

the Governor, the final conformity

determination must have the

concurrence of the Governor. If the State

air agency does not appeal to the

Governor within 14 days, the MPO or

State department of transportation may

proceed with the final conformity

determination. The Governor may

delegate his or her role in this process,

but not to the head or staff of the State

or local air agency, State department of

transportation, State transportation

commission or board, or an MPO.

(e) Public consultation procedures.

Affected agencies making conformity

determinations on transportation plans,

programs, and projects shall establish a

proactive public involvement process

which provides opportunity for public

review and comment by, at a minimum,

providing reasonable public access to

technical and policy information

considered by the agency at the

beginning of the public comment period

and prior to taking formal action on a

conformity determination for all

transportation plans and TIPs,

consistent with these requirements and

those of 23 CFR 450.316(b). Any charges

imposed for public inspection and

copying should be consistent with the

fee schedule contained in 49 CFR 7.95.

In addition, these agencies must

specifically address in writing all public

comments that known plans for a

regionally significant project which is

not receiving FHWA or FTA funding or

approval have not been properly

reflected in the emissions analysis

supporting a proposed conformity

finding for a transportation plan or TIP.

These agencies shall also provide

opportunity for public involvement in

conformity determinations for projects

where otherwise required by law.

§ 93.106 Content of transportation plans.

(a) Transportation plans adopted after

January 1, 1997 in serious, severe, or

extreme ozone nonattainment areas and

in serious CO nonattainment areas. If

the metropolitan planning area contains

an urbanized area population greater

than 200,000, the transportation plan

must specifically describe the

transportation system envisioned for

certain future years which shall be

called horizon years.

(1) The agency or organization

developing the transportation plan may

choose any years to be horizon years,

subject to the following restrictions:

(i) Horizon years may be no more than

10 years apart;

(ii) The first horizon year may be no

more than 10 years from the base year

used to validate the transportation

demand planning model;

(iii) If the attainment year is in the

time span of the transportation plan, the

attainment year must be a horizon year;

and

(iv) The last horizon year must be the

last year of the transportation plan’s

forecast period.

(2) For these horizon years:

(i) The transportation plan shall

quantify and document the

demographic and employment factors

influencing expected transportation

demand, including land use forecasts, in

accordance with implementation plan

provisions and the consultation

requirements specified by § 93.105;

(ii) The highway and transit system

shall be described in terms of the

regionally significant additions or

modifications to the existing

transportation network which the

transportation plan envisions to be

operational in the horizon years.

Additions and modifications to the

highway network shall be sufficiently

identified to indicate intersections with

existing regionally significant facilities,

and to determine their effect on route

options between transportation analysis

zones. Each added or modified highway

segment shall also be sufficiently

identified in terms of its design concept

and design scope to allow modeling of

travel times under various traffic

volumes, consistent with the modeling

methods for area-wide transportation

analysis in use by the MPO. Transit

facilities, equipment, and services

envisioned for the future shall be

identified in terms of design concept,

design scope, and operating policies

that are sufficient for modeling of their

transit ridership. Additions and

modifications to the transportation

network shall be described sufficiently

to show that there is a reasonable

relationship between expected land use

and the envisioned transportation

system; and

(iii) Other future transportation

policies, requirements, services, and

activities, including intermodal

activities, shall be described.

(b) Moderate areas reclassified to

serious. Ozone or CO nonattainment

areas which are reclassified from

moderate to serious and have an

urbanized population greater than

200,000 must meet the requirements of

paragraph (a) of this section within two

years from the date of reclassification.

(c) Transportation plans for other

areas. Transportation plans for other

areas must meet the requirements of

paragraph (a) of this section at least to

the extent it has been the previous

practice of the MPO to prepare plans

which meet those requirements.

Otherwise, the transportation system

envisioned for the future must be

sufficiently described within the

transportation plans so that a

conformity determination can be made

according to the criteria and procedures

of §§ 93.109 through 93.119.

(d) Savings. The requirements of this

section supplement other requirements

of applicable law or regulation

governing the format or content of

transportation plans.

§ 93.107 Relationship of transportation

plan and TIP conformity with the NEPA

process.

The degree of specificity required in

the transportation plan and the specific

travel network assumed for air quality

modeling do not preclude the

consideration of alternatives in the

NEPA process or other project

development studies. Should the NEPA

process result in a project with design

concept and scope significantly

different from that in the transportation

plan or TIP, the project must meet the

criteria in §§ 93.109 through 93.119 for

projects not from a TIP before NEPA

process completion.

§ 93.108 Fiscal constraints for

transportation plans and TIPs.

Transportation plans and TIPs must

be fiscally constrained consistent with

DOT’s metropolitan planning

regulations at 23 CFR part 450 in order

to be found in conformity.

§ 93.109 Criteria and procedures for

determining conformity of transportation

plans, programs, and projects: General.

(a) In order for each transportation

plan, program, and FHWA/FTA project

to be found to conform, the MPO and

DOT must demonstrate that the

applicable criteria and procedures in

this subpart are satisfied, and the MPO

and DOT must comply with all

applicable conformity requirements of

implementation plans and of court

orders for the area which pertain

specifically to conformity. The criteria

for making conformity determinations

differ based on the action under review

(transportation plans, TIPs, and FHWA/

FTA projects), the relevant pollutant(s),

and the status of the implementation

plan.

(b) Table 1 in this paragraph indicates

the criteria and procedures in §§ 93.110

through 93.119 which apply for

transportation plans, TIPs, and FHWA/
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43807

FTA projects. Paragraphs (c) through (f)

of this section explain when the budget,

emission reduction, and hot spot tests

are required for each pollutant.

Paragraph (g) of this section addresses

isolated rural nonattainment and

maintenance areas. Table 1 follows:

TABLE 1.—CONFORMITY CRITERIA

All Actions at

all times:

§ 93.110 Latest planning assumptions.

§ 93.111 Latest emissions model.

§ 93.112 Consultation.

Transportation Plan:

§ 93.113(b) TCMs.

§ 93.118 or

§ 93.119

Emissions budget or Emission

reduction.

TIP:

§ 93.113(c) TCMs.

§ 93.118 or

§ 93.119

Emissions budget or Emission

reduction.

Project (From

a Conforming Plan

and TIP):

§ 93.114 Currently conforming plan and

TIP.

§ 93.115 Project from a conforming

plan and TIP.

§ 93.116 CO and PM10 hot spots.

§ 93.117 PM10 control measures.

Project (Not

From a

Conforming

Plan and

TIP):

§ 93.113(d) TCMs.

§ 93.114 Currently conforming plan and

TIP.

§ 93.116 CO and PM10 hot spots.

§ 93.117 PM10 control measures.

§ 93.118 or

§ 93.119

Emissions budget or Emission

reduction.

(c) Ozone nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b)

of this section that are required to be

satisfied at all times, in ozone

nonattainment and maintenance areas

conformity determinations must include

a demonstration that the budget and/or

emission reduction tests are satisfied as

described in the following:

(1) In ozone nonattainment and

maintenance areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(2) In ozone nonattainment areas that

are required to submit a control strategy

implementation plan revision (usually

moderate and above areas), the emission

reduction tests must be satisfied as

required by § 93.119 for conformity

determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions

budget adequate for transportation

conformity purposes; or

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan

inadequate for transportation

conformity purposes, and there is no

previously established motor vehicle

emissions budget in the approved

implementation plan or a previously

submitted control strategy

implementation plan revision or

maintenance plan.

(3) An ozone nonattainment area must

satisfy the emission reduction test for

NOX, as required by § 93.119, if the

implementation plan or plan

submission that is applicable for the

purposes of conformity determinations

is a 15% plan or Phase I attainment

demonstration that does not include a

motor vehicle emissions budget for

NOX. The implementation plan will be

considered to establish a motor vehicle

emissions budget for NOX if the

implementation plan or plan

submission contains an explicit NOX

motor vehicle emissions budget that is

intended to act as a ceiling on future

NOX emissions, and the NOX motor

vehicle emissions budget is a net

reduction from NOX emissions levels in

1990.

(4) Ozone nonattainment areas that

have not submitted a maintenance plan

and that are not required to submit a

control strategy implementation plan

revision (usually marginal and below

areas) must satisfy one of the following

requirements:

(i) The emission reduction tests

required by § 93.119; or

(ii) The State shall submit to EPA an

implementation plan revision that

contains motor vehicle emissions

budget(s) and an attainment

demonstration, and the budget test

required by § 93.118 must be satisfied

using the submitted motor vehicle

emissions budget(s) (as described in

paragraph (c)(1) of this section).

(5) Notwithstanding paragraphs (c)(1)

and (c)(2) of this section, moderate and

above ozone nonattainment areas with

three years of clean data that have not

submitted a maintenance plan and that

EPA has determined are not subject to

the Clean Air Act reasonable further

progress and attainment demonstration

requirements must satisfy one of the

following requirements:

(i) The emission reduction tests as

required by § 93.119;

(ii) The budget test as required by

§ 93.118, using the motor vehicle

emissions budgets in the submitted

control strategy implementation plan

(subject to the timing requirements of

paragraph (c)(1) of this section); or

(iii) The budget test as required by

§ 93.118, using the motor vehicle

emissions of ozone precursors in the

most recent year of clean data as motor

vehicle emissions budgets, if such

budgets are established by the EPA

rulemaking that determines that the area

has clean data.

(d) CO nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b)

of this section that are required to be

satisfied at all times, in CO

nonattainment and maintenance areas

conformity determinations must include

a demonstration that the hot spot,

budget and/or emission reduction tests

are satisfied as described in the

following:

(1) FHWA/FTA projects in CO

nonattainment or maintenance areas

must satisfy the hot spot test required by

§ 93.116(a) at all times. Until a CO

attainment demonstration or

maintenance plan is approved by EPA,

FHWA/FTA projects must also satisfy

the hot spot test required by § 93.116(b).

(2) In CO nonattainment and

maintenance areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(3) Except as provided in paragraph

(d)(4) of this section, in CO

nonattainment areas the emission

reduction tests must be satisfied as

required by § 93.119 for conformity

determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions
43808 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

budget adequate for transportation

conformity purposes; or

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan

inadequate for transportation

conformity purposes, and there is no

previously established motor vehicle

emissions budget in the approved

implementation plan or a previously

submitted control strategy

implementation plan revision or

maintenance plan.

(4) CO nonattainment areas that have

not submitted a maintenance plan and

that are not required to submit an

attainment demonstration (e.g.,

moderate CO areas with a design value

of 12.7 ppm or less or not classified CO

areas) must satisfy one of the following

requirements:

(i) The emission reduction tests

required by § 93.119; or

(ii) The State shall submit to EPA an

implementation plan revision that

contains motor vehicle emissions

budget(s) and an attainment

demonstration, and the budget test

required by § 93.118 must be satisfied

using the submitted motor vehicle

emissions budget(s) (as described in

paragraph (d)(2) of this section).

(e) PM10 nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b)

of this section that are required to be

satisfied at all times, in PM10

nonattainment and maintenance areas

conformity determinations must include

a demonstration that the hot spot,

budget and/or emission reduction tests

are satisfied as described in the

following:

(1) FHWA/FTA projects in PM10

nonattainment or maintenance areas

must satisfy the hot spot test required by

§ 93.116(a).

(2) In PM10 nonattainment and

maintenance areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(3) In PM10 nonattainment areas the

emission reduction tests must be

satisfied as required by § 93.119 for

conformity determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions

budget adequate for transportation

conformity purposes;

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan

inadequate for transportation

conformity purposes, and there is no

previously established motor vehicle

emissions budget in the approved

implementation plan or a previously

submitted control strategy

implementation plan revision or

maintenance plan; or

(iii) If the submitted implementation

plan revision is a demonstration of

impracticability under CAA section

189(a)(1)(B)(ii) and does not

demonstrate attainment.

(f) NO2 nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b)

of this section that are required to be

satisfied at all times, in NO2

nonattainment and maintenance areas

conformity determinations must include

a demonstration that the budget and/or

emission reduction tests are satisfied as

described in the following:

(1) In NO2 nonattainment and

maintenance areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(2) In NO2 nonattainment areas the

emission reduction tests must be

satisfied as required by § 93.119 for

conformity determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions

budget adequate for transportation

conformity purposes; or

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan

inadequate for transportation

conformity purposes, and there is no

previously established motor vehicle

emissions budget in the approved

implementation plan or a previously

submitted control strategy

implementation plan revision or

maintenance plan.

(g) Isolated rural nonattainment and

maintenance areas. This paragraph

applies to any nonattainment or

maintenance area (or portion thereof)

which does not have a metropolitan

transportation plan or TIP and whose

projects are not part of the emissions

analysis of any MPO’s metropolitan

transportation plan or TIP. This

paragraph does not apply to ‘‘donut’’

areas which are outside the

metropolitan planning boundary and

inside the nonattainment/maintenance

area boundary.

(1) FHWA/FTA projects in all isolated

rural nonattainment and maintenance

areas must satisfy the requirements of

§§ 93.110, 93.111, 93.112, 93.113(d),

93.116, and 93.117. Until EPA approves

the control strategy implementation

plan or maintenance plan for a rural CO

nonattainment or maintenance area,

FHWA/FTA projects must also satisfy

the requirements of § 93.116(b)

(‘‘Localized CO and PM10 violations (hot

spots)’’).

(2) Isolated rural nonattainment and

maintenance areas are subject to the

budget and/or emission reduction tests

as described in paragraphs (c) through

(f) of this section, with the following

modifications:

(i) When the requirements of

§§ 93.118 and 93.119 apply to isolated

rural nonattainment and maintenance

areas, references to ‘‘transportation

plan’’ or ‘‘TIP’’ should be taken to mean

those projects in the statewide

transportation plan or statewide TIP

which are in the rural nonattainment or

maintenance area.

(ii) In isolated rural nonattainment

and maintenance areas that are subject

to § 93.118, FHWA/FTA projects must

be consistent with motor vehicle

emissions budget(s) for the years in the

timeframe of the attainment

demonstration or maintenance plan. For

years after the attainment year (if a

maintenance plan has not been

submitted) or after the last year of the

maintenance plan, FHWA/FTA projects

must satisfy one of the following

requirements:

(A) § 93.118;

(B) § 93.119 (including regional

emissions analysis for NOX in all ozone

nonattainment and maintenance areas,

notwithstanding § 93.119(d)(2)); or

(C) As demonstrated by the air quality

dispersion model or other air quality

modeling technique used in the

attainment demonstration or

maintenance plan, the FHWA/FTA

project, in combination with all other
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43809

regionally significant projects expected

in the area in the timeframe of the

statewide transportation plan, must not

cause or contribute to any new violation

of any standard in any areas; 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. Control measures assumed in the

analysis must be enforceable.

(iii) The choice of requirements in

paragraph (g)(2)(ii) of this section and

the methodology used to meet the

requirements of paragraph (g)(2)(ii)(C) of

this section must be determined through

the interagency consultation process

required in § 93.105(c)(1)(vii) through

which the relevant recipients of title 23

U.S.C. or Federal Transit Laws funds,

the local air quality agency, the State air

quality agency, and the State

department of transportation should

reach consensus about the option and

methodology selected. EPA and DOT

must be consulted through this process

as well. In the event of unresolved

disputes, conflicts may be escalated to

the Governor consistent with the

procedure in § 93.105(d), which applies

for any State air agency comments on a

conformity determination.

§ 93.110 Criteria and procedures: Latest

planning assumptions.

(a) The conformity determination,

with respect to all other applicable

criteria in §§ 93.111 through 93.119,

must be based upon the most recent

planning assumptions in force at the

time of the conformity determination.

The conformity determination must

satisfy the requirements of paragraphs

(b) through (f) of this section.

(b) Assumptions must be derived from

the estimates of current and future

population, employment, travel, and

congestion most recently developed by

the MPO or other agency authorized to

make such estimates and approved by

the MPO. The conformity determination

must also be based on the latest

assumptions about current and future

background concentrations.

(c) The conformity determination for

each transportation plan and TIP must

discuss how transit operating policies

(including fares and service levels) and

assumed transit ridership have changed

since the previous conformity

determination.

(d) The conformity determination

must include reasonable assumptions

about transit service and increases in

transit fares and road and bridge tolls

over time.

(e) The conformity determination

must use the latest existing information

regarding the effectiveness of the TCMs

and other implementation plan

measures which have already been

implemented.

(f) Key assumptions shall be specified

and included in the draft documents

and supporting materials used for the

interagency and public consultation

required by § 93.105.

§ 93.111 Criteria and procedures: Latest

emissions model.

(a) The conformity determination

must be based on the latest emission

estimation model available. This

criterion is satisfied if the most current

version of the motor vehicle emissions

model specified by EPA for use in the

preparation or revision of

implementation plans in that State or

area is used for the conformity analysis.

Where EMFAC is the motor vehicle

emissions model used in preparing or

revising the applicable implementation

plan, new versions must be approved by

EPA before they are used in the

conformity analysis.

(b) EPA will consult with DOT to

establish a grace period following the

specification of any new model.

(1) The grace period will be no less

than three months and no more than 24

months after notice of availability is

published in the Federal Register.

(2) The length of the grace period will

depend on the degree of change in the

model and the scope of re-planning

likely to be necessary by MPOs in order

to assure conformity. If the grace period

will be longer than three months, EPA

will announce the appropriate grace

period in the Federal Register.

(c) Transportation plan and TIP

conformity analyses for which the

emissions analysis was begun during

the grace period or before the Federal

Register notice of availability of the

latest emission model may continue to

use the previous version of the model.

Conformity determinations for projects

may also be based on the previous

model if the analysis was begun during

the grace period or before the Federal

Register notice of availability, and if the

final environmental document for the

project is issued no more than three

years after the issuance of the draft

environmental document.

§ 93.112 Criteria and procedures:

Consultation.

Conformity must be determined

according to the consultation

procedures in this subpart and in the

applicable implementation plan, and

according to the public involvement

procedures established in compliance

with 23 CFR part 450. Until the

implementation plan revision required

by § 51.390 of this chapter is fully

approved by EPA, the conformity

determination must be made according

to § 93.105 (a)(2) and (e) and the

requirements of 23 CFR part 450.

§ 93.113 Criteria and procedures: Timely

implementation of TCMs.

(a) The transportation plan, TIP, or

any FHWA/FTA project which is not

from a conforming plan and TIP must

provide for the timely implementation

of TCMs from the applicable

implementation plan.

(b) For transportation plans, this

criterion is satisfied if the following two

conditions are met:

(1) The transportation plan, in

describing the envisioned future

transportation system, provides for the

timely completion or implementation of

all TCMs in the applicable

implementation plan which are eligible

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

Federal Transit Laws, consistent with

schedules included in the applicable

implementation plan.

(2) Nothing in the transportation plan

interferes with the implementation of

any TCM in the applicable

implementation plan.

(c) For TIPs, this criterion is satisfied

if the following conditions are met:

(1) An examination of the specific

steps and funding source(s) needed to

fully implement each TCM indicates

that TCMs which are eligible for

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

Federal Transit Laws are on or ahead of

the schedule established in the

applicable implementation plan, or, if

such TCMs are behind the schedule

established in the applicable

implementation plan, the MPO and

DOT have determined that past

obstacles to implementation of the

TCMs have been identified and have

been or are being overcome, and that all

State and local agencies with influence

over approvals or funding for TCMs are

giving maximum priority to approval or

funding of TCMs over other projects

within their control, including projects

in locations outside the nonattainment

or maintenance area.

(2) If TCMs in the applicable

implementation plan have previously

been programmed for Federal funding

but the funds have not been obligated

and the TCMs are behind the schedule

in the implementation plan, then the

TIP cannot be found to conform if the

funds intended for those TCMs are

reallocated to projects in the TIP other

than TCMs, or if there are no other

TCMs in the TIP, if the funds are

reallocated to projects in the TIP other

than projects which are eligible for

Federal funding intended for air quality
43810 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

improvement projects, e.g., the

Congestion Mitigation and Air Quality

Improvement Program.

(3) Nothing in the TIP may interfere

with the implementation of any TCM in

the applicable implementation plan.

(d) For FHWA/FTA projects which

are not from a conforming

transportation plan and TIP, this

criterion is satisfied if the project does

not interfere with the implementation of

any TCM in the applicable

implementation plan.

§ 93.114 Criteria and procedures:

Currently conforming transportation plan

and TIP.

There must be a currently conforming

transportation plan and currently

conforming TIP at the time of project

approval.

(a) Only one conforming

transportation plan or TIP may exist in

an area at any time; conformity

determinations of a previous

transportation plan or TIP expire once

the current plan or TIP is found to

conform by DOT. The conformity

determination on a transportation plan

or TIP will also lapse if conformity is

not determined according to the

frequency requirements specified in

§ 93.104.

(b) This criterion is not required to be

satisfied at the time of project approval

for a TCM specifically included in the

applicable implementation plan,

provided that all other relevant criteria

of this subpart are satisfied.

§ 93.115 Criteria and procedures: Projects

from a plan and TIP.

(a) The project must come from a

conforming plan and program. If this

criterion is not satisfied, the project

must satisfy all criteria in Table 1 of

§ 93.109(b) for a project not from a

conforming transportation plan and TIP.

A project is considered to be from a

conforming transportation plan if it

meets the requirements of paragraph (b)

of this section and from a conforming

program if it meets the requirements of

paragraph (c) of this section. Special

provisions for TCMs in an applicable

implementation plan are provided in

paragraph (d) of this section.

(b) A project is considered to be from

a conforming transportation plan if one

of the following conditions applies:

(1) For projects which are required to

be identified in the transportation plan

in order to satisfy § 93.106 (‘‘Content of

transportation plans’’), the project is

specifically included in the conforming

transportation plan and the project’s

design concept and scope have not

changed significantly from those which

were described in the transportation

plan, or in a manner which would

significantly impact use of the facility;

or

(2) For projects which are not

required to be specifically identified in

the transportation plan, the project is

identified in the conforming

transportation plan, or is consistent

with the policies and purpose of the

transportation plan and will not

interfere with other projects specifically

included in the transportation plan.

(c) A project is considered to be from

a conforming program if the following

conditions are met:

(1) The project is included in the

conforming TIP and the design concept

and scope of the project were adequate

at the time of the TIP conformity

determination to determine its

contribution to the TIP’s regional

emissions, and the project design

concept and scope have not changed

significantly from those which were

described in the TIP; and

(2) If the TIP describes a project

design concept and scope which

includes project-level emissions

mitigation or control measures, written

commitments to implement such

measures must be obtained from the

project sponsor and/or operator as

required by § 93.125(a) in order for the

project to be considered from a

conforming program. Any change in

these mitigation or control measures

that would significantly reduce their

effectiveness constitutes a change in the

design concept and scope of the project.

(d) TCMs. This criterion is not

required to be satisfied for TCMs

specifically included in an applicable

implementation plan.

§ 93.116 Criteria and procedures:

Localized CO and PM10 violations (hot

spots).

(a) This paragraph applies at all times.

The FHWA/FTA project must not cause

or contribute to any new localized CO

or PM10 violations or increase the

frequency or severity of any existing CO

or PM10 violations in CO and PM10

nonattainment and maintenance areas.

This criterion is satisfied if it is

demonstrated that no new local

violations will be created and the

severity or number of existing violations

will not be increased as a result of the

project. The demonstration must be

performed according to the consultation

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

methodology requirements of § 93.123.

(b) This paragraph applies for CO

nonattainment areas as described in

§ 93.109(d)(1). Each FHWA/FTA project

must eliminate or reduce the severity

and number of localized CO violations

in the area substantially affected by the

project (in CO nonattainment areas).

This criterion is satisfied with respect to

existing localized CO violations if it is

demonstrated that existing localized CO

violations will be eliminated or reduced

in severity and number as a result of the

project. The demonstration must be

performed according to the consultation

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

methodology requirements of § 93.123.

§ 93.117 Criteria and procedures:

Compliance with PM10 control measures.

The FHWA/FTA project must comply

with PM10 control measures in the

applicable implementation plan. This

criterion is satisfied if the project-level

conformity determination contains a

written commitment from the project

sponsor to include in the final plans,

specifications, and estimates for the

project those control measures (for the

purpose of limiting PM10 emissions

from the construction activities and/or

normal use and operation associated

with the project) that are contained in

the applicable implementation plan.

§ 93.118 Criteria and procedures: Motor

vehicle emissions budget.

(a) The transportation plan, TIP, and

project not from a conforming

transportation plan and TIP must be

consistent with the motor vehicle

emissions budget(s) in the applicable

implementation plan (or

implementation plan submission). This

criterion applies as described in

§ 93.109(c) through (g). This criterion is

satisfied if it is demonstrated that

emissions of the pollutants or pollutant

precursors described in paragraph (c) of

this section are less than or equal to the

motor vehicle emissions budget(s)

established in the applicable

implementation plan or implementation

plan submission.

(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 last year of the

transportation plan’s forecast period,

and for any intermediate years as

necessary so that the years for which

consistency is demonstrated are no

more than ten years apart, as follows:

(1) Until a maintenance plan is

submitted:

(i) Emissions in each year (such as

milestone years and the attainment year)

for which the control strategy

implementation plan revision

establishes motor vehicle emissions

budget(s) must be less than or equal to

that year’s motor vehicle emissions

budget(s); and
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43811

(ii) Emissions in years for which no

motor vehicle emissions budget(s) are

specifically established must be less

than or equal to the motor vehicle

emissions budget(s) established for the

most recent prior year. For example,

emissions in years after the attainment

year for which the implementation plan

does not establish a budget must be less

than or equal to the motor vehicle

emissions budget(s) for the attainment

year.

(2) When a maintenance plan has

been submitted:

(i) Emissions must be less than or

equal to the motor vehicle emissions

budget(s) established for the last year of

the maintenance plan, and for any other

years for which the maintenance plan

establishes motor vehicle emissions

budgets. If the maintenance plan does

not establish motor vehicle emissions

budgets for any years other than the last

year of the maintenance plan, the

demonstration of consistency with the

motor vehicle emissions budget(s) must

be accompanied by a qualitative finding

that there are no factors which would

cause or contribute to a new violation or

exacerbate an existing violation in the

years before the last year of the

maintenance plan. The interagency

consultation process required by

§ 93.105 shall determine what must be

considered in order to make such a

finding;

(ii) For years after the last year of the

maintenance plan, emissions must be

less than or equal to the maintenance

plan’s motor vehicle emissions

budget(s) for the last year of the

maintenance plan; and

(iii) If an approved control strategy

implementation plan has established

motor vehicle emissions budgets for

years in the timeframe of the

transportation plan, emissions in these

years must be less than or equal to the

control strategy implementation plan’s

motor vehicle emissions budget(s) for

these years.

(c) Consistency with the motor

vehicle emissions budget(s) must be

demonstrated for each pollutant or

pollutant precursor in § 93.102(b) for

which the area is in nonattainment or

maintenance and for which the

applicable implementation plan (or

implementation plan submission)

establishes a motor vehicle emissions

budget.

(d) Consistency with the motor

vehicle emissions budget(s) must be

demonstrated by including emissions

from the entire transportation system,

including all regionally significant

projects contained in the transportation

plan and all other regionally significant

highway and transit projects expected in

the nonattainment or maintenance area

in the timeframe of the transportation

plan.

(1) Consistency with the motor

vehicle emissions budget(s) must be

demonstrated with a regional emissions

analysis that meets the requirements of

§§ 93.122 and 93.105(c)(1)(i).

(2) The regional emissions analysis

may be performed for any years in the

timeframe of the transportation plan

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 the last year of the plan’s

forecast period. Emissions in years for

which consistency with motor vehicle

emissions budgets must be

demonstrated, as required in paragraph

(b) of this section, may be determined

by interpolating between the years for

which the regional emissions analysis is

performed.

(e) Motor vehicle emissions budgets in

submitted control strategy

implementation plan revisions and

submitted maintenance plans. (1)

Consistency with the motor vehicle

emissions budgets in submitted control

strategy implementation plan revisions

or maintenance plans must be

demonstrated if EPA has declared the

motor vehicle emissions budget(s)

adequate for transportation conformity

purposes, or beginning 45 days after the

control strategy implementation plan

revision or maintenance plan has been

submitted (unless EPA has declared the

motor vehicle emissions budget(s)

inadequate for transportation

conformity purposes). However,

submitted implementation plans do not

supersede the motor vehicle emissions

budgets in approved implementation

plans for the period of years addressed

by the approved implementation plan.

(2) If EPA has declared an

implementation plan submission’s

motor vehicle emissions budget(s)

inadequate for transportation

conformity purposes, the inadequate

budget(s) shall not be used to satisfy the

requirements of this section.

Consistency with the previously

established motor vehicle emissions

budget(s) must be demonstrated. If there

are no previous approved

implementation plans or

implementation plan submissions with

motor vehicle emissions budgets, the

emission reduction tests required by

§ 93.119 must be satisfied.

(3) If EPA declares an implementation

plan submission’s motor vehicle

emissions budget(s) inadequate for

transportation conformity purposes

more than 45 days after its submission

to EPA, and conformity of a

transportation plan or TIP has already

been determined by DOT using the

budget(s), the conformity determination

will remain valid. Projects included in

that transportation plan or TIP could

still satisfy §§ 93.114 and 93.115, which

require a currently conforming

transportation plan and TIP to be in

place at the time of a project’s

conformity determination and that

projects come from a conforming

transportation plan and TIP.

(4) EPA will not find a motor vehicle

emissions budget in a submitted control

strategy implementation plan revision

or maintenance plan to be adequate for

transportation conformity purposes

unless the following minimum criteria

are satisfied:

(i) The submitted control strategy

implementation plan revision or

maintenance plan was endorsed by the

Governor (or his or her designee) and

was subject to a State public hearing;

(ii) Before the control strategy

implementation plan or maintenance

plan was submitted to EPA,

consultation among federal, State, and

local agencies occurred; full

implementation plan documentation

was provided to EPA; and EPA’s stated

concerns, if any, were addressed;

(iii) The motor vehicle emissions

budget(s) is clearly identified and

precisely quantified;

(iv) The motor vehicle emissions

budget(s), when considered together

with all other emissions sources, is

consistent with applicable requirements

for reasonable further progress,

attainment, or maintenance (whichever

is relevant to the given implementation

plan submission);

(v) The motor vehicle emissions

budget(s) is consistent with and clearly

related to the emissions inventory and

the control measures in the submitted

control strategy implementation plan

revision or maintenance plan; and

(vi) Revisions to previously submitted

control strategy implementation plans

or maintenance plans explain and

document any changes to previously

submitted budgets and control

measures; impacts on point and area

source emissions; any changes to

established safety margins (see § 93.101

for definition); and reasons for the

changes (including the basis for any

changes related to emission factors or

estimates of vehicle miles traveled).

(5) Before determining the adequacy

of a submitted motor vehicle emissions

budget, EPA will review the State’s

compilation of public comments and

response to comments that are required

to be submitted with any

implementation plan. EPA will

document its consideration of such
43812 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

comments and responses in a letter to

the State indicating the adequacy of the

submitted motor vehicle emissions

budget.

(6) When the motor vehicle emissions

budget(s) used to satisfy the

requirements of this section are

established by an implementation plan

submittal that has not yet been

approved or disapproved by EPA, the

MPO and DOT’s conformity

determinations will be deemed to be a

statement that the MPO and DOT are

not aware of any information that would

indicate that emissions consistent with

the motor vehicle emissions budget will

cause or contribute to any new violation

of any standard; increase the frequency

or severity of any existing violation of

any standard; or delay timely attainment

of any standard or any required interim

emission reductions or other milestones.

§ 93.119 Criteria and procedures:

Emission reductions in areas without motor

vehicle emissions budgets.

(a) The transportation plan, TIP, and

project not from a conforming

transportation plan and TIP must

contribute to emissions reductions. This

criterion applies as described in

§ 93.109(c) through (g). It applies to the

net effect of the action (transportation

plan, TIP, or project not from a

conforming transportation plan and TIP)

on motor vehicle emissions from the

entire transportation system.

(b) This criterion may be met in

moderate and above ozone

nonattainment areas that are subject to

the reasonable further progress

requirements of CAA section 182(b)(1)

and in moderate with design value

greater than 12.7 ppm and serious CO

nonattainment areas if a regional

emissions analysis that satisfies the

requirements of § 93.122 and paragraphs

(e) through (h) of this section

demonstrates that for each analysis year

and for each of the pollutants described

in paragraph (d) of this section:

(1) The emissions predicted in the

‘‘Action’’ scenario are less than the

emissions predicted in the ‘‘Baseline’’

scenario, and this can be reasonably

expected to be true in the periods

between the analysis years; and

(2) The emissions predicted in the

‘‘Action’’ scenario are lower than 1990

emissions by any nonzero amount.

(c) This criterion may be met in PM10

and NO2 nonattainment areas; marginal

and below ozone nonattainment areas

and other ozone nonattainment areas

that are not subject to the reasonable

further progress requirements of CAA

section 182(b)(1); and moderate with

design value less than 12.7 ppm and

below CO nonattainment areas if a

regional emissions analysis that satisfies

the requirements of § 93.122 and

paragraphs (e) through (h) of this section

demonstrates that for each analysis year

and for each of the pollutants described

in paragraph (d) of this section, one of

the following requirements is met:

(1) The emissions predicted in the

‘‘Action’’ scenario are less than the

emissions predicted in the ‘‘Baseline’’

scenario, and this can be reasonably

expected to be true in the periods

between the analysis years; or

(2) The emissions predicted in the

‘‘Action’’ scenario are not greater than

baseline emissions. Baseline emissions

are those estimated to have occurred

during calendar year 1990, unless the

conformity implementation plan

revision required by § 51.390 of this

chapter defines the baseline emissions

for a PM10 area to be those occurring in

a different calendar year for which a

baseline emissions inventory was

developed for the purpose of developing

a control strategy implementation plan.

(d) Pollutants. The regional emissions

analysis must be performed for the

following pollutants:

(1) VOC in ozone areas;

(2) NOX in ozone areas, unless the

EPA Administrator determines that

additional reductions of NOX would not

contribute to attainment;

(3) CO in CO areas;

(4) PM10 in PM10 areas;

(5) Transportation-related precursors

of PM10 in PM10 nonattainment and

maintenance areas if the EPA Regional

Administrator or the director of the

State air agency has made a finding that

such precursor emissions from within

the area are a significant contributor to

the PM10 nonattainment problem and

has so notified the MPO and DOT; and

(6) NOX in NO2 areas.

(e) Analysis years. The regional

emissions analysis must be performed

for analysis years that are no more than

ten years apart. The first analysis year

must be no more than five years beyond

the year in which the conformity

determination is being made. The last

year of transportation plan’s forecast

period must also be an analysis year.

(f) ‘‘Baseline’’ scenario. The regional

emissions analysis required by

paragraphs (b) and (c) of this section

must estimate the emissions that would

result from the ‘‘Baseline’’ scenario in

each analysis year. The ‘‘Baseline’’

scenario must be defined for each of the

analysis years. The ‘‘Baseline’’ scenario

is the future transportation system that

will result from current programs,

including the following (except that

exempt projects listed in § 93.126 and

projects exempt from regional emissions

analysis as listed in § 93.127 need not be

explicitly considered):

(1) All in-place regionally significant

highway and transit facilities, services

and activities;

(2) All ongoing travel demand

management or transportation system

management activities; and

(3) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first year of the

previously conforming transportation

plan and/or TIP; or have completed the

NEPA process.

(g) ‘‘Action’’ scenario. The regional

emissions analysis required by

paragraphs (b) and (c) of this section

must estimate the emissions that would

result from the ‘‘Action’’ scenario in

each analysis year. The ‘‘Action’’

scenario must be defined for each of the

analysis years. The ‘‘Action’’ scenario is

the transportation system that would

result from the implementation of the

proposed action (transportation plan,

TIP, or project not from a conforming

transportation plan and TIP) and all

other expected regionally significant

projects in the nonattainment area. The

‘‘Action’’ scenario must include the

following (except that exempt projects

listed in § 93.126 and projects exempt

from regional emissions analysis as

listed in § 93.127 need not be explicitly

considered):

(1) All facilities, services, and

activities in the ‘‘Baseline’’ scenario;

(2) Completion of all TCMs and

regionally significant projects (including

facilities, services, and activities)

specifically identified in the proposed

transportation plan which will be

operational or in effect in the analysis

year, except that regulatory TCMs may

not be assumed to begin at a future time

unless the regulation is already adopted

by the enforcing jurisdiction or the TCM

is identified in the applicable

implementation plan;

(3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or

sponsoring agency since the last

conformity determination;

(4) The incremental effects of any

travel demand management programs

and transportation system management

activities known to the MPO, but not

included in the applicable

implementation plan or utilizing any
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43813

Federal funding or approval, which

were adopted and/or funded prior to the

date of the last conformity

determination, but which have been

modified since then to be more stringent

or effective;

(5) Completion of all expected

regionally significant highway and

transit projects which are not from a

conforming transportation plan and TIP;

and

(6) Completion of all expected

regionally significant non-FHWA/FTA

highway and transit projects that have

clear funding sources and commitments

leading toward their implementation

and completion by the analysis year.

(h) Projects not from a conforming

transportation plan and TIP. For the

regional emissions analysis required by

paragraphs (b) and (c) of this section, if

the project which is not from a

conforming transportation plan and TIP

is a modification of a project currently

in the plan or TIP, the ’Baseline’

scenario must include the project with

its original design concept and scope,

and the ’Action’ scenario must include

the project with its new design concept

and scope.

§ 93.120 Consequences of control strategy

implementation plan failures.

(a) Disapprovals. (1) If EPA

disapproves any submitted control

strategy implementation plan revision

(with or without a protective finding),

the conformity status of the

transportation plan and TIP shall lapse

on the date that highway sanctions as a

result of the disapproval are imposed on

the nonattainment area under section

179(b)(1) of the CAA. No new

transportation plan, TIP, or project may

be found to conform until another

control strategy implementation plan

revision fulfilling the same CAA

requirements is submitted and

conformity to this submission is

determined.

(2) If EPA disapproves a submitted

control strategy implementation plan

revision without making a protective

finding, then beginning 120 days after

such disapproval, only projects in the

first three years of the currently

conforming transportation plan and TIP

may be found to conform. This means

that beginning 120 days after

disapproval without a protective

finding, no transportation plan, TIP, or

project not in the first three years of the

currently conforming plan and TIP may

be found to conform until another

control strategy implementation plan

revision fulfilling the same CAA

requirements is submitted and

conformity to this submission is

determined. During the first 120 days

following EPA’s disapproval without a

protective finding, transportation plan,

TIP, and project conformity

determinations shall be made using the

motor vehicle emissions budget(s) in the

disapproved control strategy

implementation plan, unless another

control strategy implementation plan

revision has been submitted and its

motor vehicle emissions budget(s)

applies for transportation conformity

purposes, pursuant to § 93.109.

(3) In disapproving a control strategy

implementation plan revision, EPA

would give a protective finding where a

submitted plan contains adopted control

measures or written commitments to

adopt enforceable control measures that

fully satisfy the emissions reductions

requirements relevant to the statutory

provision for which the implementation

plan revision was submitted, such as

reasonable further progress or

attainment.

(b) Failure to submit and

incompleteness. In areas where EPA

notifies the State, MPO, and DOT of the

State’s failure to submit a control

strategy implementation plan or

submission of an incomplete control

strategy implementation plan revision

(either of which initiates the sanction

process under CAA sections 179 or

110(m)), the conformity status of the

transportation plan and TIP shall lapse

on the date that highway sanctions are

imposed on the nonattainment area for

such failure under section 179(b)(1) of

the CAA, unless the failure has been

remedied and acknowledged by a letter

from the EPA Regional Administrator.

(c) Federal implementation plans. If

EPA promulgates a Federal

implementation plan that contains

motor vehicle emissions budget(s) as a

result of a State failure, the conformity

lapse imposed by this section because of

that State failure is removed.

§ 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) Except as provided in paragraph

(b) of this section, no recipient of

Federal funds designated under title 23

U.S.C. or the Federal Transit Laws shall

adopt or approve a regionally significant

highway or transit project, regardless of

funding source, unless the recipient

finds that the requirements of one of the

following are met:

(1) The project was included in the

first three years of the most recently

conforming transportation plan and TIP

(or the conformity determination’s

regional emissions analyses), even if

conformity status is currently lapsed;

and the project’s design concept and

scope has not changed significantly

from those analyses; or

(2) There is a currently conforming

transportation plan and TIP, and a new

regional emissions analysis including

the project and the currently conforming

transportation plan and TIP

demonstrates that the transportation

plan and TIP would still conform if the

project were implemented (consistent

with the requirements of §§ 93.118 and/

or 93.119 for a project not from a

conforming transportation plan and

TIP).

(b) In isolated rural nonattainment

and maintenance areas subject to

§ 93.109(g), no recipient of Federal

funds designated under title 23 U.S.C.

or the Federal Transit Laws shall adopt

or approve a regionally significant

highway or transit project, regardless of

funding source, unless the recipient

finds that the requirements of one of the

following are met:

(1) The project was included in the

regional emissions analysis supporting

the most recent conformity

determination for the portion of the

statewide transportation plan and TIP

which are in the nonattainment or

maintenance area, and the project’s

design concept and scope has not

changed significantly; or

(2) A new regional emissions analysis

including the project and all other

regionally significant projects expected

in the nonattainment or maintenance

area demonstrates that those projects in

the statewide transportation plan and

statewide TIP which are in the

nonattainment or maintenance area

would still conform if the project were

implemented (consistent with the

requirements of §§ 93.118 and/or 93.119

for projects not from a conforming

transportation plan and TIP).

§ 93.122 Procedures for determining

regional transportation-related emissions.

(a) General requirements. (1) The

regional emissions analysis required by

§§ 93.118 and 93.119 for the

transportation plan, TIP, or project not

from a conforming plan and TIP must

include all regionally significant

projects expected in the nonattainment

or maintenance area. The analysis shall

include FHWA/FTA projects proposed

in the transportation plan and TIP and

all other regionally significant projects

which are disclosed to the MPO as

required by § 93.105. Projects which are

not regionally significant are not

required to be explicitly modeled, but

vehicle miles traveled (VMT) from such

projects must be estimated in

accordance with reasonable professional

practice. The effects of TCMs and

similar projects that are not regionally
43814 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

significant may also be estimated in

accordance with reasonable professional

practice.

(2) The emissions analysis may not

include for emissions reduction credit

any TCMs or other measures in the

applicable implementation plan which

have been delayed beyond the

scheduled date(s) until such time as

their implementation has been assured.

If the measure has been partially

implemented and it can be

demonstrated that it is providing

quantifiable emission reduction

benefits, the emissions analysis may

include that emissions reduction credit.

(3) Emissions reduction credit from

projects, programs, or activities which

require a regulatory action in order to be

implemented may not be included in

the emissions analysis unless:

(i) The regulatory action is already

adopted by the enforcing jurisdiction;

(ii) The project, program, or activity is

included in the applicable

implementation plan;

(iii) The control strategy

implementation plan submission or

maintenance plan submission that

establishes the motor vehicle emissions

budget(s) for the purposes of § 93.118

contains a written commitment to the

project, program, or activity by the

agency with authority to implement it;

or

(iv) EPA has approved an opt-in to a

Federally enforced program, EPA has

promulgated the program (if the control

program is a Federal responsibility,

such as vehicle tailpipe standards), or

the Clean Air Act requires the program

without need for individual State action

and without any discretionary authority

for EPA to set its stringency, delay its

effective date, or not implement the

program.

(4) Emissions reduction credit from

control measures that are not included

in the transportation plan and TIP and

that do not require a regulatory action

in order to be implemented may not be

included in the emissions analysis

unless the conformity determination

includes written commitments to

implementation from the appropriate

entities.

(i) Persons or entities voluntarily

committing to control measures must

comply with the obligations of such

commitments.

(ii) The conformity implementation

plan revision required in § 51.390 of this

chapter must provide that written

commitments to control measures that

are not included in the transportation

plan and TIP must be obtained prior to

a conformity determination and that

such commitments must be fulfilled.

(5) A regional emissions analysis for

the purpose of satisfying the

requirements of § 93.119 must make the

same assumptions in both the

‘‘Baseline’’ and ‘‘Action’’ scenarios

regarding control measures that are

external to the transportation system

itself, such as vehicle tailpipe or

evaporative emission standards, limits

on gasoline volatility, vehicle inspection

and maintenance programs, and

oxygenated or reformulated gasoline or

diesel fuel.

(6) The ambient temperatures used for

the regional emissions analysis shall be

consistent with those used to establish

the emissions budget in the applicable

implementation plan. All other factors,

for example the fraction of travel in a

hot stabilized engine mode, must be

consistent with the applicable

implementation plan, unless modified

after interagency consultation according

to § 93.105(c)(1)(i) to incorporate

additional or more geographically

specific information or represent a

logically estimated trend in such factors

beyond the period considered in the

applicable implementation plan.

(7) Reasonable methods shall be used

to estimate nonattainment or

maintenance area VMT on off-network

roadways within the urban

transportation planning area, and on

roadways outside the urban

transportation planning area.

(b) Regional emissions analysis in

serious, severe, and extreme ozone

nonattainment areas and serious CO

nonattainment areas must meet the

requirements of paragraphs (b)(1)

through (3) of this section if their

metropolitan planning area contains an

urbanized area population over 200,000.

(1) By January 1, 1997, estimates of

regional transportation-related

emissions used to support conformity

determinations must be made at a

minimum using network-based travel

models according to procedures and

methods that are available and in

practice and supported by current and

available documentation. These

procedures, methods, and practices are

available from DOT and will be updated

periodically. Agencies must discuss

these modeling procedures and

practices through the interagency

consultation process, as required by

§ 93.105(c)(1)(i). Network-based travel

models must at a minimum satisfy the

following requirements:

(i) Network-based travel models must

be validated against observed counts

(peak and off-peak, if possible) for a

base year that is not more than 10 years

prior to the date of the conformity

determination. Model forecasts must be

analyzed for reasonableness and

compared to historical trends and other

factors, and the results must be

documented;

(ii) Land use, population,

employment, and other network-based

travel model assumptions must be

documented and based on the best

available information;

(iii) Scenarios of land development

and use must be consistent with the

future transportation system alternatives

for which emissions are being

estimated. The distribution of

employment and residences for different

transportation options must be

reasonable;

(iv) A capacity-sensitive assignment

methodology must be used, and

emissions estimates must be based on a

methodology which differentiates

between peak and off-peak link volumes

and speeds and uses speeds based on

final assigned volumes;

(v) Zone-to-zone travel impedances

used to distribute trips between origin

and destination pairs must be in

reasonable agreement with the travel

times that are estimated from final

assigned traffic volumes. Where use of

transit currently is anticipated to be a

significant factor in satisfying

transportation demand, these times

should also be used for modeling mode

splits; and

(vi) Network-based travel models

must be reasonably sensitive to changes

in the time(s), cost(s), and other factors

affecting travel choices.

(2) Reasonable methods in accordance

with good practice must be used to

estimate traffic speeds and delays in a

manner that is sensitive to the estimated

volume of travel on each roadway

segment represented in the networkbased travel model.

(3) Highway Performance Monitoring

System (HPMS) estimates of vehicle

miles traveled (VMT) shall be

considered the primary measure of VMT

within the portion of the nonattainment

or maintenance area and for the

functional classes of roadways included

in HPMS, for urban areas which are

sampled on a separate urban area basis.

For areas with network-based travel

models, a factor (or factors) may be

developed to reconcile and calibrate the

network-based travel model estimates of

VMT in the base year of its validation

to the HPMS estimates for the same

period. These factors may then be

applied to model estimates of future

VMT. In this factoring process,

consideration will be given to

differences between HPMS and

network-based travel models, such as

differences in the facility coverage of the

HPMS and the modeled network

description. Locally developed count-
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43815

based programs and other departures

from these procedures are permitted

subject to the interagency consultation

procedures of § 93.105(c)(1)(i).

(c) In all areas not otherwise subject

to paragraph (b) of this section, regional

emissions analyses must use those

procedures described in paragraph (b) of

this section if the use of those

procedures has been the previous

practice of the MPO. Otherwise, areas

not subject to paragraph (b) of this

section may estimate regional emissions

using any appropriate methods that

account for VMT growth by, for

example, extrapolating historical VMT

or projecting future VMT by considering

growth in population and historical

growth trends for VMT per person.

These methods must also consider

future economic activity, transit

alternatives, and transportation system

policies.

(d) PM10 from construction-related

fugitive dust. (1) For areas in which the

implementation plan does not identify

construction-related fugitive PM10 as a

contributor to the nonattainment

problem, the fugitive PM10 emissions

associated with highway and transit

project construction are not required to

be considered in the regional emissions

analysis.

(2) In PM10 nonattainment and

maintenance areas with implementation

plans which identify constructionrelated fugitive PM10 as a contributor to

the nonattainment problem, the regional

PM10 emissions analysis shall consider

construction-related fugitive PM10 and

shall account for the level of

construction activity, the fugitive PM10

control measures in the applicable

implementation plan, and the dustproducing capacity of the proposed

activities.

(e) Reliance on previous regional

emissions analysis. (1) The TIP may be

demonstrated to satisfy the

requirements of §§ 93.118 (‘‘Motor

vehicle emissions budget’’) or 93.119

(‘‘Emission reductions in areas without

motor vehicle emissions budgets’’)

without new regional emissions analysis

if the regional emissions analysis

already performed for the plan also

applies to the TIP. This requires a

demonstration that:

(i) The TIP contains all projects which

must be started in the TIP’s timeframe

in order to achieve the highway and

transit system envisioned by the

transportation plan;

(ii) All TIP projects which are

regionally significant are included in

the transportation plan with design

concept and scope adequate to

determine their contribution to the

transportation plan’s regional emissions

at the time of the transportation plan’s

conformity determination; and

(iii) The design concept and scope of

each regionally significant project in the

TIP is not significantly different from

that described in the transportation

plan.

(2) A project which is not from a

conforming transportation plan and a

conforming TIP may be demonstrated to

satisfy the requirements of § 93.118 or

§ 93.119 without additional regional

emissions analysis if allocating funds to

the project will not delay the

implementation of projects in the

transportation plan or TIP which are

necessary to achieve the highway and

transit system envisioned by the

transportation plan, and if the project is

either:

(i) Not regionally significant; or

(ii) Included in the conforming

transportation plan (even if it is not

specifically included in the latest

conforming TIP) with design concept

and scope adequate to determine its

contribution to the transportation plan’s

regional emissions at the time of the

transportation plan’s conformity

determination, and the design concept

and scope of the project is not

significantly different from that

described in the transportation plan.

§ 93.123 Procedures for determining

localized CO and PM10 concentrations (hotspot analysis).

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

demonstrations required by § 93.116

(‘‘Localized CO and PM10 violations’’)

must be based on quantitative analysis

using the applicable air quality models,

data bases, and other requirements

specified in 40 CFR part 51, Appendix

W (Guideline on Air Quality Models).

These procedures shall be used in the

following cases, unless different

procedures developed through the

interagency consultation process

required in § 93.105 and approved by

the EPA Regional Administrator are

used:

(i) For projects in or affecting

locations, areas, or categories of sites

which are identified in the applicable

implementation plan as sites of

violation or possible violation;

(ii) For projects affecting intersections

that are at Level-of-Service D, E, or F, or

those that will change to Level-ofService D, E, or F because of increased

traffic volumes related to the project;

(iii) For any project affecting one or

more of the top three intersections in

the nonattainment or maintenance area

with highest traffic volumes, as

identified in the applicable

implementation plan; and

(iv) For any project affecting one or

more of the top three intersections in

the nonattainment or maintenance area

with the worst level of service, as

identified in the applicable

implementation plan.

(2) In cases other than those described

in paragraph (a)(1) of this section, the

demonstrations required by § 93.116

may be based on either:

(i) Quantitative methods that

represent reasonable and common

professional practice; or

(ii) A qualitative consideration of

local factors, if this can provide a clear

demonstration that the requirements of

§ 93.116 are met.

(b) PM10 hot-spot analysis. (1) The

hot-spot demonstration required by

§ 93.116 must be based on quantitative

analysis methods for the following types

of projects:

(i) Projects which are located at sites

at which violations have been verified

by monitoring;

(ii) Projects which are located at sites

which have vehicle and roadway

emission and dispersion characteristics

that are essentially identical to those of

sites with verified violations (including

sites near one at which a violation has

been monitored); and

(iii) New or expanded bus and rail

terminals and transfer points which

increase the number of diesel vehicles

congregating at a single location.

(2) Where quantitative analysis

methods are not required, the

demonstration required by § 93.116 may

be based on a qualitative consideration

of local factors.

(3) The identification of the sites

described in paragraph (b)(1)(i) and (ii)

of this section, and other cases where

quantitative methods are appropriate,

shall be determined through the

interagency consultation process

required in § 93.105. DOT may choose

to make a categorical conformity

determination on bus and rail terminals

or transfer points based on appropriate

modeling of various terminal sizes,

configurations, and activity levels.

(4) The requirements for quantitative

analysis contained in this paragraph (b)

will not take effect until EPA releases

modeling guidance on this subject and

announces in the Federal Register that

these requirements are in effect.

(c) General requirements. (1)

Estimated pollutant concentrations must

be based on the total emissions burden

which may result from the

implementation of the project, summed

together with future background

concentrations. The total concentration

must be estimated and analyzed at

appropriate receptor locations in the
43816 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

area substantially affected by the

project.

(2) Hot-spot analyses must include the

entire project, and may be performed

only after the major design features

which will significantly impact

concentrations have been identified.

The future background concentration

should be estimated by multiplying

current background by the ratio of

future to current traffic and the ratio of

future to current emission factors.

(3) Hot-spot analysis assumptions

must be consistent with those in the

regional emissions analysis for those

inputs which are required for both

analyses.

(4) PM10 or CO mitigation or control

measures shall be assumed in the hotspot analysis only where there are

written commitments from the project

sponsor and/or operator to implement

such measures, as required by

§ 93.125(a).

(5) CO and PM10 hot-spot analyses are

not required to consider constructionrelated activities which cause temporary

increases in emissions. Each site which

is affected by construction-related

activities shall be considered separately,

using established ‘‘Guideline’’ methods.

Temporary increases are defined as

those which occur only during the

construction phase and last five years or

less at any individual site.

§ 93.124 Using the motor vehicle

emissions budget in the applicable

implementation plan (or implementation

plan submission).

(a) In interpreting an applicable

implementation plan (or

implementation plan submission) with

respect to its motor vehicle emissions

budget(s), the MPO and DOT may not

infer additions to the budget(s) that are

not explicitly intended by the

implementation plan (or submission).

Unless the implementation plan

explicitly quantifies the amount by

which motor vehicle emissions could be

higher while still allowing a

demonstration of compliance with the

milestone, attainment, or maintenance

requirement and explicitly states an

intent that some or all of this additional

amount should be available to the MPO

and DOT in the emissions budget for

conformity purposes, the MPO may not

interpret the budget to be higher than

the implementation plan’s estimate of

future emissions. This applies in

particular to applicable implementation

plans (or submissions) which

demonstrate that after implementation

of control measures in the

implementation plan:

(1) Emissions from all sources will be

less than the total emissions that would

be consistent with a required

demonstration of an emissions

reduction milestone;

(2) Emissions from all sources will

result in achieving attainment prior to

the attainment deadline and/or ambient

concentrations in the attainment

deadline year will be lower than needed

to demonstrate attainment; or

(3) Emissions will be lower than

needed to provide for continued

maintenance.

(b) If an applicable implementation

plan submitted before November 24,

1993, demonstrates that emissions from

all sources will be less than the total

emissions that would be consistent with

attainment and quantifies that ‘‘safety

margin,’’ the State may submit an

implementation plan revision which

assigns some or all of this safety margin

to highway and transit mobile sources

for the purposes of conformity. Such an

implementation plan revision, once it is

endorsed by the Governor and has been

subject to a public hearing, may be used

for the purposes of transportation

conformity before it is approved by

EPA.

(c) A conformity demonstration shall

not trade emissions among budgets

which the applicable implementation

plan (or implementation plan

submission) allocates for different

pollutants or precursors, or among

budgets allocated to motor vehicles and

other sources, unless the

implementation plan establishes

appropriate mechanisms for such trades.

(d) If the applicable implementation

plan (or implementation plan

submission) estimates future emissions

by geographic subarea of the

nonattainment area, the MPO and DOT

are not required to consider this to

establish subarea budgets, unless the

applicable implementation plan (or

implementation plan submission)

explicitly indicates an intent to create

such subarea budgets for the purposes of

conformity.

(e) If a nonattainment area includes

more than one MPO, the

implementation plan may establish

motor vehicle emissions budgets for

each MPO, or else the MPOs must

collectively make a conformity

determination for the entire

nonattainment area.

§ 93.125 Enforceability of design concept

and scope and project-level mitigation and

control measures.

(a) Prior to determining that a

transportation project is in conformity,

the MPO, other recipient of funds

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

Federal Transit Laws, FHWA, or FTA

must obtain from the project sponsor

and/or operator written commitments to

implement in the construction of the

project and operation of the resulting

facility or service any project-level

mitigation or control measures which

are identified as conditions for NEPA

process completion with respect to local

PM10 or CO impacts. Before a

conformity determination is made,

written commitments must also be

obtained for project-level mitigation or

control measures which are conditions

for making conformity determinations

for a transportation plan or TIP and are

included in the project design concept

and scope which is used in the regional

emissions analysis required by

§§ 93.118 (‘‘Motor vehicle emissions

budget’’) and 93.119 (‘‘Emission

reductions in areas without motor

vehicle emissions budgets’’) or used in

the project-level hot-spot analysis

required by § 93.116.

(b) Project sponsors voluntarily

committing to mitigation measures to

facilitate positive conformity

determinations must comply with the

obligations of such commitments.

(c) The implementation plan revision

required in § 51.390 of this chapter shall

provide that written commitments to

mitigation measures must be obtained

prior to a positive conformity

determination, and that project sponsors

must comply with such commitments.

(d) If the MPO or project sponsor

believes the mitigation or control

measure is no longer necessary for

conformity, the project sponsor or

operator may be relieved of its

obligation to implement the mitigation

or control measure if it can demonstrate

that the applicable hot-spot

requirements of § 93.116, emission

budget requirements of § 93.118, and

emission reduction requirements of

§ 93.119 are satisfied without the

mitigation or control measure, and so

notifies the agencies involved in the

interagency consultation process

required under § 93.105. The MPO and

DOT must find that the transportation

plan and TIP still satisfy the applicable

requirements of §§ 93.118 and/or 93.119

and that the project still satisfies the

requirements of § 93.116, and therefore

that the conformity determinations for

the transportation plan, TIP, and project

are still valid. This finding is subject to

the applicable public consultation

requirements in § 93.105(e) for

conformity determinations for projects.

§ 93.126 Exempt projects.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 2 of this section are exempt from

the requirement to determine
Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations 43817

conformity. Such projects may proceed

toward implementation even in the

absence of a conforming transportation

plan and TIP. A particular action of the

type listed in Table 2 of this section is

not exempt if the MPO in consultation

with other agencies (see

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

FHWA (in the case of a highway project)

or the FTA (in the case of a transit

project) concur that it has potentially

adverse emissions impacts for any

reason. States and MPOs must ensure

that exempt projects do not interfere

with TCM implementation. Table 2

follows:

TABLE 2.—EXEMPT PROJECTS

Safety

Railroad/highway crossing.

Hazard elimination program.

Safer non-Federal-aid system roads.

Shoulder improvements.

Increasing sight distance.

Safety improvement program.

Traffic control devices and operating assistance other than signalization projects.

Railroad/highway crossing warning devices.

Guardrails, median barriers, crash cushions.

Pavement resurfacing and/or rehabilitation.

Pavement marking demonstration.

Emergency relief (23 U.S.C. 125).

Fencing.

Skid treatments.

Safety roadside rest areas.

Adding medians.

Truck climbing lanes outside the urbanized area.

Lighting improvements.

Widening narrow pavements or reconstructing bridges (no additional travel lanes).

Emergency truck pullovers.

Mass Transit

Operating assistance to transit agencies.

Purchase of support vehicles.

Rehabilitation of transit vehicles 1.

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

Purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.).

Construction or renovation of power, signal, and communications systems.

Construction of small passenger shelters and information kiosks.

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

and ancillary structures).

Rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-of-way.

Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet 1.

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

Air Quality

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

Bicycle and pedestrian facilities.

Other

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

Planning and technical studies.

Grants for training and research programs.

Planning activities conducted pursuant to titles 23 and 49 U.S.C.

Federal-aid systems revisions.

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

Noise attenuation.

Emergency or hardship advance land acquisitions (23 CFR 712.204(d)).

Acquisition of scenic easements.

Plantings, landscaping, etc.

Sign removal.

Directional and informational signs.

Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities).

Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational or capacity changes.

Note: 1In PM10 nonattainment or maintenance areas, such projects are exempt only if they are in compliance with control measures in the applicable implementation plan.

§ 93.127 Projects exempt from regional

emissions analyses.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 3 of this section are exempt from

regional emissions analysis

requirements. The local effects of these

projects with respect to CO or PM10

concentrations must be considered to

determine if a hot-spot analysis is

required prior to making a project-level

conformity determination. These

projects may then proceed to the project

development process even in the

absence of a conforming transportation

plan and TIP. A particular action of the

type listed in Table 3 of this section is

not exempt from regional emissions

analysis if the MPO in consultation with

other agencies (see § 93.105(c)(1)(iii)),

the EPA, and the FHWA (in the
43818 Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules and Regulations

case of a highway project) or the FTA

(in the case of a transit project) concur

that it has potential regional impacts for

any reason. Table 3 follows:

TABLE 3.—PROJECTS EXEMPT FROM REGIONAL EMISSIONS ANALYSES

Intersection channelization projects.

Intersection signalization projects at individual intersections.

Interchange reconfiguration projects.

Changes in vertical and horizontal alignment.

Truck size and weight inspection stations.

Bus terminals and transfer points.

§ 93.128 Traffic signal synchronization

projects.

Traffic signal synchronization projects

may be approved, funded, and

implemented without satisfying the

requirements of this subpart. However,

all subsequent regional emissions

analyses required by §§ 93.118 and

93.119 for transportation plans, TIPs, or

projects not from a conforming plan and

TIP must include such regionally

significant traffic signal synchronization

projects.

[FR Doc. 97–20968 Filed 8–14–97; 8:45 am]

BILLING CODE 6560–50–P