40004 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93 

[FRL–7774–6] 

RIN 2060–AL73; 2060–AI56 

Transportation Conformity Rule 

Amendments for the New 8-hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards and Miscellaneous 

Revisions for Existing Areas; 

Transportation Conformity Rule 

Amendments: Response to Court 

Decision and Additional Rule Changes

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today we (EPA) are amending 

the transportation conformity rule to 

finalize several provisions that were 

proposed last year. First, today’s final 

rule includes criteria and procedures for 

the new 8-hour ozone and fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS 

or ‘‘standards’’). Transportation 

conformity is required under Clean Air 

Act section 176(c) to ensure that 

federally supported highway and transit 

project activities are consistent with 

(‘‘conform to’’) the purpose of a state air 

quality implementation plan (SIP). We 

are conducting this rulemaking in part 

to revise the conformity regulation in 

the context of EPA’s broader strategies 

for implementing the new ozone and 

PM2.5 standards. 

The final rule also addresses a March 

2, 1999 ruling by the U.S. Court of 

Appeals for the District of Columbia 

Circuit (Environmental Defense Fund v. 

EPA, et al., 167 F. 3d 641, D.C. Cir. 

1999). This final rule incorporates into 

the transportation conformity rule the 

EPA and Department of Transportation 

(DOT) guidance that has been used in 

place of certain regulatory provisions of 

the rule since the court decision. 

DOT is EPA’s federal partner in 

implementing the transportation 

conformity regulation. We have 

consulted with DOT on the 

development of this rulemaking, and 

DOT concurs with this final rule. 

EPA notes that a supplemental notice 

of proposed rulemaking will be 

published in the near future to request 

additional comment on options related 

to PM2.5 and PM10 hot-spot 

requirements. EPA is also not finalizing 

at this time any requirements for 

addressing PM2.5 precursors in 

transportation conformity 

determinations for PM2.5 nonattainment 

and maintenance areas. EPA is 

considering the transportation 

conformity rule’s PM2.5 precursor 

requirements in the context of EPA’s 

broader PM2.5 implementation strategy. 

All of these issues will be addressed in 

a separate final rule to be issued before 

PM2.5 designations become effective.

EFFECTIVE DATE: August 2, 2004.

ADDRESSES: Materials relevant to this 

rulemaking for the November 5, 2003 

proposal (68 FR 62690) are in Public 

Docket I.D. No. OAR–2003–0049. 

Materials relevant to this rulemaking for 

the June 30, 2003 proposal (68 FR 

38974) are in Public Docket I.D. No. 

OAR–2003–0063. For more information 

about accessing information from the 

docket, see Section I.B. of the 

SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Meg 

Patulski, State Measures and Conformity 

Group, Transportation and Regional 

Programs Division, U.S. Environmental 

Protection Agency, 2000 Traverwood 

Road, Ann Arbor, MI 48105, 

patulski.meg@epa.gov, (734) 214–4842; 

Rudy Kapichak, State Measures and 

Conformity Group, Transportation and 

Regional Programs Division, U.S. 

Environmental Protection Agency, 2000 

Traverwood Road, Ann Arbor, MI 

48105, kapichak.rudolph@epa.gov, 

(734) 214–4574; or Laura Berry, State 

Measures and Conformity Group, 

Transportation and Regional Programs 

Division, U.S. Environmental Protection 

Agency, 2000 Traverwood Road, Ann 

Arbor, MI 48105, berry.laura@epa.gov, 

(734) 214–4858.

SUPPLEMENTARY INFORMATION: 

The contents of this preamble are 

listed in the following outline:

I. General Information 

I. Background on the Transportation 

Conformity Rule 

II. Conformity Grace Period and Revocation 

of the 1-hour Ozone Standard 

III. General Changes in Interim Emissions 

Tests 

IV. Regional Conformity Tests in 8-hour 

Ozone Areas That Do Not Have 1-hour 

Ozone SIPs 

V. Regional Conformity Tests in 8-hour 

Ozone Areas That Have 1-hour Ozone 

SIPs 

VI. Regional Conformity Tests in PM2.5 Areas 

VIII. Consideration of Direct PM2.5 and pm2.5

Precursors in Regional Emissions 

Analyses 

IX. Re-entrained Road Dust in PM2.5 Regional 

Emissions Analyses 

X. Construction-Related Fugitive Dust in 

PM2.5 Regional Emissions Analyses 

XI. Compliance with PM2.5 SIP Control 

Measures 

XII. PM2.5 Hot-spot Analyses 

XIII. PM10 Hot-spot Analyses 

XIV. Federal Projects 

XV. Using Motor Vehicle Emissions Budgets 

from Submitted SIPs for Transportation 

Conformity Determinations 

XVI. Non-federal Projects 

XVII. Conformity Consequences of Certain 

SIP Disapprovals 

XVIII. Safety Margins 

XIX. Streamlining the Frequency of 

Conformity Determinations 

XX. Latest Planning Assumptions 

XXI. Horizon Years for Hot-spot Analyses 

XXII. Relying on a Previous Regional 

Emissions Analysis 

XXIII. Miscellaneous Revisions 

XXIV. Comments Not Related to Rulemaking 

XXV. How Does Today’s Final Rule Affect 

Conformity SIPs? 

XXVI. Statutory and Executive Order 

Reviews

I. General Information 

A. Regulated Entities

Entities potentially regulated by the 

conformity rule are those that adopt, 

approve, or fund transportation plans, 

programs, or projects under title 23 

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

categories and entities affected by 

today’s action include:

Category Examples of regulated

entities 

Local government.Local transportation and air 

quality agencies, including metropolitan planning 

organizations (MPOs). 

State government.State transportation and air 

quality agencies. 

Federal government.Department of Transportation (Federal Highway 

Administration (FHWA) 

and Federal Transit Administration (FTA)). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this final rule. This table 

lists the types of entities of which EPA 

is aware that potentially could be 

regulated by the conformity rule. Other 

types of entities not listed in the table 

could also be regulated. To determine 

whether your organization is regulated 

by this action, you should carefully 

examine the applicability requirements 

in § 93.102 of the transportation 

conformity rule. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the 

persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. How Can I Get Copies of This 

Document? 

1. Docket. EPA has established official 

public dockets for today’s final rule. 

Materials relevant to this rulemaking for 

the November 5, 2003 proposal (68 FR 

62690) are in Public Docket I.D. No. 

OAR–2003–0049. Materials relevant to 

this rulemaking for the June 30, 2003 

proposal (68 FR 38974) are in Public 

Docket I.D. No. OAR–2003–0063. The 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40005

1May 14, 1999, Memorandum from Gay 

MacGregor, then-Director of the Regional and State 

Programs Division of EPA’s Office of Transportation 

and Air Quality, to Regional Air Division Directors, 

‘‘Conformity Guidance on Implementation of March 

2, 1999, Conformity Court Decision’’; January 2, 

2002, Memorandum from Mary E. Peters, 

Administrator, Federal Highway Administration 

(FHWA), and Jennifer L. Dorn, Administrator, 

Federal Transit Administration (FTA), to FHWA 

Division Administrators, Federal Lands Highway 

Division Engineers, and FTA Regional 

Administrators, ‘‘Revised Guidance for 

Implementing the March 1999 Circuit Court 

Decision Affecting Transportation Conformity’’; 

February 7, 2002, Notice, Issuance of Revised 

Guidance for Implementing the March 1999 Circuit 

Court Decision Affecting Transportation 

Conformity, Federal Register, 67 FR 5882.

2May 20, 2003, Memorandum from James M. 

Shrouds, Director, Office of Natural and Human 

Environment, FHWA, and Susan Borinsky, Director, 

Office of Human and Natural Environment, FTA, to 

FHWA Division Administrators, Federal Lands 

Highway Division Engineers, and FTA Regional 

Administrators, ‘‘INFORMATION: Clarification of 

Transportation Conformity Requirements for 

FHWA/FTA Projects Requiring Environmental 

Impact Statements.’’

3April 9, 2003, Memorandum from Jennifer L. 

Dorn, Administrator, FTA, to Regional 

Administrators, Regions 1–10, ‘‘INFORMATION: 

Revised FTA Procedures for a Conformity Lapse.’’

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the Air Docket in 

the EPA Docket Center, (EPA/DC) EPA 

West, Room B102, 1301 Constitution 

Ave., NW, Washington, DC. The Docket 

telephone number is (202) 566–1742. 

The EPA Docket Center Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. You may have to pay a 

reasonable fee for copying docket 

materials. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through EPA’s 

transportation conformity Web site at 

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

traqconf.htm. You may also access this 

document electronically under the 

Federal Register listings at http://

www.epa.gov/fedrgstr/.

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

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

to view public comments, access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. 

Although not all docket materials may 

be available electronically, you may still 

access any of the publicly available 

docket materials through the docket 

facility identified in Section I.B.1. Once 

in the EPA electronic docket system, 

select ‘‘search,’’ then key in the 

appropriate docket identification 

number. 

II. Background on the Transportation 

Conformity Rule 

A. What Is Transportation Conformity? 

Transportation conformity is required 

under Clean Air Act section 176(c) (42 

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

supported highway and transit project 

activities are consistent with (‘‘conform 

to’’) the purpose of the state air quality 

implementation plan (SIP). Conformity 

currently applies under EPA’s rules to 

areas that are designated nonattainment, 

and those redesignated to attainment 

after 1990 (‘‘maintenance areas’’ with 

plans developed under Clean Air Act 

section 175A) for the criteria pollutants: 

ozone, particulate matter with an 

aerodynamic diameter less than or equal 

to a nominal 10 micrometers (PM10), 

carbon monoxide (CO), and nitrogen 

dioxide (NO2). Today’s final rule also 

applies the conformity rule provisions 

in fine particulate matter (PM2.5) areas. 

Conformity to the purpose of the SIP 

means that transportation activities will 

not cause new air quality violations, 

worsen existing violations, or delay 

timely attainment of the relevant 

national ambient air quality standards 

(NAAQS or ‘‘standards’’). EPA’s 

transportation conformity rule 

establishes the criteria and procedures 

for determining whether transportation 

activities conform to the SIP. 

EPA first promulgated the 

transportation conformity rule on 

November 24, 1993 (58 FR 62188), and 

subsequently published a 

comprehensive set of amendments on 

August 15, 1997 (62 FR 43780) that 

clarified and streamlined language from 

the 1993 rule. EPA has made other 

smaller amendments to the rule both 

before and after the 1997 amendments. 

Today’s final rule includes provisions 

from two proposals that were published 

on June 30, 2003 and November 5, 2003, 

as described below. EPA has consulted 

with the Department of Transportation 

(DOT), our federal partner in 

implementing the transportation 

conformity regulation, in developing all 

aspects of this rulemaking, and DOT 

concurs with this final rule. 

B. What Did EPA Propose on June 30, 

2003 and Why? 

Today’s final rule incorporates 

existing federal guidance into the 

conformity regulation consistent with a 

previous court decision. A decision 

made on March 2, 1999, by the U.S. 

Court of Appeals for the District of 

Columbia Circuit affected several 

provisions of the August 15, 1997 

rulemaking (Environmental Defense 

Fund v. EPA, et al., 167 F. 3d 641, D.C. 

Cir. 1999; hereinafter referred to as the 

‘‘court decision’’). Specifically, the 

court’s ruling affected provisions that 

pertain to five aspects of the conformity 

rule, including:

(1) Federal approval and funding of 

transportation projects in areas without 

a currently conforming transportation 

plan and transportation improvement 

program (TIP); 

(2) Provisions allowing motor vehicle 

emissions budgets from submitted SIPs 

to be used in transportation conformity 

determinations before the SIP has been 

approved; 

(3) The adoption and approval of nonfederal transportation projects in areas 

without a currently conforming 

transportation plan and TIP; 

(4) The timing of conformity 

consequences following an EPA 

disapproval of a control strategy SIP 

(e.g., reasonable further progress SIPs 

and attainment demonstrations) without 

a protective finding; and, 

(5) The use of submitted safety 

margins in areas with approved SIPs 

that were submitted prior to November 

24, 1993. 

In response to the court decision, the 

EPA and DOT issued guidance 1 to 

address the provisions directly affected 

by the court decision. DOT also issued 

guidance on May 20, 2003, to clarify the 

conformity requirements as they relate 

to FHWA/FTA projects that require 

environmental impact statements.2 In 

addition, FTA issued guidance on April 

9, 2003, that further clarified which 

approvals are necessary for transit 

projects to proceed during a conformity 

lapse.3 EPA and DOT consulted on the 

development of all of the guidance 

documents that were issued to 

implement the court decision.

This final rule incorporates all of 

these guidance documents, as proposed 

in EPA’s June 30, 2003 rulemaking 

entitled, ‘‘Transportation Conformity 

Rule Amendments: Response to Court 

Decision and Additional Rule Changes’’

(68 FR 38974). EPA notes that although 

guidance implementing the court 

decision will still apply upon the 

effective date of this final rule, aspects 

of these guidance documents that are 

specifically addressed in this 

rulemaking will be governed by the 

40006 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

4 ‘‘Subpart 1 areas’’ are areas that are designated 

nonattainment under subpart 1 of part D of title 1 

of the Clean Air Act. EPA also referred to these 

areas as ‘‘basic’’ nonattainment areas in its April 30, 

2004 final designations rule for the 8-hour ozone 

standard (69 FR 23862).

federal conformity rules when they 

become effective. In addition to issues 

affected by the court, the June 30, 2003 

proposal and today’s final rule include 

several amendments to other provisions 

of the conformity regulations. These 

amendments are aimed at improving the 

implementation of the conformity 

program. 

The June 30, 2003 proposal and the 

comments received on that proposal 

serve as the basis for related provisions 

of today’s final rule. The public 

comment period for the proposed rule 

ended on July 30, 2003. EPA received 25 

sets of public comments on the 

proposed rule from MPOs; state and 

local transportation and air quality 

agencies; and, environmental, 

transportation and construction 

industry advocacy groups. Today’s final 

rule makes several minor changes to the 

June 30, 2003 proposed rule in response 

to these stakeholder comments. The 

changes from the June 30, 2003 proposal 

and EPA’s rationale for these changes 

are stated below. EPA has not, however, 

restated in this final rule background 

information and our complete rationale 

for many of the revisions to the 

conformity rule that are identical to the 

June 2003 proposal. The reader is 

referred to the proposal for such 

discussions. A copy of the proposal can 

be downloaded from EPA’s 

transportation conformity website listed 

in Section I.B.2. of today’s rulemaking.

C. What Did EPA Propose on November 

5, 2003 and Why? 

This final rule is also based on the 

November 5, 2003 proposed rule 

entitled, ‘‘Transportation Conformity 

Rule Amendments for the New 8-Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards and Miscellaneous 

Revisions for Existing Areas’’ (68 FR 

62690), and the comments received on 

that proposal. The public comment 

period for this proposal ended on 

December 22, 2003. EPA held one 

public hearing for this proposal on 

December 4, 2003. EPA received over 

110 sets of public comments on the 

proposed rule from MPOs, state and 

local transportation and air quality 

agencies, and environmental and 

transportation advocacy groups. EPA 

also received over 11,000 similar 

comments on the proposal from public 

citizens from a mass e-mail campaign. 

Today’s final rule promulgates proposed 

options and rule revisions in response 

to these stakeholder comments. This 

preamble explains EPA’s rationale for 

the selection of certain proposed 

options described in the November 2003 

proposal. A copy of the November 2003 

proposal can be downloaded from EPA’s 

transportation conformity website listed 

in Section I.B.2. of today’s rulemaking. 

EPA’s nonattainment area 

designations for the new 8-hour ozone 

standard are effective on June 15, 2004 

for most areas, and EPA anticipates 

designating areas for the new PM2.5 air 

quality standard in November or 

December 2004. EPA is conducting this 

rulemaking to provide clear guidance 

and rules for implementing conformity 

for these standards. Some of the 

conformity rule revisions in this 

rulemaking will provide more options 

and flexibility in demonstrating 

conformity. Other changes apply to 

existing 1-hour ozone, CO, PM10 and 

NO2 nonattainment and maintenance 

areas. 

EPA notes that today’s action does not 

finalize new transportation conformity 

requirements for PM2.5 precursors and 

PM2.5 hot-spot analyses, or make 

changes to existing PM10 hot-spot 

analysis requirements. EPA is 

considering requirements for addressing 

PM2.5 precursors in transportation 

conformity determinations in the 

context of EPA’s broader PM2.5

implementation strategy. EPA will soon 

be publishing a supplemental notice of 

proposed rulemaking to request 

additional comment on options related 

to PM2.5 and PM10 hot-spot 

requirements. PM2.5 precursors and 

PM2.5/PM10 hot-spot analysis 

requirements will be addressed in a 

separate final rule to be issued before 

PM2.5 designations become effective. 

See Sections VIII., XII., and XIII. for 

further information on these topics. 

Other changes to the conformity 

program could occur in the future 

through the reauthorization of the 

Transportation Equity Act for the 21st 

Century (TEA–21), which authorizes 

federal surface transportation programs. 

EPA will continue to monitor the 

proposed reauthorization proposals for 

their potential impact on the conformity 

regulation. If statutory amendments to 

the conformity program result from 

TEA–21 reauthorization, EPA would 

take appropriate action to address such 

changes in the future. 

D. What Parts of the Final Rule Apply 

to Me? 

The following table provides a 

roadmap for determining whether a 

specific final rule revision included in 

this rulemaking would apply in your 

area. This table illustrates which parts 

of the final rule are relevant for various 

pollutants and standards. Please note 

that Sections V.–VII. provide standalone descriptions of the regional 

emissions tests that will apply in PM2.5

areas and 8-hour ozone areas with and 

without existing 1-hour ozone SIPs. For 

example, if your area expects only to be 

designated nonattainment under the 

PM2.5 standard, you should read Section 

VII. but not Sections V. and VI. (for 8-

hour ozone areas). EPA believes that any 

redundancy between these sections is 

warranted to assist readers that may not 

need to read the entire final rule.4

Type of area Issue addressed in final rule Preamble 

section Regulatory section 

8-hour ozone .... Conformity grace period ..................................................................................................... III.A. § 93.102(d). 

Revocation of 1-hour ozone standard ................................................................................ III.B. Not applicable. 

General implementation of new standards ........................................................................ III.C. Not applicable. 

Early Action Compacts ....................................................................................................... III.D. Not applicable. 

Baseline year test ............................................................................................................... IV.B. § 93.119(b). 

Build/no-build test (marginal classification and subpart 1 areas 4) .................................... IV.C. § 93.119(b)(2); 

§ 93.119(g)(2). 

Regional conformity tests (moderate and above classifications) ....................................... IV.D. § 93.119(b)(1). 

Regional conformity tests (areas without 1-hour ozone budgets) ..................................... V. § 93.109(d). 

Regional conformity tests (areas with 1-hour ozone budgets) .......................................... VI. § 93.109(e). 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40007

Type of area Issue addressed in final rule Preamble 

section Regulatory section 

Transportation plan and modeling requirements (moderate and above classifications) ... XIV.D. § 93.106(b); 

§ 93.122(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

PM2.5 ................. Applicability ......................................................................................................................... III.A. § 93.102(b)(1). 

Conformity grace period ..................................................................................................... III.A. § 93.102(d). 

Baseline year test ............................................................................................................... IV.B. § 93.119(e). 

Build/no-build test ............................................................................................................... IV.C. § 93.119(e); 

§ 93.119(g)(2). 

Regional conformity tests ................................................................................................... VII. § 93.109(i). 

Precursors in regional analyses ......................................................................................... VIII. No regulatory text 

being finalized. 

Re-entrained road dust in regional analyses ..................................................................... IX. § 93.102(b)(3); 

§ 93.119(f). 

Construction-related fugitive dust in regional analyses ..................................................... X. § 93.122(f). 

Compliance with SIP control measures ............................................................................. XI. § 93.117. 

Hot-spots ............................................................................................................................ XII. No regulatory text 

being finalized. 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

1-hour ozone .... Revocation of 1-hour ozone standard ................................................................................ III.B. No proposed regulatory amendments. 

Build/no-build test (marginal and below classifications) .................................................... IV.C. § 93.119(b)(2); 

§ 93.119(g)(2). 

Regional conformity tests (moderate and above classifications) ....................................... IV.D. § 93.119(b)(1). 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Limited maintenance plans ................................................................................................. XIV.C. § 93.101; § 93.109(j); 

§ 93.121(c). 

Transportation plan and modeling requirements (moderate and above classifications) ... XIV.D. § 93.106(b); 

§ 93.122(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

Clarification to use of approved budgets in conformity ...................................................... XIV.G. § 93.109(c). 

PM10 .................. Build/no-build test ............................................................................................................... IV.C. § 93.119(d); 

§ 93.119(g)(2). 

Compliance with SIP control measures (Request for information only) ............................ XI. No proposed regulatory amendments. 

Hot-spots ............................................................................................................................ XIII. No regulatory text 

being finalized. 

Clarification to Precursors .................................................................................................. XIV.E. § 93.102(b)(2); 

§ 93.119(f)(5). 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Limited maintenance plans ................................................................................................. XIV.C. § 93.101; § 93.109(j); 

§ 93.121(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

Clarification to use of approved budgets in conformity ...................................................... XIV.G. § 93.109(g). 

CO .................... Build/no-build test (lower CO classifications) ..................................................................... IV.C. § 93.119(c); 

§ 93.119(g)(2). 

Regional conformity tests (higher CO classifications) ....................................................... IV.D. § 93.119(c)(1). 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Limited maintenance plans ................................................................................................. XIV.C. § 93.101; § 93.109(j); 

§ 93.121(c). 

Transportation plan and modeling requirements (moderate and serious classifications) XIV.D. § 93.106(b); 

§ 93.122(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

Clarification to use of approved budgets in conformity ...................................................... XIV.G. § 93.109(f). 

NO2 ................... Build/no-build test ............................................................................................................... IV.C. § 93.119(d); 

§ 93.119(g)(2). 

Definitions ........................................................................................................................... XIV.A. § 93.101. 

Insignificance ...................................................................................................................... XIV.B. § 93.109(k); 

§ 93.121(c). 

Non-federal projects (for isolated rural areas only) ........................................................... XIV.F. § 93.121(b)(1). 

Clarification to use of approved budgets in conformity ...................................................... XIV.G. § 93.109(h). 

40008 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

5As defined in § 93.101 of today’s final rule, 

donut areas are geographic areas outside a 

metropolitan planning area boundary, but inside 

the boundary of a nonattainment or maintenance 

area that contains any part of a metropolitan area(s). 

These areas are not isolated rural nonattainment 

and maintenance areas.

6As defined in § 93.101 of today’s final rule, 

isolated rural nonattainment and maintenance areas 

are areas that do not contain or are not part of any 

metropolitan planning area as designated under the 

transportation planning regulations. These areas are 

not donut areas.

E. Does This Final Rule Include the 

Entire Transportation Conformity 

Regulation? 

No. The regulatory text in this final 

rule is limited to changes to affected 

portions of the conformity rule. 

However, a complete version of the 

conformity rule is available to the 

public on our transportation conformity 

website listed in Section I.B.2. of this 

rulemaking. The complete version is 

intended to help reviewers understand 

today’s final rule in context with other 

existing rule sections that are not being 

changed. 

III. Conformity Grace Period and 

Revocation of the 1-hour Ozone 

Standard 

A. When Will Conformity Apply for the 

8-hour Ozone and PM2.5 Standards? 

1. Description of Final Rule 

Conformity applies one year after the 

effective date of EPA’s initial 

nonattainment designation for a given 

pollutant and standard. This one-year 

conformity grace period is provided by 

Clean Air Act section 176(c)(6) and 

§ 93.102(d) of the conformity regulation. 

This final rule adds PM2.5 to § 93.102(d) 

of the conformity rule even though the 

grace period is already available to all 

newly designated nonattainment areas 

as a matter of law. 

Since the 1-hour and 8-hour ozone 

standards are different NAAQS, every 

area that was designated nonattainment 

for the 8-hour ozone standard has a oneyear grace period before conformity 

applies for that standard even if the area 

was previously designated 

nonattainment for the 1-hour ozone 

standard. Areas subject to conformity 

for the 1-hour ozone standard continue 

to be subject to all applicable Clean Air 

Act requirements during the 1-year 

conformity grace period for the 8-hour 

ozone standard, as described in B. of 

this section. EPA designated areas for 

the 8-hour ozone standard on April 15, 

2004, and published the final 

designations rule on April 30, 2004 (69 

FR 23858). Designations for most of 

these 8-hour areas will be effective on 

June 15, 2004. Therefore, conformity for 

the 8-hour ozone standard will begin to 

apply on June 15, 2005 in most areas. 

When conformity is done for the 1-

hour standard during the grace period 

for the 8-hour standard, areas should 

consider whether demonstrating 

conformity for the 1-hour and 8-hour 

ozone standards at the same time is 

possible or advantageous. For example, 

if a conformity determination is made in 

September 2004 for a new or revised 

transportation plan and/or TIP, an area 

would demonstrate conformity for the 1-

hour ozone standard and may choose to 

address the 8-hour ozone standard at a 

later date near the end of the one-year 

grace period, if conformity analyses for 

the 8-hour standard are not yet 

completed. In contrast, if a conformity 

determination is made in January 2005 

for a new or revised plan/TIP, an area 

may be able to complete all the 

necessary work to demonstrate 

conformity for both ozone standards at 

that time. If no new or revised plan/TIP 

is required during the one-year grace 

period, conformity could be determined 

for the 8-hour standard without also 

making a conformity determination for 

the 1-hour standard. Whatever the case, 

a conformity determination for the 8-

hour standard must be in place on June 

15, 2005 for the plan and TIP, or an area 

will lapse. 

Areas should use the interagency 

consultation process to determine a 

schedule for conducting regional 

emissions analyses and demonstrating 

conformity for the 1-hour and 8-hour 

ozone standards during the one-year 

conformity grace period as appropriate. 

Areas can rely on similar analyses and 

other work for conformity 

determinations for existing and new 

standards, to the extent that such work 

meets applicable requirements. 

EPA plans to designate areas for PM2.5

by November or December of 2004. 

Similarly, every area that is designated 

nonattainment for the PM2.5 standard 

will have a one-year grace period from 

the effective date of designations before 

conformity applies for that standard. It 

is important to note that PM10 is a 

different pollutant than PM2.5, and 

today’s final rule does not affect the 

applicability and continued general 

implementation of conformity in PM10

nonattainment and maintenance areas.

EPA anticipates that some areas will 

be designated as nonattainment for both 

the 8-hour ozone and PM2.5 standards. 

In these areas, conformity for the 8-hour 

ozone standard will apply one year after 

the effective date of the area’s 8-hour 

ozone designation, while conformity for 

PM2.5 will apply one year after the 

effective date of the area’s PM2.5

designation. 

As described in the November 5, 2003 

proposal, if upon the expiration of the 

one-year grace period, a metropolitan 

area does not have a transportation plan 

and TIP that conform to the applicable 

standard in place, the conformity status 

of the area ‘‘lapses.’’ Likewise, within 

one year after the effective date of an 

area’s initial nonattainment designation, 

the existing and planned transportation 

network for any donut 5 portion of an 

area (as well as for the metropolitan 

portion of the area) must demonstrate 

conformity, or conformity of the 

metropolitan transportation plan and 

TIP will lapse, and the entire 

nonattainment area will be unable to 

obtain additional non-exempt project 

funding and approvals at that time. 

During a conformity lapse funding and 

approval of transportation projects are 

restricted and only limited types of 

projects can proceed (e.g., safety 

projects, project phases that were 

approved before the lapse).

The November 2003 proposal also 

stated that the one-year conformity 

grace period applies in isolated rural 

nonattainment areas.6 However, 

conformity determinations in isolated 

rural areas are required only when a 

non-exempt FHWA/FTA project needs 

funding or approval. Therefore, once the 

conformity grace period has expired, a 

conformity determination will only be 

required in such areas the next time a 

non-exempt project needs funding or 

approval.

For more information on the 

application of the conformity grace 

period in metropolitan, donut and 

isolated rural nonattainment areas, see 

the November 5, 2003 proposal to this 

final rule (68 FR 62695–62696). See 

Section III.C. below for guidance and 

EPA’s responses to comments regarding 

implementation of the one-year grace 

period and conformity determinations 

under the new standards. 

2. Rationale and Response to Comments 

EPA received a number of comments 

on the one-year conformity grace period 

and the transition from the 1-hour ozone 

standard to the 8-hour ozone standard. 

Most commenters supported the oneyear conformity grace period, with some 

commenters stating that the grace period 

makes sense and will provide state and 

local agencies with the time needed to 

prepare for conformity under the new 

standards. Another commenter 

supported the grace period as a means 

to prevent having to demonstrate 

conformity to two ozone standards 

simultaneously. 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40009

7 Information on 8-hour ozone nonattainment 

designations, including copies of EPA’s December 

2003 designation letters, can be accessed from 

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

glo/designations/index.htm.

8The National Transit Institute offers a course 

entitled, ‘‘Introduction to Transportation/Air 

Quality Conformity.’’ This course was developed by 

FTA, FHWA and EPA and is designed for federal, 

state and local agencies involved in the conformity 

process. In addition, the National Highway Institute 

offers a course entitled, ‘‘Estimating Regional 

Mobile Source Emissions.’’

9EPA and DOT jointly sponsored seven MOBILE6 

training courses across the country in 2002. The 

training materials for these courses are on EPA’s 

MOBILE6 website and can be downloaded at: http:/

/www.epa.gov/otaq/m6.htm. Other training 

materials prepared by EPA are also available on this 

website.

Some commenters, however, believed 

that the one-year grace period would not 

allow enough time for some areas to 

meet the conformity requirements. One 

of these commenters questioned 

whether a year would be enough time to 

implement the interagency consultation 

process in brand new nonattainment 

areas or in existing nonattainment and 

maintenance areas that change in size or 

complexity. A few other commenters 

argued that the one-year grace period 

does not provide adequate time for new 

MPOs to become familiar with the 

conformity process or for existing MPOs 

to complete technical documentation 

and the public and adoption processes 

in nonattainment counties that are not 

within the MPO’s jurisdiction (i.e., 

donut areas). 

To address these concerns, a few 

commenters suggested approaches for 

lengthening the conformity grace 

period. One commenter that was 

concerned about the lack of experience 

and resource burden on new and rural 

nonattainment areas requested that the 

grace period be extended to two years 

for these areas. Another commenter 

suggested that EPA provide a longer 60-

day effective date for nonattainment 

designations, effectively giving areas 

two additional months before the 

conformity requirements apply. 

EPA understands that some areas, 

including brand new metropolitan 

areas, donut areas, and complex 

nonattainment areas (e.g., areas with 

multiple states and/or multiple MPOs) 

may have additional challenges in 

conducting the conformity process. 

However, the Clean Air Act, as amended 

on October 27, 2000, specifically 

provides newly designated 

nonattainment areas with only a oneyear grace period, after which 

conformity applies as a matter of law 

under the statute. Therefore, we believe 

that the statutory language precludes 

EPA from extending the conformity 

grace period beyond one year for new 

nonattainment areas. We emphasize, 

however, that EPA issued letters to the 

states effectively notifying areas of their 

proposed 8-hour ozone nonattainment 

designation in December 2003 and that 

states submitted their recommendations 

for nonattainment areas based on 

monitored data, well before 

designations became effective.7 In 

addition, state and local agencies of 

potential nonattainment areas have been 

involved early on in the 8-hour 

designation process. These new ozone 

nonattainment areas have already had 

additional time ahead of the one-year 

grace period to begin developing 

consultation procedures, modeling tools 

and data collections efforts for 

implementing the conformity 

regulation. EPA anticipates that areas 

designated nonattainment under the 

PM2.5 standard will have similar 

advance notice of their pending 

designations, since state 

recommendations were due February 

15, 2004, and many areas already expect 

that they will be designated 

nonattainment for PM2.5.

The amount of time between the 

publication and effective dates of an 

action is established by EPA on a caseby-case basis for each rulemaking. We 

generally believe that the time needed 

for states to implement obligations for 

the NAAQS is fully considered in the 

statutory or regulatory provision 

establishing the compliance timeframe 

and that the effective date of the 

designations should not be used as a 

method for adjusting the compliance 

timeframes. In the context of 

promulgating the 8-hour ozone 

designations, EPA determined that it 

was appropriate to make the 

designations effective on June 15, 2004, 

approximately 45 days following the 

publication date of the designations. 

EPA will consider the appropriate 

effective date for PM2.5 designations at 

the time it promulgates those 

designations. 

EPA notes that Section III.C. of 

today’s final rule includes guidance on 

general and specific questions raised by 

commenters for implementing the new 

standards. In addition, EPA will release 

guidance on specific implementation 

issues that may arise in some of the 

different types of new nonattainment 

areas (e.g., multi-state and/or multiple 

MPO areas). We will provide this 

information in response to requests for 

clarification raised during the public 

comment period for this rulemaking. 

Newly designated nonattainment areas 

should also consult with their 

respective EPA regional and DOT 

division offices for additional guidance 

and assistance in meeting the 

conformity requirements within the 

one-year grace period. In addition, EPA 

and DOT will be conducting training 

sessions for the new standards 

conformity rulemaking in the near 

future that state and local agencies can 

attend; areas can also take advantage of 

existing EPA and DOT conformity 8 and 

emissions modeling 9 training that is 

currently available.

B. When Does Conformity Stop 

Applying for the 1-hour Ozone 

Standard? 

1. Description of Final Rule 

Conformity for the 1-hour ozone 

standard will no longer apply in 

existing 1-hour ozone nonattainment 

and maintenance areas once that 

standard and corresponding 

designations are revoked. Today’s final 

conformity rule and responses to 

comments with respect to this issue are 

consistent with EPA’s April 30, 2004, 8-

hour ozone implementation final rule 

that revokes the 1-hour standard one 

year after the effective date of EPA’s 8-

hour designations (69 FR 23951). 

Current 1-hour nonattainment and 

maintenance areas will continue to 

ensure that transportation activities 

conform to the existing 1-hour standard, 

including any applicable existing 

adequate or approved 1-hour SIP 

budgets, until that standard is revoked. 

When the 1-hour standard is revoked, 

conformity will no longer apply for 

either ozone standard in areas that are 

attaining the 8-hour ozone standard. 

Section 93.109(c) of today’s final rule 

addresses conformity requirements for 

the 1-hour ozone standard. See EPA’s 

April 30, 2004, 8-hour implementation 

final rule for more discussion on the 

revocation of the 1-hour ozone standard 

(69 FR 23951). 

2. Rationale and Response to Comments 

Many commenters supported the 

revocation of the 1-hour ozone standard 

at the time conformity applies for the 8-

hour ozone standard. Several 

commenters believed that requiring 

conformity for both ozone standards at 

the same time would be overly 

burdensome and confusing, and would 

significantly impact state and local 

resources and the transportation sector. 

These commenters supported a final 

rule that focused on attainment of the 8-

hour standard, rather than created 

duplicative conformity requirements for 

two ozone standards. One commenter 

also argued that requiring conformity for 

both ozone standards at the same time 

could undermine progress to achieve 

40010 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

10The concept of sovereign immunity specifies 

that the federal government can only be subjected 

to regulation to the extent it voluntarily agrees to 

become subject. With respect to conformity, in the 

Clean Air Act, Congress has agreed that the federal 

government should be subject only one year after 

designation in areas designated nonattainment or 

previously designated nonattainment and 

redesignated to attainment subject to a 175A 

maintenance plan. Thus, sovereign immunity 

prevents the mandatory application of conformity 

requirements either prior to a year after designation 

or after revocation with respect to a given air 

quality standard.

adequate emission reductions, since 

new nonattainment areas may have to 

develop different control strategies for 

attaining the 8-hour ozone standard. 

This commenter believed that such a 

result could leave nonattainment areas 

extremely vulnerable to litigation. Some 

commenters stated that EPA’s proposal 

is logical, since the 8-hour ozone 

standard is presumably a more stringent 

standard than the 1-hour standard.

However, other commenters believed 

EPA’s proposal to revoke the 1-hour 

standard is unlawful because they 

believed it would allow large increases 

in motor vehicle emissions and thus 

violate the statutory conformity tests. 

Other commenters stated that if the 1-

hour standard was revoked, areas would 

no longer have to meet the SIP motor 

vehicle emissions budgets (‘‘budgets’’) 

established for that standard. These 

commenters were concerned that 8-hour 

nonattainment areas that were 

nonattainment or maintenance for the 1-

hour standard would be able to 

determine conformity using less 

protective conformity tests, such as the 

build/no-build test, during the time 

period before new 8-hour SIP budgets 

are established. These commenters 

stated that not using existing 1-hour SIP 

budgets would lead to emissions 

increases that would later need to be 

offset by future controls for the 8-hour 

standard. Commenters also believed that 

using 1-hour ozone SIP budgets would 

support current air quality progress and 

ensure that attainment of the 8-hour 

standard is not delayed. 

As stated in the final 8-hour 

implementation rule (69 FR 23951) and 

corresponding response to comments 

document, EPA disagrees that revoking 

the 1-hour standard is unlawful. 

Congress gave EPA the authority to 

create and revise the NAAQS. In Clean 

Air Act section 109(d)(1), Congress 

directed EPA to review the standards 

every five years and ‘‘make such 

revisions in such criteria and standards 

and promulgate such new standards 

* * *.’’ EPA interprets ‘‘make such 

revisions in * * * standards’’ to mean 

that EPA has the authority to replace 

one standard with another. EPA does 

not believe that Congress intended to 

have overlapping standards every five 

years for the same pollutant. If that were 

the case, states would be required to 

develop and implement a SIP for each 

version of the standard. Duplicating 

these efforts would waste limited 

resources because the goal of each 

standard is the same: to protect public 

health and welfare. EPA promulgated 

the 8-hour standard in response to the 

latest data and science regarding ozone, 

and has determined that the 8-hour 

ozone standard is more protective of 

public health and welfare. EPA has 

made the decision to replace the 1-hour 

standard with the 8-hour standard, 

because it may be difficult for states to 

plan for both standards and because 

EPA concludes that the 8-hour standard 

is the more appropriate standard. 

Implicit in the authority to revise 

standards is the authority to revoke a 

standard. The U.S. Supreme Court’s 

ruling (531 U.S. 547 (2001)) in a 

challenge against EPA’s 1997 8-hour 

ozone implementation strategy certainly 

did not state otherwise. EPA needs to be 

able to revoke standards so that states 

and areas can move on to implementing 

the new standard and not have to 

implement old standards in perpetuity. 

Finally, since the 8-hour standard is the 

more stringent of the two standards, 

EPA believes conforming to that 

standard will be sufficient, as noted by 

several commenters. 

As stated in the April 30, 2004 final 

8-hour implementation rule (69 FR 

23969), EPA believes it is sufficient that 

conformity be determined for one ozone 

standard at a time. EPA concludes that 

focusing conformity requirements on 

one ozone standard at a time will meet 

Clean Air Act conformity requirements 

and use limited state and local resources 

in an efficient manner. 

However, EPA agrees that the 

continued use of existing approved or 

adequate 1-hour SIP budgets is 

important for meeting 8-hour 

conformity requirements before new 8-

hour SIPs are established. Section VI. of 

this final rule provides further 

information regarding conformity 

requirements and EPA’s rationale for 

such requirements in 8-hour ozone areas 

that have existing 1-hour SIP budgets. 

One commenter supported EPA’s 

proposal to revoke the 1-hour standard 

for areas that are found to be in 

attainment of the new 8-hour standard. 

Based on air quality data and significant 

reductions from federal and state 

measures that will continue to remain in 

place, this commenter believed that 

revoking the 1-hour standard in the 

commenter’s specific area would not 

impact ozone emissions. 

However, two other commenters 

opposed eliminating conformity in 1-

hour ozone nonattainment and 

maintenance areas that were not 

designated nonattainment for the 8-hour 

standard. One of these commenters 

argued that conformity under the 1-hour 

maintenance plan helped prevent 8-

hour violations, and urged EPA to work 

with these areas to find an acceptable 

mechanism to allow those areas that 

wish to retain conformity as a 

preventative measure. The other 

commenter believed that all areas that 

are covered by one of the ozone 

standards must continue or start to 

provide for clean air; the conformity 

process is a mechanism to accomplish 

this goal. 

Conformity cannot apply in 1-hour 

maintenance areas once the standard is 

revoked. The Clean Air Act specifically 

states that conformity applies only in ‘‘a 

nonattainment area* * *’’ and ‘‘an area 

that was designated as a nonattainment 

area but that was later redesignated by 

the Administrator as an attainment area 

and that is required to develop a 

maintenance plan under section 7505a 

of this title* * *’’ (42 U.S.C. 7506(5)). 

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

conformity to nonattainment areas and 

areas that are required to submit 

maintenance plans under section 175A; 

in these areas, the Federal government’s 

sovereign immunity is waived so that 

DOT can be required to make 

conformity determinations.10 However, 

after revocation of the 1-hour standard, 

the areas previously required to submit 

section 175A maintenance plans under 

the statute for the 1-hour standard will 

no longer be required to do so. Thus, 

conformity can no longer be required in 

1-hour maintenance areas, since the 

Clean Air Act limits conformity to areas 

that are required to submit section 175A 

maintenance plans and no longer 

waives the Federal government’s 

sovereign immunity for these areas after 

revocation.

EPA acknowledged in the June 2, 

2003 proposed 8-hour implementation 

rule (68 FR 32818–32825) that our 

interpretation that conformity would 

not apply in 1-hour maintenance areas 

differs from the approach taken in 1997. 

In 1997, EPA interpreted revoking the 1-

hour standard to mean that conformity 

would not apply for the 1-hour standard 

in areas that were nonattainment for the 

1-hour standard, but that conformity 

would continue to apply for the 1-hour 

standard in areas with a maintenance 

plan. This interpretation led to an unfair 

and counter-intuitive result: areas that 

had attained the standard and had made 

the effort to establish a maintenance 

plan would have to continue a required 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40011

program, but areas that had not attained 

would not. EPA reconsidered this result 

and found it to be unfair and 

inappropriate. Further, upon 

reanalyzing Clean Air Act section 

176(c)(5), this previous interpretation 

did not fit with the text of the statute. 

As stated in the April 30, 2004 final 

8-hour implementation rule (69 FR 

23987), EPA has concluded that the 

better interpretation of the statute is that 

conformity would not apply in 1-hour 

maintenance areas once the 1-hour 

standard is revoked, because 

maintenance areas are relieved of the 

obligation under Clean Air Act section 

175A (42 U.S.C. 7505a) to have a 

maintenance plan. Since these areas are 

no longer required to have a 

maintenance plan, conformity no longer 

applies for the 1-hour standard in these 

areas as a matter of law, and no waiver 

of sovereign immunity applies to allow 

imposition of conformity requirements.

It is EPA’s conclusion that areas that 

are in attainment for the 8-hour 

standard are not subject to conformity 

because the statute explicitly limits the 

applicability of conformity to 

designated nonattainment and 

maintenance areas for a given pollutant 

and standard. EPA notes that these areas 

still have incentive to monitor the 

growth of emissions from the 

transportation sector; if these areas 

violate the 8-hour standard, EPA would 

designate them nonattainment for the 8-

hour standard and conformity would 

then apply. Although states cannot 

implement conformity for attainment 

areas as a matter of federal law, they 

could still work with their MPOs to 

estimate regional emissions that would 

be generated by the planned 

transportation system to see whether a 

violation could occur, and to address 

motor vehicle emissions growth. These 

type of state activities may be done 

under state law, when possible, or on a 

voluntary basis. 

One commenter suggested that the 1-

hour standard should remain in place 

until the 8-hour standard is fully 

implemented and no longer subject to 

legal challenges to ensure that one of the 

ozone standards is implemented. The 

commenter believed that this approach 

would be particularly important for 

areas impacted by regional transport. 

Other commenters stated that the 8-hour 

ozone standard should be delayed if 

revocation of the 1-hour standard 

becomes delayed. 

EPA does not believe, however, that 

the current statutory and regulatory 

requirements allow us to extend 

conformity for the 1-hour standard or 

delay conformity for the 8-hour 

standard in the event of legal 

challenges, for example, as this 

commenter has suggested. In the April 

30, 2004 final 8-hour ozone 

implementation rule, EPA specifically 

promulgated rules that will revoke the 

1-hour standard one year after the 

effective date of 8-hour designations. 

Alternatively, Clean Air Act section 

176(c)(6) and conformity rule 

§ 93.102(d) require conformity for the 8-

hour standard one year after the 

effective date of ozone nonattainment 

designations. Therefore, conformity for 

the 8-hour standard will apply in areas 

designated nonattainment for that 

standard on June 15, 2005. As 

previously stated, EPA has no statutory 

authority to extend the one-year 

conformity grace period and delay the 

conformity requirements in new 8-hour 

nonattainment areas. 

A few commenters recommended that 

if 8-hour ozone SIP budgets are 

submitted and found adequate by EPA 

prior to revocation of the 1-hour 

standard, they should replace all prior 

ozone budgets, including those for the 

1-hour standard. One commenter 

supported EPA’s proposal to require 

that 1-hour conformity requirements be 

met prior to revocation, including 

adherence to the applicable 1-hour SIP 

budgets. Another commenter believed 

that only conformity for the 8-hour 

standard should apply once 

designations are made during the oneyear grace period, rather than the 1-hour 

conformity requirements. 

EPA addressed this issue of 

revocation as part of its April 30, 2004 

final 8-hour implementation rule. EPA 

did not propose in its June 2, 2003, 8-

hour implementation proposal to revoke 

the 1-hour standard earlier than one 

year after designations, since EPA 

intended to align the revocation of the 

1-hour standard with the application of 

conformity requirements for the 8-hour 

standard one year after the effective date 

of 8-hour nonattainment designations. 

Furthermore, EPA did not expect that 

areas would be able to submit an 8-hour 

SIP earlier. 

EPA continues to believe that most 

areas are unlikely to have adequate 

budgets that address the 8-hour 

standard before EPA revokes the 1-hour 

standard. Such budgets cannot stand 

alone but have to be associated with 

adopted control measures and 

demonstrations of either attainment or 

reasonable further progress, and EPA 

believes developing these SIPs will take 

states some time. Once the SIPs are 

submitted, EPA must find them 

adequate, a process which EPA intends 

to complete within 90 days of receiving 

a SIP in most cases. It is very unlikely 

that states will be able to complete the 

work to submit 8-hour SIPs prior to one 

year from the effective date of 8-hour 

designations, and much less likely that 

states would have submitted them 

sufficiently in time for EPA to find them 

adequate before the 1-hour standard is 

revoked. 

Given these facts and the fact that 

EPA did not include in its June 2003 8-

hour implementation proposal an 

option for revoking the standard earlier 

than one year after 8-hour designations 

are effective, EPA did not provide for 

early revocation of the 1-hour standard, 

nor will EPA require 8-hour areas to 

expedite development of their 8-hour 

SIP for this purpose. As described 

above, the Clean Air Act provides a oneyear grace period before conformity for 

the 8-hour standard applies, so EPA is 

not able to mandate 8-hour 

requirements sooner, as suggested by 

one commenter. Prior to the revocation 

of the 1-hour standard, new or revised 

transportation plans and TIPs must 

conform to the applicable SIP budgets 

for the 1-hour standard. 

Finally, one commenter believed that 

the final rule should address the 

situation where a new ozone 

nonattainment area can demonstrate 

conformity for the 8-hour standard 

during the grace period, but cannot for 

the 1-hour standard. 

EPA has concluded consistent with 

the April 30, 2004 final 8-hour ozone 

implementation rule and today’s action, 

the 1-hour standard will remain in effect 

for one year following the effective date 

of 8-hour nonattainment designations. 

EPA believes this is appropriate since 8-

hour conformity cannot be required to 

apply before that time. Therefore, areas 

currently designated nonattainment or 

maintenance for the 1-hour ozone 

standard must demonstrate conformity 

for the 1-hour standard for any new or 

revised transportation plan, TIP and 

project approval during the one-year 

grace period for the 8-hour standard. In 

general, if an area must determine plan/

TIP conformity during the grace period 

because of a required deadline and is 

unable to do so, the nonattainment or 

maintenance area’s conformity for the 1-

hour standard will lapse. This lapse 

would remain in effect until conformity 

for the 1-hour standard is re-established 

or the 1-hour standard is revoked, 

regardless of whether the area conforms 

for the 8-hour standard during that time 

period. On the other hand, if an area’s 

plan/TIP meets conformity for the 1-

hour standard but cannot meet 

conformity for the 8-hour standard 

during the grace period, the area would 

lapse when the one-year grace period 

ends, because at that point, conformity 

applies for the 8-hour standard. 

40012 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

11As described in A. of this section, isolated rural 

areas that are designated nonattainment for the 8-

hour ozone and/or PM2.5 standard may not need to 

demonstrate conformity by the expiration of the 

one-year grace period. Newly designated isolated 

rural areas are only required to determine 

conformity for the first time when a non-exempt 

federal highway or transit project requires funding 

or approval after the end of the one-year grace 

period.

C. How Do Areas Implement the One 

Year Conformity Grace Period and 

Transition From the 1-hour Ozone 

Standard? 

In the November 5, 2003 proposal, 

EPA provided details on the application 

of the one-year conformity grace period 

in metropolitan, donut, and isolated 

rural nonattainment areas (68 FR 

62695–62696). New nonattainment 

areas should refer to A. of this section 

and the November 2003 proposal for 

these discussions. 

EPA received several questions and 

comments regarding general 

implementation for the new standards. 

The paragraphs below include general 

information on the implementation of 

conformity requirements for: 

• Initial conformity determinations in 

new nonattainment areas; 

• regional emissions modeling 

requirements in new nonattainment 

areas; 

• timely implementation of 

transportation control measures (TCMs) 

in approved SIPs; 

• multi-jurisdictional nonattainment 

areas (e.g., multi-state areas and areas 

with sub-area budgets); and 

• donut and isolated rural areas.

Both the November 2003 proposal’s 

preamble and our response to comments 

below are based on implementation 

precedent to date, and do not create any 

new conformity policy. Section VI. of 

today’s notice provides more details on 

the use of 1-hour ozone budgets in 8-

hour ozone nonattainment areas. EPA 

will post more detailed implementation 

guidance on its transportation 

conformity website for conformity 

determinations in new standard areas, 

including 8-hour ozone areas with 1-

hour SIP budgets and multi-state/multiMPO nonattainment areas. Please see 

Section I.B.2. of this notice for 

information regarding EPA’s conformity 

website.

1. Initial 8-hour Ozone and PM2.5

Conformity Determinations 

As described in A. of this section, 

areas that are designated nonattainment 

for the 8-hour ozone and/or PM2.5

standard must determine conformity of 

transportation plans and TIPs by the 

expiration of the one-year conformity 

grace period for a relevant pollutant and 

standard. Metropolitan and donut 8-

hour ozone and PM2.5 nonattainment 

areas must complete all of the tasks that 

are required for a conformity 

determination (e.g., interagency 

consultation, regional emissions 

analyses, public participation, MPO and 

DOT conformity determinations) during 

the relevant grace period in order to 

avoid a conformity lapse upon the 

expiration of the grace period.11 Clean 

Air Act section 176(c)(6) specifically 

states that conformity will not apply in 

an area for a particular standard until 

one year after the area is designated for 

that standard. Thus, although 

completing conformity determinations 

for the new standards is not required 

prior to the end of the grace period, 

FHWA, FTA, and MPOs can choose to 

make determinations early for 

administrative purposes, when desired. 

FHWA and FTA have voluntarily agreed 

that they can make conformity 

determinations during the grace period 

even though it is not mandated by the 

Clean Air Act.

Metropolitan areas that are designated 

nonattainment for the 8-hour ozone and 

PM2.5 standards can make transportation 

plan and TIP conformity determinations 

during their respective grace periods on 

a voluntary basis. In order to avoid a 

lapse, DOT must make its conformity 

determination prior to the end of the 

grace period. The timing of the next 

required plan and TIP conformity 

determinations will be determined 

pursuant to the frequency requirements 

in § 93.104 of the conformity rule, 

starting from the date of DOT’s first 

conformity determination that includes 

a new regional emissions analysis under 

the new standards, even if this occurs 

prior to the end of the grace period. 

Thus, conformity determinations will 

always be conducted at intervals as 

required by the regulations. 

Similarly, a conformity determination 

for a non-exempt FHWA/FTA project in 

a metropolitan, donut, or isolated rural 

area could be prepared during the oneyear grace period, and submitted to 

DOT. DOT can make its conformity 

determination for such a project during 

the grace period. However, a conformity 

determination for a new standard might 

not be necessary if FHWA and FTA take 

all necessary approval actions prior to 

the end of the grace period. Once the 

conformity grace period expires, a 

project-level conformity determination 

is required whenever non-exempt 

projects complete the NEPA process, as 

defined in 40 CFR 93.101. For projects 

that complete the NEPA process prior to 

the end of the conformity grace period 

without a conformity determination for 

a new standard, a project-level 

conformity determination would be 

required for the next project phase that 

requires FHWA/FTA approval. 

2. Regional Emissions Analysis 

Requirements in 8-hour Ozone and 

PM2.5 Areas 

One commenter requested 

clarification on whether different 

regional emissions analysis 

requirements will apply under the 1-

hour and 8-hour ozone standards. In 

this rulemaking, EPA did not change the 

regional emissions analysis 

requirements in § 93.122 for existing 

and new nonattainment and 

maintenance areas. Therefore, new 8-

hour ozone and PM2.5 areas must 

adhere to the same emissions analysis 

requirements as existing areas. For 

example, only 8-hour ozone 

nonattainment areas classified as 

serious, severe and extreme whose 

metropolitan planning area contains an 

urbanized population over 200,000 are 

required to meet the more rigorous 

transportation modeling requirements 

contained in § 93.122(b) of the 

conformity rule. Based on EPA’s April 

15, 2004 designations and 

classifications for 8-hour nonattainment 

areas as published in the Federal 

Register on April 30, 2004 (69 FR 

23858), all nonattainment areas 

classified as serious or severe under the 

8-hour ozone standard are already 

meeting these modeling requirements 

because they had a similar or higher 

classification under the 1-hour ozone 

standard. There are no nonattainment 

areas classified as extreme under the 8-

hour standard. 

However, even if these areas were 

required to expand the geographic area 

covered by their transportation model, 

these expanded areas would have a twoyear grace period to revise their model 

to cover the full 8-hour ozone 

nonattainment area, as described in 

Section XXIII. and § 93.122(c) of today’s 

action. Similarly, if there are 8-hour 

ozone nonattainment areas initially 

classified as serious or severe with an 

urbanized population greater than 

200,000 that were never previously 

required to comply with the modeling 

requirements contained in § 93.122(b), 

either because their 1-hour classification 

was lower or their urbanized population 

was under 200,000, these areas would 

also have a two-year grace period to 

develop a new transportation model that 

satisfies these requirements. During the 

two-year grace period, affected areas 

must meet the requirements of 

§ 93.122(d) of the conformity rule. 

In addition, PM2.5 nonattainment 

areas and all other 8-hour ozone 

nonattainment areas are also required to 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40013

comply with the transportation 

modeling requirements contained in 

§ 93.122(d). This section requires these 

areas to continue to model regional 

emissions using all of the procedures 

described in § 93.122(b) where it has 

been their past practice. In other words, 

if an area has previously been required 

to demonstrate conformity and the 

area’s transportation model and 

modeling practices either fully or 

partially complied with the 

requirements of § 93.122(b), the area 

must continue to model regional 

emissions for the 8-hour ozone and/or 

PM2.5 standard using procedures which 

continue to meet these same aspects of 

the § 93.122(b) requirements that were 

previously met. Otherwise, areas may 

estimate regional emissions using any 

appropriate methods that account for 

growth in vehicle miles traveled (VMT) 

and consider future economic activity, 

transit alternatives and transportation 

system policies, as determined through 

the interagency consultation process. 

3. Timely Implementation of TCMs in 

Approved SIPs 

Section 93.113 of the existing 

conformity rule requires that 

transportation plans, TIPs, and projects 

which are not from a conforming plan 

and TIP must provide for the timely 

implementation of TCMs from an 

approved SIP. EPA notes that today’s 

final rule does not change the 

implementation of these requirements 

for any existing or new nonattainment 

or maintenance area, including 8-hour 

nonattainment areas that have approved 

1-hour SIPs that contain TCMs.

Clean Air Act section 176(c) requires 

that TCMs in approved SIPs be 

implemented in a timely manner 

according to the schedules in the SIP. 

This requirement is not contingent on 

what type of SIP, pollutant, or standard 

for which the approved TCM was 

established. Conformity determinations 

for any pollutant and standard must 

provide for the timely implementation 

of TCMs in approved SIPs, including 

TCMs in approved SIPs for the 1-hour 

ozone standard after that standard is 

revoked. Such TCMs can only be 

removed from the 1-hour SIP through 

the SIP process. 

4. Multi-State Nonattainment Areas and 

Nonattainment Areas With Sub-Area 

Budgets 

Some commenters requested 

clarification regarding how conformity 

would be implemented under the new 

standards in nonattainment areas with 

multiple MPOs or that cover multiple 

states. EPA believes that today’s action 

is consistent with its existing 

conformity rule and historical precedent 

that provides flexibility to such areas. 

For example, nonattainment areas with 

multiple MPOs can establish sub-area 

motor vehicle emissions budgets in their 

8-hour ozone or PM2.5 SIPs to allow 

MPOs to do conformity separately, 

provided that all MPOs in such a 

nonattainment area continue to have 

conforming transportation plans and 

TIPs. EPA will post implementation 

guidance on its transportation 

conformity Web site for conformity 

determinations in multi-state and multiMPO nonattainment areas. Please see 

Section I.B.2. of this notice for 

information regarding EPA’s conformity 

Web site. 

5. Donut Areas 

A few commenters requested 

clarifications pertaining to conformity 

implementation in portions of a 

nonattainment area that are not 

contained within the area’s MPO 

boundary (i.e., ‘‘donut areas’’). 

Specifically, one commenter requested 

that adjacent MPO and donut areas in 

the same nonattainment area be allowed 

to submit individual conformity 

determinations. 

In general, EPA believes that regional 

emissions for an entire nonattainment 

area, including any donut portion, must 

be considered at the time a conformity 

determination is made to ensure that all 

transportation activities in that area 

conform. Therefore, EPA has not 

changed the current rule’s requirements 

and existing precedent for donut areas 

in response to this comment. Areas that 

contain a donut portion should refer to 

the November 5, 2003 proposal (68 FR 

62695–62696) for more information on 

the requirements for demonstrating 

conformity in donut areas. 

Another commenter requested that 

EPA designate state transportation and 

air quality agencies as the lead agencies 

for conducting and completing 

conformity determinations for donut 

areas. This commenter believed that this 

process for demonstrating conformity in 

donut areas needs to be formalized 

through the interagency consultation 

process and/or a memorandum of 

understanding. 

EPA anticipates that the state 

departments of transportation may take 

the lead in conducting regional 

emissions analyses for the donut portion 

in some nonattainment areas. However, 

there may be cases where an adjacent 

MPO is better suited to conduct such 

analyses or wants to include the donut 

area’s projects in its plan and TIP and 

supporting regional emissions analysis. 

Section 93.105(c)(3) of the conformity 

rule relies on the interagency 

consultation process (including the 

MPO and state transportation agency) to 

determine how best to consider projects 

that are planned for donut areas located 

outside the metropolitan area and 

within the nonattainment or 

maintenance area in the conformity 

process. Section 93.105 also requires 

that such procedures for demonstrating 

conformity of donut area projects be 

included in an area’s conformity SIP 

that is approved by EPA. Therefore, EPA 

believes that the existing rule’s 

requirements and the flexibility 

provided by this provision remain 

appropriate and do not need to be 

revised to address this comment. 

Another commenter raised concerns 

that in some nonattainment areas only 

portions of the donut area may be 

included in the MPO’s transportation 

model. This commenter also suggested 

that emissions information for such 

outlying donut portions may not be 

readily available. 

EPA understands that the donut 

portion of some new nonattainment 

areas may not be included in the 

adjacent MPO’s transportation model 

and may not have as up-to-date or 

detailed planning information as the 

MPO. The conformity rule provides 

flexibility for modeling requirements in 

these areas. In fact, existing methods 

that are used in donut areas may already 

be suitable for conformity 

determinations. EPA does not believe 

that a travel demand model is required 

to estimate emissions for donut areas in 

most cases (provided that § 93.122(b) 

does not apply to the nonattainment 

area). See C.2. of this section for more 

information about the general 

transportation modeling requirements in 

8-hour and PM2.5 nonattainment areas. 

In addition, the conformity rule 

requires the use of the latest planning 

assumptions and emissions models that 

are available at the time a conformity 

analysis begins (§§ 93.110 and 93.111). 

Today’s change to the latest planning 

assumptions requirements is discussed 

in Section XX. of this preamble. For 

most donut areas, the most recently 

available Highway Performance 

Monitoring System (HPMS) estimates of 

VMT may be the only source of travel 

data available, and thus, should be used. 

Some donut areas may also need to rely 

on national default data (e.g., speeds 

and vehicle registration data) included 

in EPA’s most recent emissions model, 

MOBILE6.2, when estimating emissions 

if no local data is available for the donut 

area and it appears that the default data 

is more representative than the local 

information for the adjacent 

metropolitan area. In such a case the 

conformity determination for the area 

40014 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

should contain an explanation of why 

the default data was used for a portion 

of the nonattainment area. The 

interagency consultation process must 

be used to determine which planning 

assumptions are considered the latest 

and best for demonstrating conformity 

for donut areas prior to the expiration of 

the one-year conformity grace period. 

6. Isolated Rural Areas 

We received one comment that 

supported our November 5, 2003 

proposal for implementing the 

conformity grace period in isolated rural 

areas. This commenter believed that due 

to the rarity of new non-exempt projects 

in these areas, requiring a conformity 

determination for only exempt projects 

would be a misuse of resources. EPA 

agrees with this comment, and 

therefore, clarified in the November 

2003 proposal and today’s final rule that 

conformity in isolated rural areas is 

required only when a non-exempt 

FHWA/FTA project(s) needs funding or 

approval. See A. of this section and the 

November 2003 proposal (68 FR 62696) 

for more information. 

D. When and For What Ozone Standard 

Does Conformity Apply in Areas With 

an Early Action Compact for the 8-hour 

Ozone Standard? 

1. Description of Final Rule 

EPA has provisionally deferred into 

the future the effective date of 8-hour 

ozone nonattainment designations for 

areas participating in an Early Action 

Compact (EAC). The deferral of the 8-

hour designation effective date is 

contingent upon the participating area’s 

adherence to all the terms and 

milestones of its EAC, as described in 

EPA’s November 14, 2002 memorandum 

entitled, ‘‘Schedule for 8-Hour Ozone 

Designations and its Effect on Early 

Action Compacts,’’ the December 16, 

2003 proposed EAC rule (68 FR 70108), 

and the April 30, 2004 final 

designations rule (69 FR 23864).

Consistent with § 93.102(d) and Clean 

Air Act section 176(c)(6), conformity for 

the 8-hour ozone standard will not 

apply until one year after the effective 

date of an EAC area’s 8-hour 

nonattainment designation. Therefore, 

conformity for the 8-hour ozone 

standard will apply in an EAC area only 

if the area fails to meet all the terms and 

milestones of its compact and the 

nonattainment designation becomes 

effective. In this case, conformity for the 

8-hour standard will be required one 

year after the effective date of EPA’s 

nonattainment designation that will 

occur shortly after a missed EAC 

milestone. Conversely, if the area meets 

all of the EAC milestones and attains the 

8-hour ozone standard by December 

2007, conformity for the 8-hour ozone 

standard would never apply since the 

area’s ultimate effective designation 

would be attainment for the 8-hour 

ozone standard. 

Conformity for the 1-hour ozone 

standard will continue to apply in EAC 

areas that are currently 1-hour ozone 

maintenance areas and are required to 

demonstrate conformity for that 

standard. If a maintenance area meets 

all of its EAC milestones and attains the 

8-hour ozone standard by December 

2007, conformity for the 1-hour 

standard will no longer apply once EPA 

revokes that standard one year after the 

effective date of EPA’s 8-hour 

attainment designation (i.e., spring 

2009). 

If, however, a 1-hour ozone 

maintenance area fails to meet a 

milestone in its EAC, EPA would lift its 

deferral, and the area’s 8-hour ozone 

nonattainment designation would 

become effective shortly after the 

missed milestone. Under this scenario, 

conformity for the 1-hour ozone 

standard will continue to apply until 

one year after the effective date of EPA’s 

nonattainment designation. Also 

occurring at one year after the 

nonattainment designation will be 

revocation of the 1-hour ozone standard, 

expiration of the one-year conformity 

grace period, and the application of 

conformity for the 8-hour ozone 

standard under Clean Air Act section 

176(c)(6). 

2. Rationale and Response to Comments 

All commenters who addressed this 

topic supported EPA’s approach for 

deferring the 8-hour ozone conformity 

requirements in EAC areas through 

deferral of the effective date of 8-hour 

designations. One of these commenters 

believed that EPA’s proposal can yield 

positive results while imposing minimal 

constraints on states and localities. 

Other commenters believed that the 

EAC policy is a proactive approach for 

meeting Clean Air Act requirements and 

should reduce emissions and provide 

for attainment without the need of the 

conformity requirements. EPA agrees 

with these comments. 

Another commenter raised concerns 

regarding how conformity would be 

implemented in 8-hour ozone 

nonattainment areas that are covered 

only partially by an EAC. For example, 

in a nonattainment area that contains a 

few donut counties that are not covered 

by a metropolitan area’s EAC, this 

commenter argued that the conformity 

status of such an EAC would not lapse 

if the donut counties could not 

demonstrate conformity by the 

expiration of the one-year grace period. 

However, since 8-hour ozone 

nonattainment areas were not 

designated as the commenter described, 

EPA is not providing guidance in 

today’s notice for such a situation. 

IV. General Changes in Interim 

Emissions Tests 

A. Background 

Conformity determinations for 

transportation plans and TIPs as well as 

transportation projects not from a 

conforming plan and TIP must include 

a regional emissions analysis that 

fulfills certain Clean Air Act provisions. 

Section 176(c) requires that 

transportation activities in all 

nonattainment and maintenance areas 

must not worsen air quality. In addition, 

transportation activities in ozone and 

CO nonattainment areas of higher 

classifications also need to contribute 

emission reductions towards 

attainment. 

The conformity rule provides for 

several different regional emissions 

analysis tests that satisfy these Clean Air 

Act requirements in different situations. 

Once a SIP with a motor vehicle 

emissions budget (‘‘budget’’) is 

submitted for an air quality standard 

and EPA finds the budget adequate or 

approves it as part of the SIP, 

conformity is demonstrated using the 

budget test for that pollutant or 

precursor, as described in § 93.118 of 

the conformity rule. Before an adequate 

or approved SIP budget is available, 

conformity of the transportation plan, 

TIP, or project not from a conforming 

plan and TIP is generally demonstrated 

with the interim emissions tests, as 

described in § 93.119. 

The following subsections describe 

the final changes to the interim 

emissions tests (under § 93.119). 

Sections V., VI., and VII. describe the 

application of these tests in different 8-

hour ozone and PM2.5 areas (under 

§ 93.109). 

B. Baseline Year Test for 8-Hour Ozone 

and PM2.5 Areas 

1. Description of Final Rule 

We are adding the following tests to 

the conformity rule for 8-hour ozone 

and PM2.5 nonattainment areas: 

• The ‘‘less-than-2002 emissions’’

test, and 

• the ‘‘no-greater-than-2002 

emissions’’ test.

Under these interim emissions tests, 

conformity would be demonstrated if 

the emissions from the proposed 

transportation system are either less 

than or no greater than 2002 motor 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40015

vehicle emissions in a given area. 

Regulatory text for the 2002 baseline 

year tests can be found in § 93.119. See 

Sections V.-VII. for how these tests will 

be applied in various 8-hour ozone and 

PM2.5 areas. 

EPA is not changing the 1990 baseline 

year tests for 1-hour ozone, CO, PM10

and NO2 areas that do not have adequate 

or approved SIP budgets. However, 

§ 93.119 has been reorganized to include 

the provisions for new 8-hour ozone and 

PM2.5 areas. 

Consistent with current practice, the 

interagency consultation process under 

§ 93.105(c)(1)(i) must be used to 

determine the latest assumptions and 

models for generating 2002 motor 

vehicle emissions to complete either 

baseline year test. All 8-hour and PM2.5

areas will be submitting baseline SIP 

inventories for the year 2002. As 

described in the proposal, the 2002 

baseline year test can be completed with 

the SIP’s 2002 motor vehicle emissions 

inventory, if the SIP has been submitted 

in time for the current conformity 

determination. Draft 2002 baseline year 

emissions from a SIP inventory under 

development or the consultation process 

could also be used to develop 2002 

baseline year emissions as part of the 

conformity analysis. EPA believes that a 

submitted or draft 2002 SIP inventory 

may be the most appropriate source for 

completing the 2002 baseline year tests 

for an area’s first conformity 

determination under the new standards. 

This is due to the fact that the 2002 SIP 

inventories should be under 

development at the same time as these 

determinations, and such inventories 

should be based on the latest available 

data at the time they are developed. 

Whatever the source, the 2002 baseline 

year emissions level that is used in 

conformity must be based on the latest 

planning assumptions available for the 

year 2002, the latest emissions model, 

and appropriate methods for estimating 

travel and speeds as required by 

§§ 93.110, 93.111 and 93.122 of the 

conformity rule. 

2. Rationale and Response to Comments 

Most commenters supported the 

proposal to use 2002 for the baseline 

year tests for the new air quality 

standards. These commenters also 

supported the use of the interagency 

consultation process to determine how 

the 2002 baseline emission level is 

calculated. However, a few commenters 

supported using a more recent baseline 

year (i.e., 2003, 2004, 2005) for 

conformity analyses completed before 8-

hour ozone or PM2.5 SIP budgets are 

found adequate. These commenters 

argued that a more recent year should be 

used when reliable data are available to 

ensure that additional project approvals 

are not made during interim years with 

an artificially high 2002 motor vehicle 

emissions inventory. 

EPA continues to believe that the year 

2002 is more appropriate than either the 

1990 baseline year or a more recent 

baseline year, as some commenters 

suggested. EPA believes that it is 

important to have transportation and air 

quality planning time frames 

coordinated. Having consistent baseline 

years for SIPs, conformity 

determinations and other emission 

inventory requirements helps to achieve 

this goal. This was the rationale for 

maintaining 1990 as the baseline year 

for conformity tests in existing areas, 

and past experience indicates that 

having similar baseline years for SIP 

and conformity planning purposes has 

worked well. 

As described in the November 2003 

proposal, EPA has selected 2002 as the 

baseline year for SIP inventories under 

the new 8-hour ozone and PM2.5

standards. EPA’s November 18, 2002 

memorandum, ‘‘2002 Base Year 

Emission Inventory SIP Planning: 8-hr 

Ozone, PM2.5, and Regional Haze 

Programs,’’ identifies 2002 as the 

emission inventory base year for the SIP 

planning process to address both of 

these pollutants and standards. EPA’s 

April 30, 2004 final 8-hour ozone 

implementation rule also establishes 

2002 as the base year for 8-hour ozone 

SIP inventories (69 FR 23951), as 

described in the June 2, 2003 proposal 

(68 FR 32810). Finally, EPA’s 

Consolidated Emissions Reporting Rule 

(CERR) requires submission of emission 

inventories every three years, and 2002 

is one of the required years for such 

updates. EPA continues to believe that 

coordinating conformity’s baseline with 

other data collection and inventory 

requirements would allow state and 

local governments to use their resources 

more efficiently. In addition, since 

conformity is to be measured against a 

SIP it is appropriate to use the baseline 

year that will be used for SIP planning.

Furthermore, a 2002 baseline year is 

an appropriate measure for meeting 

Clean Air Act conformity requirements 

to not worsen air quality prior to 

adequate SIP budgets being established. 

EPA notes that emission inventories are 

generally not submitted until 

approximately two years after the year 

for which they are calculated. The 2002 

inventories are scheduled to be 

submitted by the states to EPA in June 

of 2004, the year designations are made 

for the 8-hour ozone and PM2.5

standards. In addition, emission 

inventories are not expected to vary by 

much in the few years following 2002. 

Emission inventories are generally 

trending downward, but year to year 

changes are generally small. Any 

advantage gained by using the most 

recent available inventory as the 

baseline for conformity purposes would 

be offset by the loss of coordination 

with other agencies and processes that 

will be possible by the use of 2002 as 

the baseline year. Therefore, EPA is 

retaining in this final rule the 2002 

baseline year tests for conformity under 

the new air quality standards. 

Finally, EPA is responding today to a 

comment that was raised in the context 

of the June 2, 2003 proposed 8-hour 

ozone implementation rule. A 

commenter supported using only the 

motor vehicle emissions inventories for 

the year 2002 as de facto interim motor 

vehicle emissions budgets for 

conformity determinations, during the 

time period before 8-hour areas have 

adequate or approved SIP budgets for 

the 8-hour standard. This commenter 

also suggested that the motor vehicle 

emissions inventory could be decreased 

3% per year between the base year of 

2002 and the attainment year, to 

represent ‘‘reasonable further progress’’

for the transportation sector. 

EPA understands the commenter’s 

point that the 2002 inventory is similar 

to a budget, in that both a 2002 baseline 

inventory and a SIP budget that is 

established to meet a Clean Air Act 

requirement serve as an emissions 

ceiling on future transportation actions. 

However, EPA does not agree that the 

2002 baseline inventory could be used 

as a ‘‘de facto budget’’ and replace the 

interim emissions test requirements in 

today’s final rule. 

As described below, prior to adequate 

or approved SIP budgets being 

established, 8-hour ozone areas that are 

classified as moderate or higher are 

generally required to complete both the 

build-less-than-no-build and less-than2002 interim emissions tests. Areas that 

are marginal or designated 

nonattainment under subpart 1 of part D 

of title 1 of the Clean Air Act (‘‘subpart 

1 areas’’) could, in general, choose to 

use either the no-greater-than-2002 or 

the build-no-greater-than-no-build test 

prior to an 8-hour SIP. Finally, all 8-

hour ozone areas have the option to 

submit a reasonable further progress SIP 

with budgets early and use the budget 

test, instead of the interim emissions 

test(s). 

EPA appreciates the commenter’s idea 

to decrease inventories incrementally 

for the purpose of the baseline year 

conformity test. However, given that 

EPA did not propose and receive public 

comment on this idea, the commenter’s 

40016 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

suggestion is not included in today’s 

final rule. Furthermore, EPA believes 

that the option for an area to submit an 

early 8-hour SIP that meets Clean Air 

Act requirements provides sufficient 

flexibility to transition areas quickly to 

the budget test for future conformity 

determinations, when desired. Please 

see Sections V. and VI. of the preamble 

for more information regarding the 

regional emissions tests that apply for 8-

hour conformity determinations. 

C. Build/No-Build Test for Certain 

Existing and New Nonattainment Areas 

1. Description of Final Rule 

EPA is revising the build/no-build test 

for certain existing and new 

nonattainment areas. Specifically, the 

final rule amends § 93.119 to create the 

‘‘build-no-greater-than-no-build’’ test, 

where conformity is demonstrated if 

emissions from the proposed 

transportation system (‘‘build’’ or 

‘‘action’’ scenario) are less than or equal 

to emissions from the existing 

transportation system (‘‘no-build’’ or 

‘‘baseline’’ scenario). 

Under today’s final rule, the build-nogreater-than-no-build test is available to 

the following subset of new and existing 

areas: 

• 8-hour ozone areas of marginal 

classification, 

• 8-hour ozone areas designated 

nonattainment under subpart 1 of part D 

of title 1 of the Clean Air Act (‘‘subpart 

1 areas’’), 

• All PM2.5 areas, 

• 1-hour ozone areas of marginal and 

below classifications (i.e., Section 185A, 

incomplete data, and sub-marginal 

areas), 

• CO areas of moderate classification 

with design values less than 12.7 ppm, 

• Not classified CO areas, 

• All PM10 areas, and 

• All NO2 areas.

Sections V., VI., and VII. of this rule 

provide more detail regarding the 

application of the build/no-build test in 

various 8-hour ozone and PM2.5 areas. 

For areas that would be using the 

build-no-greater-than-no-build test, EPA 

is also modifying the existing rule so 

that a regional emissions analysis would 

not be necessary for analysis years 

where the build and no-build scenarios 

contain exactly the same transportation 

projects and are based on exactly the 

same planning assumptions, for the 

reasons described below. Such a case 

may occur in smaller areas that do not 

have projects planned for earlier years 

in the regional emissions analysis, and 

population, land use, economic, and 

other assumptions do not change 

between the build and no-build 

scenarios for those years. Under the 

final rule, a regional emissions analysis 

would continue to be required for any 

applicable years where the action and 

baseline scenarios contain different 

projects and are based on different 

assumptions. 

This change can be found in 

§ 93.119(g)(2) of the final rule regulatory 

text. The rule requires that the 

conformity determination include 

documentation that a regional emissions 

analysis is not completed for analysis 

years in which no new projects are 

proposed and no change in planning 

assumptions has occurred. 

Finally, § 93.119 has been reorganized 

in general to accommodate the above 

and other changes articulated in this 

final rule for new and existing areas. 

2. Rationale and Response to Comments 

As explained in the November 5, 2003 

proposal, EPA believes that allowing 

certain areas to use a build-no-greaterthan-no-build test is consistent with 

Clean Air Act section 176(c)(3)(A)(iii), 

which specifically requires that 

transportation plans and TIPs contribute 

to annual emissions reductions only in 

the higher classifications of ozone and 

CO areas. This statutory provision does 

not apply to other types of 

nonattainment areas that are required to 

demonstrate only that transportation 

activities do not cause or contribute to 

new violations, increase the frequency 

or severity of existing violations, or 

delay timely attainment, pursuant to 

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

believes that if the ‘‘build’’ scenario 

emissions are no greater than (i.e., less 

than or equal to) the ‘‘no-build’’

scenario emissions, that such a 

demonstration is made, since only an 

increase in emissions would worsen air 

quality.

This change to the build/no-build test 

also makes its implementation 

consistent with the implementation of 

the baseline year tests: In ozone and CO 

areas of higher classifications, expected 

emissions from the proposed 

transportation system must be less than 

emissions in the baseline year, while in 

all other areas, expected emissions must 

be no greater than emissions in the 

baseline year. For further discussion of 

the rationale for how and where the 

baseline year tests apply, please refer to 

the preamble to the January 11, 1993 

proposed rule (58 FR 3782–3784), the 

preamble to the July 9, 1996 proposed 

rule (61 FR 36116–36117), and the 

November 5, 2003 proposal (68 FR 

62701, 62705). 

Most commenters supported EPA’s 

proposal to provide the build-nogreater-than-no-build test in certain 

nonattainment areas. Many of these 

commenters agreed with EPA’s 

interpretation of the Clean Air Act 

section 176(c)(3)(A)(iii) that ozone 

nonattainment areas that are not 

classified moderate or above, lower 

classified CO nonattainment areas and 

all PM10, NO2 and PM2.5 areas are not 

required to demonstrate annual 

emissions reductions for conformity 

purposes. One commenter stated that, 

from a practical standpoint, the build 

and no-build options are often identical 

and believed that there is no reason to 

require emissions reductions prior to 

the submission of a SIP for such areas. 

A few commenters also believed that 

this rule revision would provide 

flexibility and resolve previous 

conformity issues in areas with few 

transportation projects, only nonregionally significant projects, or 

projects planned for only certain years 

of the transportation plan. EPA agrees 

with these comments. 

A few commenters also believed that 

the proposed build-no-greater-than-nobuild test should be available to all 8-

hour ozone nonattainment areas, not 

just marginal or subpart 1 areas. Two of 

these commenters believed that EPA 

should extend this flexibility as 

satisfying the Clean Air Act section 

176(c)(1)(B) requirement, that 

transportation plans only be required to 

not make air quality worse. However, 

EPA believes that extending this 

approach to CO and ozone areas of 

higher classifications would violate 

Clean Air Act section 176(c)(3)(A)(iii), 

which also requires transportation plans 

and TIPs in these areas to contribute to 

annual emissions reductions. The buildno-greater-than-no-build test does not 

satisfy this requirement. 

In contrast, two commenters did not 

agree with EPA’s proposal to change the 

previous build-less-than-no-build test to 

a build-no-greater-than-no-build test in 

certain nonattainment areas. One of 

these commenters was concerned that 

changing the build/no-build test in 

certain areas may hinder future ozone 

reductions by not requiring the 

implementation of transportation 

activities that would reduce emissions. 

This same commenter, however, agreed 

that this proposed revision to the build/

no-build test would simplify the 

planning process. Another commenter 

did not agree with EPA’s proposal 

because this commenter believed that 

the conformity requirements should be 

the same for all parties regardless of size 

or classification. The commenter 

believed that all nonattainment and 

maintenance areas should contribute to 

reducing emissions not only to improve 

their own air quality but also to benefit 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40017

the air quality in nearby airsheds as 

well. Further, the commenter argued 

that EPA’s proposal could rectify a 

previous issue with the build/no-build 

test where the first analysis year is 

sufficiently close to the present year (the 

year in which the regional emissions 

analysis is being conducted) such that 

all of the non-exempt projects in the 

action scenario are also in the baseline 

scenario. 

EPA believes that the Clean Air Act 

makes the distinction in requirements 

between areas of different pollutants 

and classifications and thus certain 

areas are not required to contribute 

reductions towards attainment prior to 

SIP submission. Therefore, EPA is not 

changing the final rule in response to 

these comments. 

Another commenter requested 

clarification on the level of precision 

that is required to demonstrate 

conformity using the proposed build-nogreater-than-no-build test. For example, 

if an analysis resulted in emissions from 

the baseline (no-build) scenario being 

9,000 pounds/day (4.500 tons/day) and 

emissions from the action (build) 

scenario being 10,998 pounds/day 

(5.499 tons/day), the commenter asked 

whether the agency performing the 

analysis could round both values off to 

5 tons/day and claim that the build-nogreater-than-no-build test had been 

satisfied. This commenter believed that 

leaving this issue to be resolved through 

interagency consultation does not 

recognize that there are separate 

conformity interagency consultation 

rules for each region or perhaps each 

state or metropolitan area. The 

commenter questioned whether 

consistency in implementing the buildno-greater-than-no-build test could be 

maintained without sufficient guidance. 

EPA believes that, at a minimum, 

rounding conventions used in 

conformity should be consistent with 

the level of precision used for the motor 

vehicle emissions budget in the local 

SIP. Rounding conventions should be 

discussed through the interagency 

consultation process and consider past 

conformity practices for the area. EPA 

notes that today’s final rule only 

addresses how conformity analyses are 

performed; budgets cannot be rounded 

or changed from the emissions level that 

is determined by the SIP. If questions 

remain or if the area has never 

developed a local SIP, the interagency 

consultation process is the correct place 

to deal with questions of precision and 

rounding. The precision used in the 

development of local emissions 

inventories may vary depending on the 

size of the area and the resources 

available for the analysis. Decisions on 

rounding conventions for conformity 

analyses need to be consistent with 

local analysis methods and cannot 

easily be made at the national level. 

However, even given local variations in 

analysis methods, it is clear in the 

commenter’s example that the build 

scenario produces emissions greater 

than the no-build scenario, and thus the 

test is not passed. 

EPA also notes that the final rule will 

also reduce the resource burden for 

analysis years where no new projects 

are proposed to be completed and 

assumptions do not change. Under the 

previous rule, a regional emissions 

analysis is required for all analysis 

years, even if no new projects are 

proposed for analysis years in the 

distant future. For such analysis years, 

the emissions from the build and nobuild scenarios contain the same 

projects and assumptions, and therefore, 

result in exactly the same level of 

emissions. 

EPA believes that in such cases it is 

obvious that the build-no-greater-thanno-build test is passed without 

calculating the emissions for such 

analysis years. Furthermore, the Clean 

Air Act requirements to not worsen air 

quality or delay timely attainment may 

be met by documenting in the 

conformity determination that projects, 

assumptions, and thus emissions would 

remain the same for affected analysis 

years. 

Most commenters supported EPA’s 

proposal to not require a regional 

analysis in years where the build and 

no-build scenarios are exactly the same 

with the same projects and planning 

assumptions. Many of these commenters 

believed that the proposal would reduce 

burden on small urban areas with 

relatively few projects and resources for 

conducting conformity analyses. One 

commenter also believed that this 

proposal would prevent conformity 

lapses and would allow states to focus 

on those nonattainment areas with more 

transportation projects and more severe 

air quality issues. Two commenters 

believed this flexibility should also be 

extended to ozone nonattainment areas 

of higher classifications.

EPA agrees that this approach will 

likely relieve some of the burden of the 

conformity process on small areas with 

few projects and less serious air quality 

problems. However, ozone areas with 

higher classifications are required to 

meet a build-less-than-no-build test so 

this provision of today’s final rule does 

not apply. In these areas, transportation 

plans and TIPs actually have to reduce 

emissions from current levels. 

One commenter raised concerns with 

our proposal to waive regional analysis 

requirements for future analysis years 

when the build and no-build scenarios 

are exactly the same. This commenter 

did not agree with EPA’s logic for the 

proposed rule revision, stating that the 

build and the no-build cases will always 

contain different assumptions regarding 

growth. Another commenter pointed out 

that EPA’s proposal would be beneficial 

only when new projects are 

programmed in the later years of a plan, 

and no new projects are planned for the 

early years of the plan or TIP. However, 

in the reverse situation when projects 

are added in the early years of the TIP 

or plan but not in the later years, the 

commenter indicated that the effect of 

those projects would need to be 

reflected in the build scenario 

throughout the horizon years of the 

plan, via different VMT and speed 

estimates. In this case, the commenter 

stated that all analysis years should be 

modeled and included in the conformity 

determination. 

EPA agrees with the commenter’s 

understanding that the logic given in the 

November 5, 2003 proposal for this 

change was incorrect. We agree that an 

area would have different projects and 

assumptions in later years where 

projects were added in earlier years 

(these projects would always and only 

be in the build case for any years). 

However, we still think there are limited 

cases where projects and assumptions 

for both scenarios could be the same 

such as in earlier years. EPA believes 

that if the build and no-build scenarios 

are exactly the same and are based on 

exactly the same planning assumptions, 

by definition they cannot contain 

different assumptions about growth. 

This provision is intended to only apply 

in situations when the build and nobuild scenarios are exactly the same. If 

there are any differences in the build 

and no-build scenarios, including 

differences in planning assumptions, 

speed or VMT, this provision would not 

apply. 

One commenter believed that this 

flexibility should be available through 

the interagency consultation process, 

and that EPA should modify the 

conformity regulation to allow it subject 

to agreement among affected parties 

though the interagency consultation 

process. EPA agrees that consultation 

should be used to determine when this 

flexibility applies, but no rule change is 

needed to do that. 

Finally, several commenters raised 

general concerns about the build/nobuild test and offered other suggested 

changes to the test to address these 

concerns. For example, a few 

commenters did not believe that the 

‘‘no-build’’ scenario always provides an 

40018 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

appropriate basis for conformity 

demonstrations, particularly in the 

outyears of the transportation plan. To 

address this issue, one commenter 

proposed that for all analysis years in 

the second 10 years of the transportation 

plan, the ‘‘no-build’’ scenario should be 

the ‘‘build’’ scenario from the previous 

analysis year. 

EPA agrees that there are limitations 

in the usefulness of the build/no-build 

test for assessing longer-term air quality 

impacts of highway and transit projects. 

In fact, this is the primary reason that 

the build/no-build test is an interim test 

prior to the availability of an adequate 

or approved SIP budget. EPA does not 

believe the suggested changes to the 

build/no-build test are necessary and 

would ensure protection of air quality 

during this interim period. For example, 

the suggested change proposed by one 

of the commenters could allow 

emissions increases. In addition, many 

commenters supported the flexibility to 

choose between build/no-build and 

baseline year tests, as described in 

Sections V., VI., and VII. Since these 

general comments were not germane to 

the proposal, we have included a full 

response to these comments in the 

separate response to comments 

document, which is in Public Docket 

I.D. no. OAR–2003–0049. 

D. Test Requirements for Ozone and CO 

Nonattainment Areas of Higher 

Classifications 

1. Description of Final Rule 

EPA is retaining the requirement that 

ozone and CO areas of higher 

nonattainment classifications must meet 

both the build-less-than-no-build and

less-than-baseline year tests to 

demonstrate conformity in the period 

before SIP budgets are available. This 

provision will affect moderate and 

above 1-hour and 8-hour ozone areas, 

moderate CO areas with design values 

greater than 12.7 ppm, and serious CO 

areas. This requirement is identical to 

the requirement of the existing 

conformity rule for these areas, and was 

the first of three options proposed for 

regional emissions analyses before 

adequate or approved SIP budgets are 

established. 

EPA had requested comment on the 

following proposed options for these 

areas: 

(1) Complete both the build-less-thanno-build and less-than-baseline year 

tests; 

(2) Complete either the build-lessthan-no-build or less-than-baseline year 

test; or 

(3) Require that only one of these tests 

be met and eliminate the second test as 

an option altogether. 

The first option, which EPA has 

selected for the final rule, will retain the 

current conformity rule requirement 

that such areas use both the current 

build-less-than-no-build test and the 

less-than-baseline year test. Under this 

option, emissions from the proposed 

transportation system (build) will have 

to be less than emissions from the 

existing system (no build) and less than 

emissions in 1990 (for higher 

classification 1-hour ozone and CO 

areas) or 2002 (for higher classification 

8-hour ozone areas). See the proposal 

for further background information on 

options 2 and 3 (November 5, 2003, 68 

FR 62699–62700). 

2. Rationale and Response To Comment 

Based on our review of the proposal, 

the existing requirements of the 

conformity rule, and comments 

submitted, EPA has concluded that 

option 1, the existing conformity 

requirements, will better meet the dual 

statutory requirements for ozone and CO 

areas of higher classifications. These 

areas must demonstrate that 

transportation activities not cause or 

contribute to violations of the standards 

or delay timely attainment of a standard 

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

that such activities also contribute to 

annual emissions reductions (Clean Air 

Act section 176(c)(3)(A)(iii)). 

EPA’s proposal was intended to 

explore potential alternatives in an 

effort to provide the most flexible and 

least burdensome way of meeting 

statutory requirements. When EPA first 

promulgated the transportation 

conformity rule (January 11, 1993, 58 FR 

3782), EPA determined that moderate 

and above 1-hour ozone areas and CO 

areas of higher classifications would 

have to meet both the build-less-thanno-build test and the less-than-baseline 

year test to satisfy both applicable 

statutory requirements that 

transportation activities not cause or 

contribute to violations of the standards 

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

that such activities contribute to annual 

emissions reductions (Clean Air Act 

section 176(c)(3)(A)(iii)). EPA also 

discussed our rationale for these areas 

in a July 9, 1996, proposed rule (61 FR 

36116–36117). 

Although the majority of the 

comments supported option 2, a choice 

between either the build/no-build or 

baseline year test, these commenters 

primarily supported this option out of a 

stated desire to obtain greater flexibility 

in meeting conformity requirements. No 

commenters provided any further 

rationale for the option or explained 

how the statutory requirements could be 

satisfied with only one test. In contrast, 

the commenters supporting option 1, 

continuation of the existing rule 

requirement to meet both the tests, 

provided compelling arguments 

indicating that both tests would be 

necessary to meet the statutory 

requirements. Further, comments on 

option 3 noting why either test would 

be superior provided additional 

indication that either test by itself could 

not meet both statutory obligations. In 

the face of these comments, as 

explained below EPA does not believe 

it can alter the current rule requiring the 

use of both tests. 

The totality of the comments led EPA 

to conclude that if only the baseline test 

were required, in an area where motor 

vehicle emissions were declining 

significantly as a result of technology 

improvements in vehicle engines and 

fuels, the transportation plan itself 

might not be contributing to emissions 

reductions while the area as a whole 

was still meeting the baseline test. This 

would not meet the statutory 

requirement that such transportation 

activities themselves must contribute to 

emissions reductions. In contrast, in 

ozone and CO areas of higher 

classifications, the build/no-build test 

alone would not guarantee that 

emissions from the planned 

transportation system are less than 

emissions in the baseline year, even if 

emissions from the planned 

transportation system (the build case) 

are less than the current transportation 

system (the no-build case). This could 

fail to meet the statutory requirement 

that activities not contribute to 

violations of the standard. 

Thus, based on the Agency’s 

reasoning in past conformity rules and 

the comments submitted in this 

rulemaking, EPA believes that it must 

continue to require the use of both the 

baseline year and build/no-build tests in 

ozone and CO areas of higher 

nonattainment classifications prior to 

the availability of SIP budgets in order 

to satisfy applicable statutory 

obligations. In light of this conclusion, 

EPA is not responding in detail in this 

preamble to the numerous comments 

indicating policy choices for which of 

the two tests should be chosen or how 

the choice should be made, since EPA 

is requiring the use of both tests on legal 

grounds. A full response to all 

comments is included in the separate 

response to comments document 

available in the docket for this final 

rule.

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40019

V. Regional Conformity Tests in 8-hour 

Ozone Areas That Do Not Have 1-Hour 

Ozone SIPs 

A. Description of Final Rule 

This section covers the provisions 

EPA is finalizing in today’s rule for 

regional emissions analyses in 8-hour 

ozone areas that do not have an existing 

1-hour ozone SIP with applicable 

budgets. These 8-hour ozone areas 

either were never designated 

nonattainment under the 1-hour ozone 

standard or were 1-hour ozone 

nonattainment areas that never 

submitted a control strategy SIP or 

maintenance plan with approved or 

adequate budgets. A regional emissions 

analysis is the part of a conformity 

determination that assesses whether the 

emissions produced by transportation 

activities are consistent with state, local, 

and federal air quality goals. EPA 

describes the final rule in four parts, as 

in the proposal: Conformity when 8-

hour budgets are available, conformity 

before 8-hour budgets are available, 

conformity in clean data areas, and 

general implementation of regional 

emissions tests. 

1. Conformity After 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Once a SIP for the 8-hour ozone 

standard is submitted with a budget(s) 

that EPA has found adequate or 

approved, the budget test must be used 

in accordance with § 93.118 to complete 

all future applicable regional emissions 

analyses for 8-hour conformity 

determinations. In other words, once 

EPA finds a budget from an 8-hour 

ozone SIP adequate or approves an 8-

hour ozone SIP that includes such a 

budget, the interim emissions test(s) 

will no longer apply for that precursor. 

This provision is found in § 93.109(d)(1) 

of today’s rule. 

The first 8-hour ozone SIP could be a 

control strategy SIP required by the 

Clean Air Act (e.g., rate-of-progress SIP 

or attainment demonstration) or a 

maintenance plan. However, 8-hour 

ozone nonattainment areas ‘‘are free to 

establish, through the SIP process, a 

motor vehicle emissions budget [or 

budgets] 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 

towards attainment’’ (August 15, 1997, 

62 FR 43799). A SIP submitted earlier 

than otherwise required can 

demonstrate a significant level of 

emissions reductions from the current 

level of emissions, instead of the 

specific percentage required by the 

Clean Air Act for moderate and above 

ozone areas. For example, an area could 

submit an early 8-hour ozone SIP that 

demonstrates a 5–10% reduction of 

emissions in the year 2007, from 2002 

baseline year emissions. An approvable 

early 8-hour SIP would include 

emissions inventories for all emissions 

sources for the entire 8-hour 

nonattainment area and would meet 

applicable requirements for reasonable 

further progress SIPs. For more 

information on establishing an early SIP 

and how it could be used for 

conformity, please refer to the final 8-

hour ozone implementation rule (April 

30, 2004, 69 FR 23951). 

Air quality agencies responsible for 

developing 8-hour ozone SIPs must 

consult on their development with the 

relevant state and local air quality and 

transportation agencies per § 93.105(b). 

EPA Regions are available to assist on 

an ‘‘as needed’’ basis, including 

consultation on the development of 

early 8-hour ozone SIPs. 

2. Conformity Before 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Before adequate or approved 8-hour 

ozone SIP budgets are established in 8-

hour ozone areas that do not have 1-

hour ozone SIPs, the regional emissions 

analysis is done using one or two 

interim emissions tests, depending on 

the area’s classification or designation 

as described below. These provisions 

are found in § 93.109(d)(2)–(4) of today’s 

rule. 

Marginal and below classifications 

and subpart 1 areas. These 8-hour 

ozone nonattainment areas include: 8-

hour ozone areas classified marginal 

and 8-hour ozone areas designated 

nonattainment under Clean Air Act 

subpart 1. These areas must pass one of 

the following tests in accordance with 

§ 93.119 for conformity determinations 

that occur before adequate or approved 

8-hour ozone SIP budgets are in place: 

• The build-no-greater-than-no-build 

test, or 

• The no-greater-than-2002 emissions 

test.

That is, emissions in all analysis years 

from the transportation system, as 

modified by the proposed transportation 

plan or TIP, must be less than or equal 

to emissions from either: 

• The existing transportation system 

(the ‘‘no-build’’ case) in each of those 

analysis years, or 

• The transportation system in 2002.

A discussion of the interim emissions 

tests can be found in Section IV. See 

also EPA’s April 30, 2004 final 8-hour 

ozone implementation rule (69 FR 

23951) for more information on 8-hour 

ozone areas designated under Clean Air 

Act subpart 1 (‘‘subpart 1 areas’’). 

Moderate and above classifications.

These areas include: 8-hour ozone 

nonattainment areas classified as 

moderate, serious, severe, and extreme. 

These areas must pass both of the 

following tests in accordance with 

§ 93.119 for conformity determinations 

that occur before adequate or approved 

8-hour ozone SIP budgets are in place: 

• The build-less-than-no-build test, 

and 

• The less-than-2002 emissions test. 

That is, emissions in all analysis years 

from the transportation system, as 

modified by the proposed transportation 

plan or TIP, must be less than each of 

the following comparison cases: 

• The existing transportation system 

including projects currently under 

construction (the ‘‘no-build’’ case) in 

each of those analysis years, and 

• The transportation system in 2002.

For more information regarding these 

interim emissions tests for moderate and 

above ozone areas, please see Section 

IV.D. 

3. Options for 8-Hour Ozone Areas That 

Qualify for EPA’s Clean Data Policy 

In § 93.109(d)(5) of today’s rule, EPA 

is extending the conformity rule’s 

flexibility for 1-hour moderate and 

above ‘‘clean data areas’’ to 8-hour areas 

that meet the criteria of the clean data 

policy. As described in the November 5, 

2003 proposal, EPA issued a policy 

memorandum on May 10, 1995 that 

addressed SIP requirements in a small 

number of moderate and above 1-hour 

ozone areas (entitled ‘‘Reasonable 

Further Progress, Attainment 

Demonstrations, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National 

Ambient Air Quality Standard’’). Please 

see the November 5, 2003 proposal for 

further background on EPA’s existing 

clean data policy and conformity 

options (68 FR 62700–62701). 

Clean data areas under today’s final 

rule are moderate and above ozone areas 

with three years of clean data for the 8-

hour ozone standard that have not 

submitted a maintenance plan and for 

which EPA believes it is reasonable to 

interpret the Clean Air Act’s reasonable 

further progress and attainment 

demonstration requirements so as not to 

require areas that are meeting the ozone 

standard to make certain SIP 

submissions. In addition, some subpart 

1 areas may also be eligible for the clean 

data policy if they are required to 

submit control strategy SIPs. Areas that 

qualify for EPA’s clean data policy 

40020 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

under the 8-hour standard can use one 

of the following three options to 

complete regional emissions analyses:

• The interim emissions tests, as 

described above; 

• the budget test using the adequate 

or approved motor vehicle emissions 

budgets in an 8-hour ozone SIP; or 

• the budget test using the motor 

vehicle emissions levels in the most 

recent year of clean data as budgets, if 

the state or local air quality agency 

requests that budgets be established by 

EPA’s clean data rulemaking for the 8-

hour ozone standard and EPA approves 

the request.

As stated in Phase 1 of EPA’s final 8-

hour ozone implementation rule (April 

30, 2004, 69 FR 23974), EPA intends to 

extend the existing clean data policy to 

applicable 8-hour ozone areas, and will 

respond on this issue in its future Phase 

2 final 8-hour ozone implementation 

rule. 

Please note that EPA’s clean data 

policy, and therefore today’s provision 

allowing emissions in the most recent 

year of clean data to be used as a budget, 

might not be available in any area for 

the first 8-hour conformity 

determination. Newly designated areas 

may not yet have three years of clean 

data for the 8-hour standard when the 

first conformity determination is due for 

that standard. As discussed in Section 

III., the first plan/TIP conformity 

determination is due by June 15, 2005, 

one year after the effective date of 8-

hour designations. 

4. General Implementation of Regional 

Tests 

Regional emissions analyses for ozone 

areas must address both ozone 

precursors, which are nitrogen oxides 

(NOX) and volatile organic compounds 

(VOCs) (40 CFR 93.102(b)(2)(i)). Before 

budgets are available, areas must meet 

the appropriate interim emissions test(s) 

for both VOC and NOX precursors, 

unless EPA issues a NOX waiver for the 

8-hour standard under Clean Air Act 

section 182(f). This provision is 

consistent with the conformity rule to 

date, although in today’s final rule the 

NOX waiver provision is moved to 

§ 93.119(f) (from § 93.119(d)) because of 

the reorganization of § 93.119. Once an 

adequate or approved SIP budget is 

available for the 8-hour standard, it 

must be used for regional emissions 

analyses. 

In general, if a budget is available for 

only one ozone precursor, the interim 

emissions test(s) will continue to apply 

for the other precursor. For example, 

this situation would occur when a 

reasonable further progress SIP is 

submitted with a budget for VOCs only 

(e.g., a 15% SIP), and this case is 

specifically covered by § 93.109(d)(3). In 

this example, an area would use the 

budget test for VOCs and the interim 

emissions test(s) for NOX, unless it has 

a NOX waiver as described above. 

The consultation process must be 

used to determine the models and 

assumptions for completing either the 

interim emissions tests or the budget 

test, as required by § 93.105(c)(1)(i) of 

the current rule. 

B. Rationale and Response to Comments 

The use of the budget test once 

budgets are available for an air quality 

standard is based on the requirements of 

the Clean Air Act. Once budgets have 

been found adequate or approved, the 

budget test provides the best means to 

determine whether transportation plans 

and TIPs conform to a SIP and complies 

with the statutory obligation to be 

consistent with the emissions estimates 

in SIPs, according to Clean Air Act 

section 176(c)(2)(A). Several 

commenters specifically agreed that 

once a SIP for the 8-hour ozone standard 

is submitted with a budget(s) that EPA 

has found adequate or approved, the 

budget test should be used. One of these 

commenters stated that the advantage of 

the budget test is that areas have a high 

degree of confidence in attaining and 

maintaining the standards if emissions 

are held to budget levels from SIPs 

demonstrating attainment and 

maintenance. Another of these 

commenters strongly supported 

establishing 8-hour budgets through the 

submission of early SIPs, as discussed 

above. 

Before budgets are available, the final 

rule’s interim emissions test 

requirements for 8-hour areas are 

generally consistent with requirements 

for 1-hour areas. In general, several 

commenters supported the flexibility 

provided by the test options for 8-hour 

marginal and subpart 1 areas that do not 

have 1-hour ozone SIPs. 

EPA believes that it is reasonable and 

credible to provide 8-hour ozone areas 

that are not classified moderate or above 

the same flexibility that applies under 

the 1-hour ozone standard. Several 

commenters specifically supported 

allowing these 8-hour ozone areas a 

choice between the baseline year and 

build/no-build tests. EPA determined in 

the 1997 conformity rule that either test 

could satisfy the statutory test of not 

causing or contributing to violations or 

delaying attainment in these areas, and 

the Agency believes this would 

continue to be true for new 8-hour areas, 

as discussed further below. 

A few commenters requested 

clarification that the interim emissions 

test options remain available in 

subsequent conformity determinations 

until adequate or approved budgets are 

in place. These commenters are correct 

that while no 8-hour ozone budgets are 

available, areas are free to choose either 

test for a conformity determination, 

regardless of what test was used for a 

prior conformity determination. For 

example, if an MPO within a marginal 

8-hour nonattainment makes a 

conformity determination based on the 

build-no-greater-than-no-build test, this 

would not preclude them, prior to 

adequate or approved budgets, from 

making a future conformity 

determination based on the no-greaterthan-2002 emissions test. However, 

under these final rules, the same test 

must be used for each analysis year for 

a given conformity determination. In 

other words, an MPO may not use the 

build-no-greater-than-no-build test in 

one analysis year and the no-greaterthan-2002 test in another analysis year 

within the same conformity 

determination. EPA believes that 

sufficient flexibility exists without 

mixing and matching interim emissions 

tests for different analysis years within 

one conformity determination, which is 

unnecessarily complicated and suggests 

that the area would not conform using 

one test consistently. 

One commenter advocated that state 

air agencies should have the authority to 

determine which test is used, because in 

the commenter’s view the state air 

agency would best be able to choose the 

test that ensures progress towards 

attainment. However, EPA believes that 

it is appropriate for the decision to be 

made within the interagency 

consultation process, as has been done 

to date. Given that MPOs have 

responsibility for making the conformity 

determination, and would need to set 

up the no-build network if the build-nogreater-than-no-build test is used, EPA 

believes they need to take part in 

choosing the test. State air agencies are 

insured a role in the transportation 

conformity process through interagency 

consultation, as § 93.105 of the 

conformity rule sets forth the 

requirements for state air agencies’

participation in the conformity process, 

as well as a process for resolving 

conflicts. The state air agency role is 

also addressed in the preamble to the 

1993 rule (November 24, 1993, 58 FR 

62201). EPA continues to believe that 

the conflict resolution process provides 

a mechanism for the state air agency to 

elevate issues to the governor if they 

cannot be resolved by state agency 

officials, and that the process facilitates 

collaboration which is essential to 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40021

cooperative transportation and air 

quality planning. Therefore, EPA is not 

changing the final rule in response to 

this comment. 

A few commenters supported one or 

the other of the proposed interim 

emissions tests in 8-hour marginal or 

subpart 1 areas. One commenter 

supported elimination of the build-nogreater-than-no-build test because no 

specific allowable level or limit is 

placed on emissions levels associated 

with the no-build scenario, while the 

no-greater-than-2002 test compares 

future emissions to a specified 

allowable level. However, another 

commenter made an opposing argument 

against the use of the no-greater-than2002 test arguing that if an area was not 

attaining the 8-hour ozone standard in 

2002, then the no-greater-than-2002 test 

allows emissions to continue at a level 

that will not bring the area into 

attainment. A third commenter 

suggested that prior to adequate or 

approved SIP budgets, emissions should 

be held to as low a level as possible to 

prevent an area from proceeding with 

transportation projects that may 

preclude them from meeting the 8-hour 

ozone standard in the future. 

Since the transportation conformity 

rule was promulgated on November 24, 

1993 (58 FR 62188), the build-less-thanno-build and less-than-1990 tests have 

been part of the transportation 

conformity rule as appropriate tests in 

meeting the conformity requirements of 

the Clean Air Act prior to the 

availability of SIP budgets. In the 

August 15, 1997 amendments (62 FR 

43780), the transportation conformity 

rule was amended to allow ozone areas 

not classified moderate or higher to 

meet either the build-less-than-no-build 

test or the no-greater-than-1990 test. Our 

rationale for this change is found in the 

proposed rulemaking for those 

amendments (July 9, 1996, 61 FR 

36112). 

Though EPA has updated the tests in 

today’s rule, our rationale for allowing 

8-hour marginal and subpart 1 areas to 

choose between the two tests remains 

the same as described in the 1996 

proposal. When there are no adequate or 

approved budgets, EPA believes that 

either test meets the Clean Air Act 

requirement that transportation 

activities will not cause new violations, 

increase the frequency or severity of 

existing violations, or delay timely 

attainment. In contrast to ozone areas of 

higher classifications, transportation 

activities in these areas are not required 

to contribute to emissions reductions 

per Clean Air Act section 

176(c)(3)(A)(iii).

Though EPA considered additional 

options for moderate and above 8-hour 

ozone areas as discussed in Section 

IV.D., the final rule is consistent with 

requirements for 1-hour ozone areas. In 

8-hour nonattainment areas classified 

moderate or above, EPA believes the 

build-less-than-no-build and the lessthan-2002 tests together support the 

determination that a transportation 

plan, TIP, or project will not cause new 

violations, increase the frequency or 

severity of existing violations, or delay 

attainment. In addition, these tests 

together demonstrate that plans and 

TIPs contribute to emissions reductions 

required by section 176(c)(3)(A)(iii) of 

the Clean Air Act. Additional 

discussion of the rationale for both tests 

in these areas is also found in Section 

IV.D. 

EPA is also continuing to provide 

more choices to areas that qualify for 

EPA’s clean data policy. As EPA intends 

to include the clean data policy in 

EPA’s Phase 2 final 8-hour ozone 

implementation rule, EPA is including 

the conformity options for such areas in 

today’s conformity rule. These 

provisions will be able to be used once 

EPA has found that an area is a clean 

data area for the 8-hour standard 

pursuant to the regulations the Agency 

intends to promulgate under Phase 2 of 

the 8-hour implementation rule. See 

EPA’s previous discussion and rationale 

for the conformity clean data options 

from the preamble to the 1996 proposed 

and 1997 final transportation 

conformity rule amendments (July 9, 

1996, 61 FR 36116; and August 15, 

1997, 62 FR 43784–43785, respectively). 

Two commenters supported extending 

the clean data policy to qualifying 8-

hour ozone areas. One reasoned that 

conformance with budgets constrained 

by emissions levels during years in 

which the area demonstrated attainment 

should not cause or contribute to 

nonattainment, and thus meeting any 

one of the tests for clean data areas 

should be sufficient to demonstrate 

conformity. 

However, two commenters stated that 

EPA should not apply a ‘‘clean data 

policy’’ to ozone areas classified as 

moderate or above because Clean Air 

Act sections 172 and 175A require a 

completed SIP containing measures that 

must be implemented if the area 

backslides into nonattainment, and a 

maintenance plan if the area seeks to 

avoid implementing some elements of 

its nonattainment plan. 

In today’s final rule, EPA is not 

making changes to its existing clean 

data policy, nor to the conformity 

process for clean data areas. EPA is 

merely extending the conformity 

flexibility that 1-hour ozone clean data 

areas have to the 8-hour ozone clean 

data areas. EPA believes this is 

appropriate since the Agency intends to 

extend the clean data policy to 8-hour 

areas for SIP purposes in Phase 2 of the 

final 8-hour ozone implementation rule. 

EPA will respond to all comments on 

the appropriateness of that extension in 

the final action on Phase 2 of the final 

8-hour implementation rule. 

Finally, one commenter wanted EPA 

to issue VOC waivers for areas that are 

NOX limited, so they can focus on 

getting NOX reductions. However, 

though section 182(f) of the Clean Air 

Act specifically provides that EPA could 

waive NOX requirements in certain 

areas, the Clean Air Act provides no 

such flexibility with respect to VOCs. 

Since VOCs are clearly an ozone 

precursor, ozone areas must 

demonstrate conformity to VOC levels 

that provide for attainment and 

maintenance to prevent potential future 

violations, even in areas that may not 

need additional VOC reductions to 

attain. EPA has no ability to offer any 

provision to give areas VOC waivers. 

VI. Regional Conformity Tests in 8-

Hour Ozone Areas That Have 1-Hour 

Ozone SIPs 

A. Description of Final Rule 

This section covers how regional 

emissions analyses must be done in 8-

hour ozone areas with an existing 1-

hour ozone SIP that covers either part or 

all of the 8-hour ozone nonattainment 

area. The regulatory text in § 93.109(e) 

provides a general overview of when the 

budget test and interim emissions tests 

apply in 8-hour ozone nonattainment 

areas with adequate or approved 1-hour 

ozone SIP budgets. As in Section V., 

EPA describes the final rule provisions 

in four parts: conformity when 8-hour 

budgets are available, conformity before 

8-hour budgets are available, conformity 

in clean data areas, and general 

implementation of regional emissions 

tests. 

1. Conformity After 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Once a SIP for the 8-hour ozone 

standard is submitted with budget(s) 

that EPA has found adequate or 

approved, the budget test with the 

budgets from the 8-hour ozone SIP must 

be used in accordance with § 93.118 to 

complete the regional emissions 

analysis for 8-hour conformity 

determinations. The first 8-hour ozone 

SIP could be a control strategy SIP 

required by the Clean Air Act (e.g., rateof-progress SIP or attainment 

demonstration). The first SIP could also 

40022 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

be submitted earlier and demonstrate a 

significant level of emission reductions 

from the current level of emissions, as 

described in Section V.A.1. Any existing 

1-hour ozone SIP budgets and/or 

interim emissions tests will no longer be 

used for conformity for either NOX or 

VOCs once an adequate or approved 8-

hour SIP budget is established for such 

a precursor. State, local, and federal air 

quality and transportation agencies 

must consult on the development of 8-

hour ozone SIPs including their budgets 

as appropriate, pursuant to § 93.105 of 

the conformity rule. 

2. Conformity Before 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Under today’s final rule, all 8-hour 

areas with adequate or approved 1-hour 

budgets must use these budgets for 8-

hour conformity before 8-hour budgets 

are available, unless it is determined 

through the interagency consultation 

process that using the interim emissions 

tests is more appropriate for meeting 

Clean Air Act requirements. In today’s 

rule, the budget test using the existing 

1-hour ozone SIP budgets fulfills the 

regional emissions analysis requirement 

for the 8-hour ozone standard, rather 

than the 1-hour ozone standard. Please 

note that the 1-hour budgets are to be 

used as a proxy for 8-hour budgets. 

Conformity for the 1-hour and 8-hour 

ozone standards will not apply at the 

same time, according to EPA’s April 30, 

2004 final 8-hour ozone implementation 

rule, as described in Section III. of 

today’s action. 

There are four potential scenarios into 

which areas covered by this section can 

be categorized: 

• Scenario 1: Areas where the 8-hour 

ozone area boundary is exactly the same 

as the 1-hour ozone area boundary; 

• Scenario 2: Areas where the 8-hour 

boundary is smaller than the 1-hour 

boundary, (i.e., the 8-hour area is 

completely within the 1-hour area); 

• Scenario 3: Areas where the 8-hour 

boundary is larger than the 1-hour 

boundary (i.e., the 1-hour area is 

completely within the 8-hour area); and 

• Scenario 4: Areas where the 8-hour 

boundary partially overlaps the 1-hour 

area boundary.

EPA has posted diagrams of these four 

boundary scenarios for further 

clarification on the transportation 

conformity Web site. Please note that 

scenarios are determined according to 

how the entire 8-hour nonattainment 

area relates to the entire 1-hour 

nonattainment or maintenance area(s). 

For example, in a multi-state 8-hour 

area, the area’s scenario and 

corresponding conformity requirements 

are based on the entire 8-hour area 

boundary, rather than on each state’s 

portion of the 8-hour area. State and 

local agencies can consult with EPA and 

DOT field offices to determine which 

scenario applies to a given 8-hour 

nonattainment area. 

The following paragraphs describe 

how regional conformity tests are 

applied in the four boundary scenarios, 

as well as the circumstances under 

which another test(s) may be 

appropriate. Please see A.4. of this 

section for further information regarding 

when another test may be appropriate 

for meeting Clean Air Act requirements. 

EPA will post more detailed 

implementation guidance on its 

transportation conformity website for 

conformity determinations in new 

standard areas, including 8-hour ozone 

areas with 1-hour SIP budgets and 

multi-state/multi-MPO nonattainment 

areas. Please also see Section I.B.2. of 

this notice for information regarding 

EPA’s conformity Web site. 

Scenario 1: Areas where 8-hour and 1-

hour ozone boundaries are exactly the 

same. In this case, the 8-hour and 1-

hour ozone boundaries cover exactly the 

same geographic area. Such an area 

could be formed from a single 1-hour 

area, or more than one 1-hour area, as 

long as the entire 8-hour area boundary 

is exactly the same as the boundary of 

the previous 1-hour area or areas. 

In these areas, conformity must 

generally be demonstrated using the 

budget test according to § 93.118 with 

the 1-hour SIP budgets, as described in 

A.4. of this section. The regulatory text 

in § 93.109(e)(2)(i) covers Scenario 1 

areas. The interagency consultation 

process would be used to clarify the 1-

hour budget(s) for the 8-hour area. The 

interim emissions test(s) would only be 

used if it is determined through the 

consultation process that an adequate or 

approved 1-hour budget is not 

appropriate for a given year(s) in a 

regional emissions analysis, as 

explained in A.4. of this section and 

§ 93.109(e)(2)(v) of the final rule. EPA 

will post on its website implementation 

guidance for conducting 8-hour 

conformity determinations in multijurisdictional areas, including Scenario 

1 areas with multiple states, MPOs, etc. 

Please see Section I.B.2. of this notice 

for information regarding EPA’s 

conformity website.

Scenario 2: Areas where the 8-hour 

ozone boundary is smaller than and 

within the 1-hour ozone boundary. In 

this case, the 8-hour nonattainment area 

is smaller than and completely 

encompassed by the 1-hour 

nonattainment boundary. In these areas, 

conformity must generally be shown 

using one of the following versions of 

the budget test: 

• The budget test using the subset or 

portion(s) of existing adequate or 

approved 1-hour ozone SIP budgets that 

cover the 8-hour nonattainment area, 

where such portion(s) can be 

appropriately identified; or 

• The budget test using the existing 

adequate or approved 1-hour ozone SIP 

budgets for the entire 1-hour 

nonattainment area. However, in this 

case any additional emissions 

reductions beyond those addressed by 

control measures in the 1-hour SIP 

budgets need to pass the budget test and 

must come from within the 8-hour 

nonattainment area.

The budget test would be completed 

according to the requirements in 

§ 93.118, as described in A.4. of this 

section. The regulatory text in 

§ 93.109(e)(2)(ii)(A) and (B) reflects 

these two choices. Though the 

November 5, 2003 proposed rule 

included both choices in one paragraph, 

today’s rule separates them into 

different regulatory subparagraphs 

simply for ease of readability. 

Once an area selects either of these 

budget test options, it must be used 

consistently for each analysis year of a 

given conformity determination. EPA 

believes that to do otherwise would be 

unnecessarily complicated and would 

imply that one test option used 

consistently for all analysis years may 

not demonstrate conformity. The 

interim emissions test(s) would only be 

used if it is determined through the 

consultation process that an adequate or 

approved 1-hour budget is not 

appropriate for a given year(s) in the 

regional emissions analysis, as 

explained in A.4. of this section and 

§ 93.109(e)(2)(v) of the final rule. 

As described in the November 2003 

proposal, the first budget test option is 

available to an area if it is possible to 

determine what portion of the 1-hour 

budget applies to the 8-hour area. In that 

case, that portion can be used as the 

budget for the 8-hour area. Determining 

such a budget would be straightforward, 

for example, if the budget corresponds 

directly with an on-road mobile 

inventory for the 1-hour ozone SIP that 

was calculated by county, and the 

portion to be subtracted is a specific 

county that is not part of the 8-hour 

ozone area. However, where the 1-hour 

SIP does not clearly specify the amount 

of emissions in the portion of the 1-hour 

ozone area not covered by the 8-hour 

ozone area, this method may not be 

available. The consultation process 

would be used to determine whether 

using a portion of a 1-hour ozone SIP 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40023

budget is appropriate and feasible, and 

if so, how deriving such a portion 

would be accomplished. 

In the second budget test option, a 

conformity determination based on the 

entire 1-hour ozone budget would 

include a comparison between the onroad regional emissions produced in the 

entire 1-hour ozone area and the 

existing 1-hour ozone budgets. 

However, if additional emissions 

reductions are required to meet 

conformity beyond those produced by 

control measures in the 1-hour SIP 

budgets, only reductions within the 8-

hour ozone nonattainment area can be 

included in the regional emissions 

analysis. If conformity cannot be 

determined on schedule using either 

budget test option, only the 8-hour 

ozone nonattainment area would be in 

a conformity lapse. 

Scenario 3: Areas where the 8-hour 

ozone boundary is larger than the 1-

hour ozone boundary. This scenario will 

result when an entire 1-hour ozone 

nonattainment or maintenance area is 

contained within a larger 8-hour ozone 

area. For example, a Scenario 3 area 

would result when an 8-hour area is 

formed from an existing 1-hour area 

plus an additional county or counties 

that were not covered by the 1-hour 

standard. In these areas, the budgets 

from the previous 1-hour ozone area 

will not cover the entire 8-hour 

nonattainment area. However, 

conformity must consider regional 

emissions for the entire 8-hour ozone 

nonattainment area. 

Therefore, in these areas, conformity 

must generally be demonstrated using 

the budget test based on the 1-hour 

ozone SIP budgets for the 1-hour ozone 

area, plus the interim emissions test(s) 

for one of the following: 

• The portion of the 8-hour ozone 

nonattainment area not covered by the 

1-hour budgets; 

• The entire 8-hour ozone 

nonattainment area; or 

• The entire portion of the 8-hour 

ozone nonattainment area within an 

individual state, in the case where 1-

hour SIP budgets are established for 

each state in a multi-state 

nonattainment area.

The budget test would be completed 

according to the requirements in 

§ 93.118, as described in A.4. of this 

section. The interim emissions tests 

would only be used instead of the 1-

hour budget if it is determined through 

the consultation process that an 

adequate or approved 1-hour budget is 

not appropriate for a given year in the 

regional emissions analysis, as 

explained in A.4. of this section and 

§ 93.109(e)(2)(v) of the final rule. The 

regulatory text in § 93.109(e)(2)(iii)(A) 

and (B) reflects requirements for 

Scenario 3 areas. EPA notes that the 

final rule separates Scenario 3 and 4 

area test requirements in the regulation 

for easier implementation. 

The final rule’s options for interim 

emissions tests are intended to give 

areas the flexibility to continue to 

implement conformity as they have 

under the 1-hour standard. EPA is 

clarifying this flexibility related to 

multi-state areas in the final rule since 

it was intended by the proposal and 

supported by public comments 

received. 

For example, if an 8-hour multi-state 

nonattainment area with multiple MPOs 

has separate adequate or approved 1-

hour budgets for each state, the MPOs 

would continue to determine 

conformity to their state’s 1-hour 

budgets. In this special case where 

states and MPOs want to continue to 

work independently under the 8-hour 

standard, the budget test would be 

completed with applicable 1-hour SIP 

budgets for each state. In addition, the 

interim emissions test(s) would be done 

for either: 

• any portion of a state’s 8-hour 

nonattainment area that is not covered 

by a state’s 1-hour SIP budget; or 

• the entire portion of the 8-hour 

nonattainment area covered by that 

state.

EPA notes that the interim emissions 

test(s) could also be done for the entire 

8-hour nonattainment areas under this 

final rule in this example. However, 

doing so may not allow each MPO in 

this example to develop transportation 

plans and TIPs and conformity 

determinations independently.

Rather than include all the 

possibilities of this type and others in 

today’s preamble, EPA will post 

implementation guidance on its 

transportation conformity Web site for 

conducting 8-hour conformity 

determinations with 1-hour SIP budgets, 

including determinations in multi-state 

and multi-MPO nonattainment areas. 

Please see Section I.B.2. of this notice 

for information regarding EPA’s 

conformity Web site. In any case, 

whether one or both interim emissions 

tests is required depends on the area’s 

classification or whether an area is a 

subpart 1 area, as described in Section 

V. of today’s preamble. 

EPA acknowledges that there may be 

cases where it is difficult to model the 

remaining portion of the 8-hour ozone 

area separately, e.g., in an area where 

the remaining 8-hour ozone area is a 

ring of counties around the 1-hour 

ozone area. In this case, an area may 

choose to complete the interim 

emissions test(s) for the entire 8-hour 

ozone area, rather than just the portion 

not covered by the 1-hour ozone 

budgets. Once an area selects a 

particular interim emissions test(s) and 

geographic coverage for such test(s), 

these choices must be applied 

consistently for all regional analysis 

years in a given conformity 

determination. For example, a marginal 

8-hour ozone area that is larger than the 

1-hour ozone area with one applicable 

1-hour SIP can complete the regional 

emissions analysis by meeting the 

budget test for the 1-hour ozone 

nonattainment area and the no-greaterthan-2002 test for the remaining portion 

of the 8-hour ozone area for all analysis 

years. 

The consultation process should also 

be used to select analysis years for 

performing modeling where both the 

budget test (§ 93.118) and interim 

emissions test(s) (§ 93.119) are used. 

Sections 93.118(d) and 93.119(g) of the 

conformity rule both require the last 

year of the transportation plan and an 

intermediate year(s) to be analysis years 

where modeling is completed. However, 

the analysis years for the short-term may 

be different for the budget test and 

interim emissions tests in some cases. 

For example, § 93.118 requires modeling 

for the budget test to be completed for 

the attainment year if it is within the 

timeframe of the transportation plan; 

§ 93.119 requires the first analysis year 

for the interim emissions tests to be 

within the first five years of the 

transportation plan. The consultation 

process can be used to select analysis 

years that satisfy both the budget and 

interim emissions test requirements as 

appropriate to avoid multiple modeling 

analyses in these cases. 

Scenario 4: Areas where the 8-hour 

ozone boundary overlaps with a portion 

of the 1-hour ozone boundary. This 

scenario results when 1-hour and 8-hour 

boundaries partially overlap. For 

example, a Scenario 4 area could be an 

8-hour area formed from a portion of 

one or more 1-hour areas plus new 

counties that were not covered by the 1-

hour standard. As in the previous 

scenarios, these areas must generally 

use existing 1-hour budgets whenever 

feasible to determine conformity, plus 

the interim emissions test(s) when a 

portion of the 8-hour nonattainment 

area is not covered by existing 1-hour 

budgets. 

In Scenario 4 areas, conformity must 

generally be demonstrated using the 

budget test based on the portion of the 

1-hour ozone SIP budget(s) that covers 

both the 1-hour and 8-hour areas, plus 

40024 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

the interim emissions test(s) for one of 

the following: 

• The portion of the 8-hour ozone 

nonattainment area not covered by the 

portion of the 1-hour budgets; 

• the entire 8-hour ozone 

nonattainment area; or 

• the entire portion of the 8-hour 

ozone nonattainment area within an 

individual state, in the case where 

separate 1-hour SIP budgets are 

established for each state in a multistate nonattainment area.

EPA has also clarified in the regulatory 

text that only the budget test would be 

completed in the limited case where 

portions of 1-hour SIP budgets cover the 

entire 8-hour nonattainment area or 

portions thereof. Whatever the case, the 

budget test would be completed 

according to the requirements in 

§ 93.118, as described in A.4. of this 

section. The regulatory text in 

§ 93.109(e)(2)(iv)(A) and (B) reflect 

Scenario 4 area requirements. EPA again 

notes that the final rule separates 

Scenario 3 and 4 area test requirements 

for easier implementation.

The interim emissions tests would be 

used instead of a 1-hour budget only if 

it is determined through the 

consultation process that an adequate or 

approved 1-hour budget is not 

appropriate for a given year in the 

regional emissions analysis, or if it is 

not possible to determine what portion 

of the 1-hour budgets apply to the 8-

hour area, as described in A.4. of this 

section and § 93.109(e)(2)(v) of the final 

rule. 

As described for Scenario 3 above, the 

final rule is intended to give areas the 

flexibility to continue to implement 

conformity as they have under the 1-

hour standard. EPA will post 

implementation guidance on its 

transportation conformity Web site for 

conformity determinations in Scenario 4 

and other 8-hour areas. Please see 

Section I.B.2. of this notice for 

information regarding EPA’s conformity 

Web site. 

As described for Scenario 3, the 

consultation process should be used to 

select the analysis years where both the 

budget test (§ 93.118) and interim 

emissions test(s) (§ 93.119) are used. It 

should be possible to choose analysis 

years in most cases that satisfy both the 

budget and interim emissions test 

requirements for areas using both tests. 

Whether one or both interim emissions 

tests is required in any case depends on 

the area’s classification or whether an 

area is a subpart 1 area, as described in 

Section V. of today’s preamble. 

3. Options for 8-Hour Ozone Areas That 

Qualify for EPA’s Clean Data Policy 

As described in Section V.A.3., EPA 

is extending the conformity rule’s 

flexibility for 1-hour ozone ‘‘clean data 

areas’’ to 8-hour ozone areas that meet 

the criteria of the clean data policy. 

Clean data areas for the 8-hour ozone 

standard with adequate or approved 1-

hour ozone SIP budgets must generally 

use one of the following three options 

to complete conformity: 

• The budget test using the adequate 

or approved motor vehicle emissions 

budgets in a SIP for the 8-hour ozone 

standard; 

• The budget and/or interim 

emissions tests using existing 1-hour 

ozone SIP budgets and/or applicable 

interim emissions tests, as described in 

A.2. of this section for different 

scenarios of 1-hour and 8-hour ozone 

nonattainment boundaries; or 

• The budget test using the motor 

vehicle emissions level in the most 

recent year of clean data as budgets, if 

such budgets are established by the EPA 

rulemaking that determines an area to 

have clean data for the 8-hour ozone 

standard.

See the regulatory text for these options 

in § 93.109(e)(4), and preamble Section 

V.A.3. for more information about clean 

data areas. 

4. General Implementation of Regional 

Tests 

Under the existing conformity rule, 

regional emissions analyses for ozone 

areas must address NOX and VOC 

precursors (40 CFR 93.102(b)(2)(i)). 

Areas must also complete the interim 

emissions test(s) for NOX as required by 

§ 93.119 if the only SIP available is a 

reasonable further progress SIP for 

either the 1-hour or 8-hour standard that 

contains a budget for VOCs only (e.g., a 

15% SIP). In all cases where areas use 

the interim emissions test(s), both 

precursors must be analyzed unless EPA 

issues a NOX waiver for the 8-hour 

standard for an area under Clean Air 

Action section 182(f). This is consistent 

with the conformity rule to date, 

although today’s final rule moves these 

provisions to § 93.119(f) due to 

reorganization of § 93.119. See 

§ 93.109(e)(3) for this regulatory text. 

The consultation process must be 

used to determine the models and 

assumptions for completing the budget 

test and/or the interim emissions test(s), 

as required by § 93.105(c)(1)(i) of the 

rule. The consultation process must also 

be used to decide if the interim 

emissions test(s) are more appropriate to 

meet the Clean Air Act requirements 

than existing adequate or approved 1-

hour budgets before 8-hour ozone SIPs 

are submitted. 

General implementation of the budget 

test with 1-hour budgets. The budget test 

requirements in § 93.118 for 8-hour 

areas will be generally implemented in 

the same manner as in 1-hour areas, 

with a few exceptions. First, as 

described above, the geographic area 

covered by the 8-hour standard may be 

different than that covered by the 1-hour 

standard and SIP budgets in some cases. 

Second, the years for which regional 

modeling is performed will slightly 

differ. 

Areas that use 1-hour budgets for their 

8-hour conformity determinations will 

need to determine the modeling analysis 

years that apply for the 8-hour standard 

per § 93.118(d). Under this section, a 

modeling analysis must be completed 

for the last year of the transportation 

plan, the attainment year for the 

relevant pollutant and standard, and an 

intermediate year(s) such that analysis 

years are not more than 10 years apart. 

The attainment year analysis is to be for 

an area’s attainment year for the 8-hour 

standard, which will be different than 

the attainment year under the 1-hour 

standard. The area must then calculate 

emissions in the analysis years from the 

existing and planned transportation 

system. 

Once modeling is completed per 

§ 93.118(d)(2), 8-hour areas using 1-hour 

SIPs will also demonstrate consistency 

with 1-hour SIP budgets according to 

§ 93.118(b), except for cases where it is 

determined that 1-hour SIP budgets are 

not appropriate through the 

consultation process as described above. 

According to § 93.118(b) of today’s final 

rule as described in Section XXIII., 

consistency with 1-hour budgets must 

be shown for all 1-hour budget years 

that are within the timeframe of the 

transportation plan, the 8-hour 

attainment year (if in the timeframe of 

the plan), the last year of the plan, and 

an intermediate year(s) so that all years 

are not more than 10 years apart. 

Emissions projected for each analysis 

year must be within the budgets in the 

1-hour SIP from the most recent prior 

year. Interpolation can be used between 

analysis years for demonstrating 

consistency with budgets, just as has 

been done under the 1-hour standard. 

For example, suppose an area 

designated nonattainment for the 8-hour 

ozone standard with an 8-hour 

attainment date of 2010 has the 

following 1-hour SIP budgets: 

• 2005 rate-of-progress budgets for 

NOX and VOCS, 

• 2007 rate-of-progress budgets for 

NOX and VOCS, and 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40025

12EPA has previously interpreted that only 

attainment budgets apply beyond the attainment 

year, in cases where ozone areas also have budgets 

for rate-of-progress SIPs.

• 2007 attainment demonstration 

budgets for NOX and VOCS. 

By 2005, this area would determine 

conformity for its 2005–2025 

transportation plan and its TIP, and the 

conformity determination would be 

accomplished as follows: 

• 2005 budget test, using the 2005 

ROP budgets; 

• 2007 budget test, using both 2007 

ROP and attainment budgets; 

• 2010 budget test, using the 2007 

attainment budgets; 12

• 2020 budget test, using the 2007 

attainment budgets; and 

• 2025 budget test, using the 2007 

attainment budgets. 

As described in § 93.118(d)(2), 

emissions for the year 2005 could be 

generated with a regional emissions 

analysis, or could be interpolated if the 

area has run a regional emissions 

analysis for an earlier year. Emissions 

for the year 2007 can also be 

interpolated or the area could choose to 

model emissions for this year. A 

regional modeling analysis must be 

done for the year 2010 (the 8-hour 

attainment year), any year between 2015 

and 2020 for the intermediate year (in 

the above example, 2020 is the 

intermediate year), and the year 2025 

(the last year of the transportation plan) 

as required by § 93.118(d)(2). 

As stated in A.1. of this section, once 

adequate or approved 8-hour SIP 

budgets are established for a given 

precursor, the budget test would be 

completed with only the 8-hour SIP 

budgets for that precursor, rather than 

the 1-hour SIP budgets.

When might 1-hour SIP budgets not 

be the most appropriate test for 8-hour 

ozone conformity? Though EPA 

anticipates that exceptions to the use of 

the 1-hour budgets will be infrequent, 

there are some cases where using 

another test(s) may be more appropriate 

to meet Clean Air Act requirements. 

EPA expects such limited cases to be 

supported and documented in the 8-

hour conformity determination for a 

given area. EPA notes that an adequate 

or approved 1-hour SIP budget cannot 

be considered inappropriate simply 

because it is difficult to pass for 8-hour 

conformity purposes. In addition, as 

noted below and consistent with past 

conformity precedent, 1-hour SIP 

budgets cannot be discarded simply 

because they are based on older 

planning assumptions or emissions 

models, unless through interagency 

consultation it is determined that a 

different emissions test(s) is more 

appropriate to ensure that air quality is 

not worsened for all 8-hour areas and 

that reductions are achieved in certain 

ozone areas. 

The most likely example of when the 

budgets may not be the most 

appropriate test is where a 1-hour SIP 

budget is not currently used in 

conformity determinations for the 1-

hour standard, and thus is currently not 

relied upon to measure whether 

transportation activities are consistent 

with Clean Air Act requirements. Such 

a case would happen when the SIP 

budget year is no longer in the 

timeframe of the transportation plan and 

there is no requirement to meet the 

budget test prior to the year in which 

the next 1-hour SIP budget is 

established (e.g., the SIP established a 

budget for the 1-hour attainment year, 

but that attainment year has passed and 

budgets for future years are available). 

For example, suppose a 1-hour 

maintenance area attained in 1999 and 

has a maintenance plan with budgets for 

2009. If the area has an 8-hour 

attainment date of 2007, it would have 

to compare emissions in 2007 to the 

budgets from the most recent prior year, 

which would be the attainment budgets 

for the year 1999. In this case, the 

budgets are not currently in use for the 

1-hour standard, and it may be more 

appropriate for an area to use the 2002 

baseline year test for the 2007 analysis 

year, since the 2002 baseline could be 

lower and therefore more protective 

than the 1999 budgets. However, the 

maintenance area would use its 2009 

budgets in the 1-hour maintenance plan 

to show 8-hour conformity for 2009 and 

all future analysis years. 

Another example of when another test 

would be more appropriate than 

existing adequate or approved 1-hour 

SIP budgets would be in certain 

Scenario 4 areas where it is impossible 

to determine which portion of a 1-hour 

SIP budget covers an 8-hour 

nonattainment area. In this case, 

applying the budget test with 1-hour SIP 

budgets is not feasible, and 

consequently, only the interim 

emissions test(s) are available for such 

unique areas. 

As described in Section V., when a 

SIP budget is not established a moderate 

or above ozone area would need to pass 

both interim emissions tests. Areas 

classified as marginal or designated 

under Clean Air Act subpart 1 can 

choose between the two tests when no 

budgets apply. However, in these cases 

where a 1-hour budget is available but 

the area demonstrates it is not the most 

appropriate test, EPA believes that the 

no-greater-than-2002 baseline year test 

would most likely be used. EPA believes 

it is extremely unlikely that the build/

no-build test alone would ever be a 

more appropriate test than the budget 

test with existing 1-hour SIP budgets 

that are currently used for conformity 

purposes. See B.2. of this section below 

for further information regarding EPA’s 

rationale for using 1-hour budgets and 

what is appropriate for meeting Clean 

Air Act requirements. 

Areas must use the consultation 

process to decide whether the 

applicable interim emissions tests are 

more appropriate to meet Clean Air Act 

requirements than the 1-hour budgets, 

pursuant to § 93.109(e)(2)(v) of the final 

rule. In areas where another test(s) is 

used, areas must also justify selection of 

the specific test(s) chosen as being more 

appropriate for meeting Clean Air Act 

requirements than the available 1-hour 

SIP budgets. This decision should be 

discussed with all interagency 

consultation parties and documented in 

the conformity determination for the 8-

hour standard. 

B. Rationale and Response to Comments

1. Conformity After 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Several commenters strongly 

supported establishing budgets for the 

8-hour standard through the submission 

of early SIPs. EPA agrees that Clean Air 

Act section 176(c) is met when the 

budget test is used, once budgets are 

available for an air quality standard. 

Once 8-hour ozone budgets have been 

found adequate or approved, the budget 

test provides the best means to 

determine whether transportation plans 

and TIPs conform to an 8-hour ozone 

SIP and comply with the statutory 

obligation to be consistent with the 

emissions estimates in SIPs, according 

to Clean Air Act section 176(c)(2)(A). A 

few commenters suggested that EPA 

urge states to establish budgets for the 

8-hour standard early because of the 

potential complications without 8-hour 

budgets where the 8-hour boundary 

differs from the 1-hour boundary. EPA 

agrees that state and local agencies can 

choose to establish an early SIP for 

conformity purposes, however, each 

area needs to consider the benefits of an 

early SIP and impacts on state and local 

resources. 

One commenter suggested that ozone 

areas should be required to consider 

emissions in the portion of the 8-hour 

area that is outside the boundary of the 

1-hour standard when developing 8-

hour SIPs. EPA agrees. In fact, they are 

required to consider these emissions 

because the SIP addressing the 8-hour 

standard must cover the entire 8-hour 

40026 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

nonattainment area. Please note that the 

conformity rule does not change 

existing SIP requirements and policy 

that will apply for the new standards. 

Another commenter recommended 

that once 8-hour budgets are adequate or 

approved, areas should do conformity to 

both the 1-hour and the 8-hour 

standards. The commenter believed that 

doing conformity to both standards 

would not represent a significant 

hurdle. EPA has decided, however, to 

revoke the 1-hour standard when the 8-

hour standard conformity grace period 

ends, one year after the effective date of 

8-hour area designations. Once the 1-

hour standard is revoked, conformity 

will no longer apply for that standard as 

a matter of law. Conformity therefore 

will only apply for one ozone standard 

at a time. Please see Section III. for more 

information regarding the conformity 

grace period and revocation of the 1-

hour standard. 

2. Conformity Before 8-Hour Ozone SIP 

Budgets Are Adequate or Approved 

Though EPA proposed that areas 

could choose among several options 

before 8-hour budgets are available, 

today’s rule requires the use of 1-hour 

SIP budgets, where available and 

appropriate, as a direct result of 

consideration of all of the relevant 

comments received on this issue. 

Section 176(c) of the Clean Air Act 

requires that transportation activities 

may not cause new violations, increase 

the frequency or severity of existing 

violations, or delay timely attainment. 

Using 1-hour budgets where available 

and appropriate ensures that air quality 

progress to date is maintained, air 

quality will not be worsened and 

attainment of the 8-hour standard will 

not be delayed because of emissions 

increases. 

Once EPA finds a budget adequate or 

approves the SIP that includes it, the 

budget test provides the best means to 

determine whether transportation plans 

and TIPs meet Clean Air Act conformity 

requirements. EPA now believes this 

principle applies with respect to the 1-

hour budgets in 8-hour nonattainment 

areas as well: in most cases, EPA 

concludes that the 1-hour budgets are 

the best test for determining conformity 

to the 8-hour standard before 8-hour 

ozone budgets are available because the 

1-hour budgets have led to current air 

quality improvements. A couple of 

commenters noted that attaining the 1-

hour standard is a milestone toward 

attaining the 8-hour standard. Some 

commenters mentioned that most 1-

hour budgets in major urban areas are 

appropriate to use, especially in serious 

and above ozone areas that have budgets 

that have recently been updated with 

the MOBILE6 emissions factor model. 

A number of commenters described 

how emissions could increase if areas 

use the interim emissions tests instead 

of their 1-hour budgets. Emissions could 

increase if areas use the 2002 baseline 

year test, commenters stated, because 

2002 motor vehicle emissions are 

significantly higher than existing 1-hour 

budgets in many cases. Commenters 

provided an analysis of 2002 baseline 

emissions estimates compared to 1-hour 

ozone budget levels for 12 major 

metropolitan areas to illustrate that the 

2002 motor vehicle emissions were 

significantly higher than the 1-hour 

budgets in these areas. For one major 

metropolitan area that had established 

MOBILE6-based attainment budgets for 

2007, the 2002 baseline year test based 

on MOBILE6 would result in allowable 

VOC and NOX emissions increasing by 

44% and 56%, respectively, above the 

budget levels for the 1-hour ozone 

attainment demonstration. A second 

commenter corroborated this finding 

with data that showed VOCs could 

increase 47% and NOX could increase 

33% if 2002 emissions were used 

instead of the area’s attainment budgets. 

Commenters concluded that emissions 

from motor vehicles could increase 

anywhere from 10 to 50% of the 1-hour 

budgets, and because motor vehicles 

represent a quarter to a half of all 

emissions in most metropolitan areas, 

the total emissions in an airshed could 

increase to the point where areas cannot 

attain the 8-hour standard. 

Likewise, the build/no-build test 

could also lead to an increase in 

emissions over the 1-hour budgets and 

from current air quality progress, 

according to some commenters. Several 

commenters argued that the build/nobuild test sets no meaningful limit on 

emissions growth because the test is 

satisfied as long as the build emissions 

are less than the no-build emissions, 

regardless of how much emissions 

increase in both the build and no-build 

cases. 

Commenters also wrote to EPA about 

the results of using interim emissions 

tests where budgets are available. Many 

were concerned with negative impacts 

on public health due to the increase in 

emissions that could occur, especially 

impacts on children. One commenter 

predicted it would be difficult for areas 

to adopt future measures sufficient to 

offset the emissions increases that could 

result, and that such measures would 

impose increased burden on other 

source sectors, such as industrial 

sources and small businesses. 

EPA found the evidence and the 

arguments presented by these 

commenters compelling, and we now 

believe that using the interim emissions 

tests would not fulfill the Clean Air Act 

conformity tests when appropriate 1-

hour budgets are available. Some areas 

with 1-hour budgets have not yet 

attained the 1-hour standard, and the 8-

hour standard is generally more 

stringent. In these areas, EPA believes 

that every additional ton of motor 

vehicle emissions allowed above the 1-

hour budgets could impact an area’s 

ability to attain the 8-hour standard and 

necessitate additional control measures. 

Under today’s rule, therefore, the 

interim emissions test(s) are only 

available if the circumstances warrant it, 

as determined through the interagency 

consultation process. EPA agrees with 

these commenters that the budget test is 

generally more protective of air quality 

and that the interim emissions tests do 

not meet sections 176(c)(1)(A) and (B) of 

the Clean Air Act when an appropriate 

1-hour budget is available. 

Furthermore, today’s final rule is 

consistent with EPA’s historical 

precedent that the budget test with an 

adequate or approved SIP budget is 

more appropriate than the interim 

emissions tests. As we stated in our July 

9, 1996, conformity proposal (61 FR 

36115), when motor vehicle emissions 

budgets have been established by SIPs, 

they provide a more relevant basis for 

conformity determinations. The baseline 

year and the build/no-build tests are 

sufficient for demonstrating conformity 

when an area does not have a budget. 

EPA created these tests based on the 

language in Clean Air Act section 

176(c)(3). They ensure that emissions do 

not increase above emissions in a recent 

year, and show that the transportation 

plan and TIP contribute to emissions 

reductions, where required. However, 

these tests usually do not ensure that 

transportation emissions promote 

progress toward the air quality 

standards to the same extent that the use 

of motor vehicle emissions budgets do. 

Although the 1-hour SIP budgets are for 

a different standard, they still address 

ozone, will help areas make progress 

toward the new standard, and are a 

better reflection of the ozone pollution 

problem that each area faces than the 

interim emissions tests.

One commenter who supported 

requiring the budget test asked EPA to 

clarify whether 1-hour budgets remain 

in effect after revocation of the 1-hour 

standard. Once we revoke the standard, 

these budgets do not remain in effect for 

the 1-hour standard as conformity does 

not apply with respect to the 1-hour 

standard. However, those 1-hour 

budgets that are adequate or approved 

continue to be part of an area’s SIP and 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40027

are therefore appropriate to use as 

proxies for the 8-hour standard. EPA 

notes that adjusting the 1-hour ozone 

budgets to correspond to the boundaries 

of the 8-hour area for purposes of 

conducting 8-hour ozone conformity 

analyses is legally appropriate since any 

1-hour ozone SIP demonstrations and 

budgets would only be used as a proxy 

for the 8-hour ozone standard and 

would themselves no longer be for an 

applicable standard. Therefore, EPA 

believes that using the portion of the 1-

hour SIP budget that covers the 8-hour 

nonattainment is appropriate for 8-hour 

conformity and that the relevant portion 

can be derived through the consultation 

process. For example, adding county 

level emissions to, or subtracting county 

level emissions from, the 1-hour budgets 

to reflect the geographic 8-hour area 

does not need to occur through a SIP 

revision or be reviewed through EPA’s 

adequacy process. Using portions of 1-

hour SIP budgets in this manner does 

not necessitate 8-hour or 1-hour SIP 

revisions, but merely are administrative 

analyses of what tests should be 

conducted for conformity purposes 

prior to submission of 8-hour SIPs. How 

these budgets are derived can be 

determined through the consultation 

process and documented in an area’s 

conformity determination. 

Many commenters supported our 

proposal to offer a menu of choices and 

use the interagency consultation process 

to choose the test. Most of these 

commenters simply stated their 

preference, but a few offered that the 

2002 baseline year test may be better 

than the budget test when the 1-hour 

budgets are based on outdated planning 

assumptions or models. Today’s final 

rule preserves an area’s ability to decide 

that the 1-hour budgets are not the most 

appropriate test. However, budgets 

cannot be ignored solely because more 

recent planning assumptions or models 

are available. When budgets are not 

currently in use and in other cases 

where it is more appropriate for meeting 

Clean Air Act section 176(c) 

requirements, the consultation process 

must be used and the rationale for using 

other test(s) documented in the 

conformity determination. 

Another commenter suggested that 

EPA should allow areas to choose 

among several tests because it has not 

yet classified areas or established 

attainment years. This was true as of the 

November 5, 2003 proposal, but at this 

point EPA has classified areas and 

established attainment years in the final 

8-hour designations rule (April 30, 

2004, 69 FR 23858). A few commenters 

thought that emissions should be held 

as low as possible, and therefore EPA 

should require areas to determine which 

of the tests is more protective through 

the interagency consultation process. 

Another commenter thought that the 

state air quality agency alone should 

choose the test to ensure that the 

conformity requirements of the Clean 

Air Act are met. EPA believes, however, 

that the budget test using the 1-hour 

budgets generally maintains current air 

quality progress and satisfies the Clean 

Air Act requirement that transportation 

activities not cause new violations, 

worsen existing violations, or delay 

timely attainment, as described above. 

Therefore, EPA is not incorporating the 

commenter’s suggestion in today’s rule, 

although air quality agencies are 

expected to play a significant role in the 

selection of the appropriate test through 

the consultation process in these areas, 

because they developed 1-hour SIPs and 

budgets. 

One commenter suggested that where 

the 8-hour area is smaller than the 1-

hour area (Scenario 2), a budget could 

be created for the 8-hour area by 

reducing the 1-hour budget proportional 

to the population of the 8-hour area (i.e., 

8-hour budget = 1-hour budget × 8-hour 

area population / 1-hour area 

population). EPA does not agree that 

this method would necessarily produce 

an appropriate proxy budget, because 

such a calculation may not accurately 

reflect the portion of the 1-hour SIP 

budget that applies for the geographic 

area covered by the 8-hour standard. 

Furthermore, emissions are not directly 

proportional to population but also 

depend on travel distances, speeds, and 

fleet characteristics, all of which may 

differ greatly among counties within one 

nonattainment area. 

Where the 8-hour area is larger than 

the 1-hour area (Scenario 3), one 

commenter suggested that EPA should 

allow conformity to be demonstrated if 

the entire 8-hour area can meet the 1-

hour budget. EPA did not propose this 

option in the November 2003 proposal 

because we do not believe that it would 

be possible for a larger 8-hour area to 

meet a 1-hour budget for a smaller area. 

However, EPA believes that if this case 

does occur in practice, such an area 

could demonstrate conformity for the 8-

hour standard by completing the budget 

test with the 1-hour budget for the entire 

8-hour nonattainment area. Although 

this case is not explicitly addressed in 

the regulatory text for today’s final rule, 

if an 8-hour area that is larger than the 

1-hour area meets its 1-hour SIP 

budgets, it would satisfy the 

requirements of § 93.109(e)(2)(iii). It 

would meet the budget test in (A) of this 

paragraph, and it would implicitly show 

that the interim emissions test(s) in (B) 

of this paragraph had been met. 

Several commenters requested 

clarification that all of the test options 

remain available in subsequent 

conformity determinations until 

adequate or approved budgets for the 8-

hour standard are in place. Though 

today’s final rule does not offer the full 

range of options proposed, areas will 

still evaluate how to apply the budget 

test using 1-hour SIP budgets with each 

new conformity determination. In 

addition, the consultation process will 

be used to decide details for how to 

apply the interim emissions tests where 

the 8-hour boundary is larger than or 

partially overlaps with the 1-hour 

boundary (Scenario 4). Until 8-hour 

ozone budgets are available, areas do 

have the option to apply these tests as 

appropriate in any subsequent 

conformity determinations regardless of 

how the test was applied in a prior 

conformity determination. 

The final rule also gives flexibility for 

how the interim emissions tests are 

applied in Scenario 3 and 4 areas. EPA 

is finalizing the budget test plus interim 

emissions tests either for: 

• The whole area to be covered by an 

8-hour SIP, 

• the portion not covered by the 1-

hour budget, or 

• the entire portion of the 8-hour 

ozone nonattainment area within an 

individual state, in the case where 1-

hour SIP budgets are established for 

each state in a multi-state 

nonattainment area.

EPA originally proposed that these areas 

would meet the interim emissions tests 

for the whole area, or the budget test for 

the 1-hour portion plus the interim 

emissions tests for the remainder. 

Though we did not specifically propose 

that areas would use the budgets plus 

the interim emissions tests for the entire 

area, we did propose that areas could 

meet the interim emissions tests for the 

whole area. Today’s final rule includes 

this option because EPA now believes 

that, in most cases, the budgets must be 

used, but that offering a choice where 

possible with regard to the interim tests 

provides some flexibility for areas 

where they are also required. This 

option is a logical outgrowth of the 

proposal and comments received 

regarding the use of budgets. In 

addition, because many commenters 

supported the use of interim reduction 

tests by themselves for the whole area, 

EPA believes there is support for this 

option in conjunction with the 1-hour 

SIP budgets prior to 8-hour SIPs being 

established. Finally, as described above, 

EPA is finalizing a third interim 

40028 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

emissions test option for multi-state 

nonattainment areas with separate 1-

hour SIP budgets, due to comments 

received from such areas. 

One commenter raised questions 

about the situation where an existing 1-

hour ozone nonattainment or 

maintenance area can demonstrate 

conformity, but the new 8-hour counties 

within the same 8-hour nonattainment 

area cannot. In this general case, the 

commenter believed that the 1-hour 

portion of the 8-hour ozone 

nonattainment area should be able to 

proceed with projects that will be 

implemented in the 1-hour portion even 

though the new 8-hour portion of the 

area fails to demonstrate conformity.

EPA does not agree. As described in 

Section III., during the one-year 

conformity grace period, conformity 

using the appropriate 1-hour ozone 

conformity test applies only in 1-hour 

nonattainment and maintenance areas. 

Once the grace period for the 8-hour 

standard expires and the 1-hour 

standard is revoked, however, the 1-

hour ozone standard and conformity 

requirements for that standard no longer 

apply. At that time, new 8-hour ozone 

nonattainment areas (including the 

previous 1-hour area or portions thereof) 

must demonstrate conformity for the 

entire 8-hour area or the area will lapse. 

Therefore, EPA has not changed the 

final rule to address this comment. 

However, EPA will elaborate how 8-

hour conformity determinations in 

multi-jurisdictional areas with existing 

1-hour SIP budgets in implementation 

guidance. Please see Section I.B.2. of 

today’s final rule for more information 

about EPA’s conformity website. 

Finally, some commenters supported 

the use of 1-hour SIP budgets based on 

legal rationale with which EPA 

disagrees. First, commenters stated that 

the Clean Air Act does not allow 

existing approved budgets for any 

pollutant or standard to be waived. 

Second, commenters stated that all 

elements of a SIP, including 1-hour 

budgets, remain enforceable until 

revisions are submitted by the state and 

approved by EPA as satisfying the 

requirements of Clean Air Act sections 

110(k) and (l). EPA agrees that 1-hour 

ozone budgets should be used for 8-hour 

ozone conformity, but disagrees with 

these legal arguments. In section 

109(d)(1) of the Clean Air Act, Congress 

directed EPA to review the standards 

every 5 years and ‘‘make such revisions 

in such criteria and standards and 

promulgate such new standards * * *.’’

EPA interprets ‘‘make such revisions in 

* * * standards’’ to mean that EPA has 

the authority to replace one standard 

with another, and that implicit in this 

authority is the authority to revoke a 

standard. Once a standard is revoked, 

although control measures remain in a 

SIP the budgets for that standard are no 

longer in force for conformity purposes 

because areas are not required to 

conduct conformity determinations for 

such standards. Therefore, EPA does not 

agree that the 1-hour ozone budgets 

would automatically still apply for 8-

hour conformity purposes, nor that 

section 110(k) and (l) requirements 

would have to be met before areas 

stopped using these budgets for 

conformity purposes. Section 176(c)(5) 

of the Act terminates conformity for the 

1-hour standard at revocation. 

Conformity for the 8-hour standard 

begins one year after designation, but 

the SIP contains no budgets for the 8-

hour standard until 8-hour SIPs are 

submitted. EPA believes that the 

remaining 1-hour budgets will generally 

represent the best approximation of 

future 8-hour budgets and thus should 

be used for 8-hour conformity in most 

cases, but does not agree that they must 

always be used as a legal matter as 

suggested by the commenter. 

Third, commenters argued that EPA’s 

previous statement in the preamble to 

the August 15, 1997 conformity rule 

supports their view that 1-hour SIP 

budgets in approved SIPs must be used 

for conformity determinations under the 

8-hour standard. They quoted, ‘‘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 * * *. 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.’’ (62 FR 

43783). EPA does not agree that this 

quote is relevant, as we are not 

discussing submitted budgets that will 

replace the approved 1-hour ozone 

budgets. This language must be 

interpreted in context as referring to SIP 

revisions for the same applicable 

standard as the existing SIP. 

Furthermore, EPA does not agree that 

Clean Air Act section 176(c)(2)(A) 

requires the use of 1-hour ozone budgets 

for conformity under the 8-hour 

standard. This section requires that 

emissions from the planned 

transportation plan and TIP must be 

consistent with emissions in the 

applicable SIP, but a 1-hour ozone SIP 

ceases to be the applicable SIP once the 

1-hour standard is revoked. The 8-hour 

SIP, once available, will be the 

applicable SIP for conformity 

determinations under the 8-hour ozone 

standard. Instead of relying on Clean Air 

Act section 176(c)(2)(A), EPA believes 

the 1-hour budgets must be used where 

possible in 8-hour areas because their 

use best meets the requirements of 

176(c)(1)(A) and (B) for the 8-hour 

standard. 

VII. Regional Conformity Tests in PM2.5

Areas 

A. Description of Final Rule 

Today’s final rule requires that the 

budget test be used to complete a 

regional emissions analysis once a PM2.5

SIP is submitted with budget(s) that 

EPA has found adequate or approved. 

Although the first PM2.5 SIP may be an 

attainment demonstration, PM2.5

nonattainment areas ‘‘are free to 

establish, through the SIP process, a 

motor vehicle emissions budget [or 

budgets] 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 

towards attainment.’’ (August 15, 1997, 

62 FR 43799). To be approvable, such a 

SIP would include inventories for all 

emissions sources and meet other SIP 

requirements. EPA encourages 

nonattainment areas to develop their 

PM2.5 SIPs in consultation with federal, 

state, and local air quality and 

transportation agencies as appropriate. 

Today’s final rule also requires that 

PM2.5 nonattainment areas meet one of 

the following interim emissions tests for 

conformity determinations conducted 

before adequate or approved PM2.5 SIP 

budgets are established: 

• The build-no-greater-than-no-build 

test, or

• the no-greater-than-2002 emissions 

test.

The rule allows PM2.5 nonattainment 

areas to choose between the two interim 

emissions tests each time that they 

determine conformity during this 

period. For example, an area may use 

the build-no-greater-than-no-build test 

in its first conformity determination for 

the PM2.5 standard and then use the nogreater-than-2002 emissions test in a 

subsequent conformity determination. 

However, under this final rule, the same 

test must be used for each analysis year 

in a given conformity determination. In 

other words, an MPO may not use the 

build-no-greater-than-no-build test in 

one analysis year and the no-greaterthan-2002 test in another analysis year 

for the same conformity determination. 

As noted in Section V. with respect to 

certain ozone areas, to do otherwise 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40029

would be unnecessarily complicated 

and would imply that one test used 

consistently for all years might not 

demonstrate conformity. The 

interagency consultation process should 

be used to determine which test is 

appropriate. EPA concludes that for 

reasons similar to those described for 8-

hour ozone areas classified marginal 

and subpart 1 areas, conformity is 

demonstrated if the projected 

transportation system emissions 

reflecting the proposed plan or TIP 

(build) are less than or equal to either 

the emissions from the existing 

transportation system (no-build) or the 

level of motor vehicle emissions in 

2002. 

During the time period before a SIP is 

submitted and budgets are found 

adequate or approved, regional 

emissions analyses will be completed at 

a minimum for directly emitted PM2.5

from motor vehicle tailpipe, brake wear, 

and tire wear emissions, as described in 

Section VIII. This section also provides 

information on EPA’s further 

consideration of PM2.5 precursors in 

conformity analyses. Sections IX. and X. 

describe situations under which 

regional emissions analyses would also 

include direct PM2.5 emissions from reentrained road dust and constructionrelated dust. 

The consultation process should be 

used to determine the models and 

planning assumptions for completing 

any regional emissions analysis 

consistent with related requirements, as 

required by § 93.105(c)(1)(i). See the 

regulatory text in § 93.109(i) for a 

general overview of when the budget 

test and interim emissions tests apply in 

PM2.5 areas, and § 93.119(e) for a 

description of the interim emissions 

tests for PM2.5 nonattainment areas. 

B. Rationale and Response to Comments 

The final rule addresses the concerns 

of many stakeholders by providing 

flexibility before adequate or approved 

PM2.5 SIP budgets are established. EPA 

received a number of comments on this 

section of the proposal. Most of the 

commenters supported the proposal to 

allow areas to choose between the two 

interim emissions tests. These 

commenters indicated that having a 

choice provided appropriate flexibility 

for local areas to tailor conformity 

requirements. One commenter stated 

that the interagency consultation 

process should be used to select the 

interim emissions test to be used in the 

nonattainment area. 

EPA agrees with these commenters. 

As described in the proposal, EPA has 

previously determined that only ozone 

and CO areas of higher classifications 

are required to satisfy both statutory 

requirements that transportation 

activities not cause or contribute to 

violations of the standards or delay 

attainment (Clean Air Act section 

176(c)(1)(B)) and that such activities 

contribute to annual emissions 

reductions (Clean Air Act section 

176(c)(3)(A)(iii)) (January 11, 1993 

proposed rule, 58 FR 3782–3783). EPA 

continues to believe that Clean Air Act 

section 176(c)(3)(A)(iii) does not apply 

to any other areas, including PM2.5

areas; only Clean Air Act section 

176(c)(1)(B) applies to these areas. To 

that end, the conformity rule currently 

allows many areas to conform based on 

only one interim emissions test if 

transportation emissions are consistent 

with current air quality expectations, 

rather than having to complete two tests 

and contribute further reductions 

toward attainment. Today’s final rule 

continues to apply this same test 

structure and rationale to PM2.5 areas. 

EPA also agrees that an area’s 

interagency consultation process 

provides an appropriate forum for 

determining which of the two interim 

emissions tests should be used in 

conformity determinations. 

Some commenters recommended that 

PM2.5 nonattainment areas be required 

to pass both interim emissions tests 

prior to SIP budgets being found 

adequate or approved, for a variety of 

reasons. These commenters noted that it 

is possible that an area could pass the 

no-greater-than-2002 test, but fail the 

build-no-greater-than-no-build test. 

According to the commenter, failing the 

build-no-greater-than-no-build test 

could indicate increasing emissions and 

be inconsistent with Clean Air Act 

section 176(c)(1) because any increased 

emissions could cause or contribute to 

new violations, worsen existing 

violations or delay timely attainment of 

the air quality standard. In addition, two 

other commenters recommended that 

EPA require both interim emissions 

tests in areas with the more serious 

PM2.5 nonattainment problems because 

these areas should be required to meet 

more stringent conformity tests. Three 

additional commenters indicated that 

both interim emissions tests should be 

required because this is the most 

conservative approach to ensure 

protection of public health, that it 

would reduce transport of emissions 

and it would maintain progress toward 

meeting the standard. One of these 

commenters indicated that the build-nogreater-than-no-build test requires that 

total emissions be less than a no-build 

scenario and the no-greater-than-2002 

test prevents increases above a historical 

level of emissions; therefore, both tests 

should be applied. 

EPA disagrees with the assertion that 

in order to demonstrate conformity 

during the time period before PM2.5

budgets are found adequate or are 

approved an area must pass both 

interim emissions tests. As described 

above, EPA has previously determined 

that only ozone and CO areas of higher 

classifications are required to satisfy 

both statutory requirements that 

transportation activities not cause or 

contribute to violations of the standards 

or delay attainment (Clean Air Act 

section 176(c)(1)(B)) and that such 

activities contribute to annual emissions 

reductions (Clean Air Act section 

176(c)(3)(A)(iii)) (January 11, 1993 

proposed rule, 58 FR 3782–3783). EPA 

continues to believe that either of the 

two interim emissions tests are 

sufficient to meet Clean Air Act section 

176(c)(1)(B) provisions. As noted by 

these commenters an area could pass 

only the build-no-greater-than-no-build 

test and fail the no-greater-than-2002 

test and this would allegedly indicate 

increasing emissions which could cause 

new violations, worsen existing 

violations or delay timely attainment of 

the standard. EPA recognizes that 

meeting only the build-no-greater-thanno-build test is a possible outcome in 

some areas; however, as EPA stated in 

the section of the preamble to the 

November 24, 1993 final transportation 

conformity rule that addressed 

requirements for NO2 and PM10 areas 

during the time before a SIP was 

submitted, ‘‘The build/no-build test is 

consistent with the interim 

requirements for ozone and CO areas 

and sufficient to ensure that the 

transportation plan, TIP or project is not 

itself causing a new violation or 

exacerbating an existing one.’’ (58 FR 

62197) 

Conversely, some areas may fail the 

build-no-greater-than-no-build test and 

pass only a no-greater-than-2002 test. 

EPA believes that this would also be an 

acceptable outcome because it would 

ensure that emissions from on-road 

mobile sources are no greater than they 

were during the 2002 baseline year that 

is used for SIP planning purposes under 

the new standards. If future on-road 

emissions do not increase above their 

base year levels, EPA believes that new 

violations will not be created, existing 

violations will not be made worse and 

timely attainment will not be delayed. 

This is consistent with the approach 

applied to emissions in PM10 and NO2

areas in the preamble to the January 11, 

1993 notice of proposed rulemaking for 

the transportation conformity rule. 

Specifically, in that preamble EPA 

40030 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

stated that, ‘‘* * * EPA believes that 

preventing emissions from increasing 

above 1990 levels would be sufficient to 

prevent the exacerbation of existing 

violations during the interim period.’’

(58 FR 3783).

With regard to the recommendations 

that we require both interim emissions 

tests based either on the severity of an 

area’s nonattainment problem or on the 

conservative nature of requiring both 

tests, EPA is not accepting either 

recommendation. As stated above, EPA 

continues to believe that either test is 

sufficient to meet the requirements of 

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

applies to PM2.5 nonattainment areas. 

Additionally, EPA intends to designate 

all PM2.5 nonattainment areas under 

subpart 1 of the Clean Air Act. Subpart 

1 does not mandate a classification 

scheme for nonattainment areas based 

on the severity of an area’s air quality 

problem. Therefore, there is no basis for 

EPA to determine in this rulemaking 

what would constitute a serious PM2.5

nonattainment problem and require 

both interim emissions tests in such 

areas. Areas should use the interagency 

consultation process to determine 

which of the two tests is most 

appropriate in their area. Although areas 

may voluntarily choose to perform both 

interim emissions tests during the time 

before a SIP is submitted and budgets 

are found adequate or approved if a 

conservative approach is desired, they 

are not required to do so. EPA believes 

that areas should make their own 

decisions on how conservative to be 

prior to SIP adoption so long as they 

meet the minimum requirements for 

conformity. 

One commenter recommended that 

only the build-no-greater-than-no-build 

test be made available to PM2.5 areas 

because it shows improvements 

resulting from the transportation plan 

and TIP. This commenter was 

concerned that the no-greater-than-2002 

emissions test is not appropriate in 

PM2.5 areas because re-entrained road 

dust is dependent on VMT and future 

year emissions will always be greater 

than 2002 emissions when dust 

emissions increases are included. EPA 

has not changed the rule in response to 

this comment. 

First, because EPA believes that some 

PM2.5 areas may be able to use the nogreater-than-2002 test successfully, EPA 

does not want to require that all areas 

must use the build-no-greater-than-nobuild test. EPA believes that areas 

should have a choice of the two interim 

emissions tests since EPA concludes 

that both tests allow areas to 

demonstrate that they meet the 

requirements of Clean Air Act Section 

176(c)(1)(B). 

Second, while some PM10 areas 

experienced difficulties passing the 

baseline year test, it is not certain that 

PM2.5 areas will experience the same 

difficulty. Road dust represents a much 

smaller fraction of total PM2.5 mass than 

of PM10 because most road dust 

particles are larger than 2.5 microns. 

Also, as stated in Section IX. of today’s 

notice, EPA is finalizing a provision that 

only requires re-entrained road dust to 

be included in conformity 

determinations before PM2.5 SIP budgets 

are available if EPA or the state air 

agency makes a finding that road dust 

is a significant contributor to an area’s 

PM2.5 nonattainment problem. 

Therefore, not all areas will be required 

to include road dust in conformity 

determinations initially. For areas 

where it is determined that road dust is 

a significant contributor to the 

nonattainment problem and therefore 

must be included in conformity 

determinations, EPA will be issuing 

future guidance on how to quantify 

more appropriately road dust emissions 

for purposes of conducting regional 

emissions analyses. 

Another commenter suggested that 

neither of the interim emissions tests 

should be required before a SIP is 

submitted and that mobile sources 

should not be targeted when they may 

not be the source of an area’s PM2.5

problem. EPA disagrees. Clean Air Act 

section 176(c)(6) requires that 

conformity apply in new nonattainment 

areas one year after the effective date of 

the nonattainment designation, even 

prior to the submission of SIPs 

establishing budgets for a particular 

pollutant. Clean Air Act section 

176(c)(4) provides EPA with the 

authority to establish conformity tests 

that will ensure that transportation 

plans, programs and projects do not 

result in new violations of an air quality 

standard, worsen an existing violation 

or delay timely attainment of a standard 

during that time period. While the 

contribution of mobile sources to PM2.5 

nonattainment problems is likely to vary 

from area to area, on-road sources are 

likely to make some contribution in all 

areas. Therefore, EPA believes that in 

order to protect public health it is both 

required by the Clean Air Act and 

necessary for PM2.5 areas to begin 

demonstrating conformity using 

appropriate interim emissions tests once 

conformity applies, before adequate or 

approved SIP budgets are established. 

One commenter expressed support for 

the use of the budget test particularly in 

maintenance areas. The commenter 

noted that the budget test provides the 

area with a high degree of confidence 

that it will remain in attainment if 

emissions are held to the SIP budget 

levels. EPA agrees that once a SIP is 

submitted and budgets are found 

adequate or approved, the budget test is 

appropriate for meeting statutory 

requirements. Section 176(c)(2)(A) 

requires, in part, that a transportation 

plan or TIP may only be found to 

conform if a final determination has 

been made that emissions expected from 

the implementation of the plan and TIP 

are consistent with estimates of 

emissions from motor vehicles and 

necessary emissions reductions 

contained in the applicable 

implementation plan. 

A number of comments were received 

on the suggestion that areas could 

submit early SIP budgets. One 

commenter supported this suggestion, 

while several other commenters were 

opposed to the suggestion. These 

commenters opposing early budgets 

believed that: Budgets should be 

developed as part of an area’s 

attainment demonstration with adequate 

interagency consultation recognizing the 

complexities of the PM2.5 problem; early 

budgets could isolate motor vehicle 

emissions in advance of considering 

reductions from other source categories; 

and the idea of developing these 

budgets in advance of the attainment 

demonstration is flawed in principle 

and would encourage incomplete air 

quality planning and delay the overall 

SIP development process. 

EPA believes that commenters 

misunderstood the proposal, and we 

continue to believe that it is acceptable 

for areas to establish early motor vehicle 

emission budgets through the SIP 

process at an area’s discretion. If an area 

chooses to prepare an early SIP, it must 

develop that SIP in consultation with 

EPA and state, local and federal 

transportation and air quality planners. 

To be approvable, such a SIP would 

have to include inventories for all 

source sectors and meet other SIP 

requirements. While these early SIPs 

would have to show some progress 

toward attainment, it is not a 

requirement that all of the reductions 

would come from on-road motor 

vehicles. It is not EPA’s intention that 

motor vehicle emissions be solely 

controlled in a voluntary early SIP, but 

rather, to highlight that some areas may 

find it beneficial to establish early 

budgets by selecting appropriate 

controls on a range of sources instead of 

relying on one of the interim emissions 

tests to demonstrate conformity for 

PM2.5. EPA agrees that PM2.5

nonattainment is a complex issue. 

However, some areas will have 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40031

information (e.g., air quality studies, 

modeling results) to guide them in the 

development of an early SIP, if desired. 

Furthermore, EPA does not agree that 

the idea of early SIPs is flawed or that 

it will result in incomplete air quality 

planning or delay required SIPs. A 

voluntary early SIP does not relieve an 

area of its obligation ultimately to 

submit other required SIPs in a timely 

manner (e.g., an attainment 

demonstration); therefore, an early SIP 

should not lead to incomplete air 

quality planning in the long run. An 

area that decides to submit an early SIP 

should recognize that it must still 

comply with submission dates for other 

applicable SIP requirements.

One commenter stated that early 

PM2.5 SIPs may include some 

quantification of direct PM2.5 emissions, 

but that these preliminary 

quantifications in emission inventories, 

which are not explicitly intended to be 

SIP budgets, should not trigger 

additional conformity requirements. 

EPA does not anticipate such early SIP 

submissions to cause confusion in the 

conformity process, as suggested by this 

commenter. 

EPA believes that only control 

strategy SIPs establish motor vehicle 

emission budgets for conformity 

purposes. Section 93.101 of the 

conformity rule defines a control 

strategy SIP as an implementation plan 

which contains specific strategies for 

controlling the emissions of and 

reducing ambient levels of pollutants in 

order to satisfy Clean Air Act 

requirements for demonstrations of 

reasonable further progress and 

attainment. If the early SIP described by 

the commenter is submitted to satisfy 

different Clean Air Act requirements, it 

would most likely not establish budgets 

or trigger additional conformity 

requirements. It should be noted that 

§ 93.105(b)(2) of the conformity rule 

requires that the interagency 

consultation process be used during the 

development of an area’s SIP. Therefore, 

the MPO should be aware of any SIPs 

that are to be submitted that will 

establish budgets for future conformity 

determinations. 

C. Comments Not Related to the 

Proposal 

One commenter offered suggestions 

for alternate interim emissions tests for 

PM2.5 areas. The commenter believed 

that PM2.5 nonattainment areas will 

need reductions from on-road sources 

even before a SIP is established in order 

to attain the air quality standard. The 

commenter argued that EPA has the 

authority to require reductions in all 

nonattainment areas before a SIP is 

submitted under Clean Air Act Section 

176(c)(1)(A), which requires conformity 

to the purpose of the SIP. 

The commenter described an alternate 

interim emissions test that should be 

used prior to a SIP being submitted and 

budgets being found adequate or 

approved. Specifically, the 

transportation agency would prepare a 

motor vehicle emissions trends analysis 

for the 20-year planning horizon based 

on the current transportation plan. The 

transportation agencies would then 

assess the emissions reductions that 

could be achieved by the 

implementation of facilities, services 

and economic incentives. Based on this 

assessment the area would select 

measures to optimize the emissions 

reductions from the transportation 

sector towards attainment. The 

consultation process would be used to 

establish an emissions reduction curve 

that would serve as a conformity 

benchmark until a SIP is developed and 

submitted to EPA. The commenter 

believes such a test would identify the 

range of emissions reductions available 

from the transportation sector, yield 

valuable information for the 

development of a SIP and establish a 

framework for interagency collaboration 

to identify emissions reductions that 

could be implemented before adoption 

of a SIP containing motor vehicle 

emission budgets. 

EPA is not changing the final rule in 

response to this comment. EPA agrees 

that the process described by the 

commenter may yield valuable 

information for the development of the 

PM2.5 SIP for an area, and areas could 

elect to use it at their discretion for that 

purpose. However, EPA continues to 

believe that only Clean Air Act section 

176(c)(1)(B) applies to PM2.5

nonattainment areas prior to the time 

that a SIP is submitted and budgets are 

found adequate or approved, since 

section 176(c)(2)(A) requiring 

compliance with budgets only applies 

once a SIP is established. Although 

section 176(c)(1)(A) does require 

conformity to the purposes of a SIP, 

where a SIP has not been submitted to 

establish budgets, EPA does not believe 

this provision would mandate a test 

such as that suggested by the 

commenter. 

As discussed above, EPA has 

concluded that use of either existing 

interim emissions test is sufficient to 

meet the requirements of section 

176(c)(1)(B) in PM2.5 areas. Moreover, 

the SIP process, which includes 

consultation with transportation 

agencies, is the appropriate venue for 

deciding on SIP control strategies for 

attaining the PM2.5 air quality standard. 

Requiring a test such as the one 

described by the commenter would in 

effect extend the provisions of Clean Air 

Act section 176(c)(3)(A)(iii) requiring 

emissions reductions to PM2.5

nonattainment areas as a mandatory 

matter, which is inconsistent with the 

statute. 

The same commenter also 

recommended a change to the build-nogreater-than-no-build test for PM2.5

areas. Specifically, the commenter 

recommended that emissions from the 

build scenario be compared to both the 

no-build scenario as is currently 

required and also to emissions resulting 

from implementing the projects in the 

current fiscally constrained 

transportation plan. The commenter 

believes that it is reasonable to expect 

that projects in the current plan would 

be implemented because of past 

political decisions, resource 

commitments and existing emissions 

analyses. Therefore, the commenter 

believes that area should examine the 

consequences of changing the current 

transportation plan. 

EPA does not agree with requiring 

this type of test in PM2.5 nonattainment 

areas. EPA believes that the current 

build/no-build test alone, as used for 

other pollutants and standards, is 

sufficient and more appropriate for 

meeting Clean Air Act section 

176(c)(1)(B) requirements, which are 

intended to ensure that the emissions 

produced by an area’s existing and 

planned transportation system are 

consistent with air quality goals. In 

contrast, the commenter’s suggestion for 

redefining the build and no-build 

scenarios would focus conformity 

determinations on the specific projects 

and ongoing transportation decisions 

that are reflected within plans and TIPs. 

EPA believes that the transportation 

planning process is the more 

appropriate forum for deciding which 

specific projects are necessary to meet 

an area’s transportation needs. As long 

as the statutory conformity requirements 

are met through the current form of the 

build/no-build test, EPA believes that 

additional tests such as the commenter 

suggested are not necessary to ensure 

that Clean Air Act requirements are met. 

Therefore, EPA is not including this 

suggested test in today’s final rule. 

VIII. Consideration of Direct PM2.5 and 

PM2.5 Precursors in Regional Emissions 

Analyses 

A. Description of Final Rule 

Today’s final rule requires that all 

regional emissions analyses in PM2.5

nonattainment and maintenance areas 

consider directly emitted PM2.5 motor 

40032 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

vehicle emissions from the tailpipe, 

brake wear, and tire wear. The 

regulatory text can be found in 

§ 93.102(b)(1). Sections IX. and X. 

provide information on when reentrained road dust and constructionrelated dust must also be included in 

PM2.5 conformity analyses.

To calculate emissions factors for 

direct PM2.5 from motor vehicles all 

states except California would use the 

latest EPA-approved motor vehicle 

emissions factor model (currently 

MOBILE6.2). PM2.5 nonattainment and 

maintenance areas in California would 

use EMFAC2002 or a more recently 

EPA-approved model. MOBILE6.2 and 

California’s EMFAC2002 are designed to 

generate emissions factors for direct 

PM2.5 as well as other emissions from 

on-road vehicles in the same modeling 

run. 

EPA is not finalizing any 

requirements for addressing PM2.5

precursors in transportation conformity 

determinations at this time. EPA will be 

proposing a broader PM2.5

implementation rule to seek comment 

on options for addressing PM2.5

precursors in the New Source Review 

program and in SIP planning activities 

such as reasonable further progress 

plans, attainment demonstrations, 

reasonably available control technology 

(RACT) requirements, and reasonably 

available control measure (RACM) 

analyses. EPA believes that it would be 

inappropriate to select an option for 

addressing PM2.5 precursors in 

transportation conformity 

determinations prior to considering the 

precursor options in the PM2.5

implementation rule. EPA plans to 

promulgate conformity requirements 

that address precursors prior to PM2.5

designations being effective. 

In the November 5, 2003 proposal, 

EPA presented several conformity 

options for PM2.5 precursors for 

comment. Specifically, EPA proposed to 

add potential transportation-related 

PM2.5 precursors—NOX, VOCs, sulfur 

oxides (SOX), and ammonia (NH3)—for 

consideration in the conformity process. 

Under the proposal, a regional 

emissions analysis would be required 

for a given precursor if the PM2.5 SIP 

established an adequate or approved 

budget for that particular precursor. 

EPA also proposed two options for 

addressing how the various PM2.5

precursors would be considered in 

conformity determinations conducted 

before adequate or approved PM2.5 SIP 

budgets are established. EPA proposed 

regulatory text in §§ 93.102(b)(2) and 

93.119(f) for both of these options. 

The first proposed option would 

require regional emissions analyses for 

NOX and VOC precursors in all areas, 

unless the EPA Regional Administrator 

or the state air agency makes a finding 

that one or both of these specific 

precursors are not a significant 

contributor to the PM2.5 air quality 

problem in a given area. Regional 

emissions analyses would not be 

required for SOx and NH3 before an 

adequate or approved SIP budget for 

such precursors is established, unless 

EPA or the state makes a finding that 

on-road emissions of one or both of 

these precursors is a significant 

contributor.

EPA’s second option would only 

require regional emissions analyses for 

one or more PM2.5 precursors (i.e., NOX, 

VOC, SOX and NH3) before adequate or 

approved PM2.5 SIPs have been 

established if EPA or the state makes a 

finding that one or more of these 

precursors are significant contributors

to the PM2.5 air quality problem in a 

given area. 

As stated above, EPA intends to 

finalize the transportation conformity 

rule’s PM2.5 precursor requirements 

after further consideration through the 

PM2.5 implementation rule and before 

PM2.5 designations become effective. By 

finalizing the PM2.5 precursor 

requirements before the effective date of 

the designations, areas will be fully 

aware of the conformity requirements at 

the start of the one-year PM2.5

conformity grace period. 

Although today’s final rule does not 

address PM2.5 precursors, conformity 

implementers can begin preparing for 

PM2.5 conformity now, because this final 

rule includes the PM2.5 regional 

conformity tests that apply for 

transportation plan and TIP conformity 

determinations that occur before and 

after PM2.5 SIPs are established. In 

addition, the final rule and the existing 

conformity rule provide all other 

requirements for PM2.5 determinations. 

For example, an MPO might choose to 

begin the no-greater-than-2002 test, as 

described in Section VII., prior to the 

release of final PM2.5 precursor 

conformity requirements. 

Transportation and emissions modeling 

for PM2.5 areas could also be prepared 

based on today’s final rule, if desired. 

This is because VMT and speed 

estimates are based on the existing 

conformity rule’s requirements, and can 

be made without regard to which 

precursors apply. Furthermore, 

MOBILE6.2 and EMFAC2002 emissions 

factor models generate direct PM2.5 and 

precursor emissions factors from onroad vehicles at the same time in the 

same modeling run. Once PM2.5

precursor requirements are finalized, 

PM2.5 areas can document in conformity 

determinations that the applicable 

interim emissions test is met for direct 

PM2.5 and any relevant precursors that 

apply. 

Finally, EPA is not re-opening the 

comment period on the proposed 

transportation conformity requirements 

for addressing PM2.5 precursors in 

transportation conformity 

determinations. EPA will address all of 

the comments received on the 

November 2003 proposal’s PM2.5

precursor options when we finalize 

these requirements, as described above. 

B. Rationale and Response to Comments 

EPA received a number of comments 

on this portion of the proposal. Most 

commenters supported the requirement 

that direct PM2.5 emissions from the 

tailpipe and brake and tire wear be 

addressed in all regional emissions 

analyses. EPA believes that it is 

important to address direct PM2.5 in 

conformity determinations because it is 

an important contributor to the air 

quality problem in these nonattainment 

areas and because of public health 

concerns with exposures to fine 

particles. A few commenters indicated 

that these direct emissions should only 

be required to be included in regional 

emissions analyses before a SIP is 

submitted if a finding of significance is 

made. One of these commenters also 

submitted the results of an emissions 

analysis that he prepared. The results of 

the analysis showed direct PM2.5

emissions from on-road mobile sources 

(including re-entrained road dust) 

compared to emissions of PM2.5

precursors and, in particular, emissions 

of NOX. One commenter indicated that 

her agency would have data available to 

make findings of significance. EPA 

believes that it would be inappropriate 

to require a significance finding before 

direct emissions from motor vehicles 

can be included in regional emissions 

analyses, prior to the submission of a 

SIP for an area. 

EPA believes that areas must include 

direct PM2.5 emissions, including 

tailpipe emissions and emissions from 

brake and tire wear, in conformity 

determinations prior to the time that 

SIPs are submitted and budgets are 

found adequate. Clean Air Act Section 

176(c)(1)(B) requires that activities not 

cause or contribute to any new violation 

of the air quality standard, increase the 

frequency or severity of any existing 

violation of the standard or delay timely 

attainment or any required interim 

emission reductions or other milestones. 

In order for an area to demonstrate 

compliance with the requirements of 

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

before a SIP is established, the area 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40033

must, at a minimum, conduct a regional 

emissions analysis for direct PM2.5

emissions from motor vehicles. EPA 

anticipates that in most nonattainment 

and maintenance areas direct PM2.5

emissions will be an important 

contributor to the PM2.5 air quality 

problem. For these reasons, EPA is 

requiring that transportation conformity 

determinations consider direct PM2.5

emissions. As noted above, EPA will 

finalize rules on how to account for 

PM2.5 precursors, after further 

consideration in the context of EPA’s 

broader PM2.5 implementation strategy. 

See Section IX. of this notice for more 

information on PM2.5 requirements for 

re-entrained road dust. 

One commenter indicated that EPA’s 

insignificance policy should apply to 

PM2.5 emissions. EPA agrees with this 

commenter. The insignificance policy 

may be applied to direct PM2.5

emissions during the period after a SIP 

is submitted for the area. If the SIP for 

the area demonstrates that direct PM2.5

emissions from on-road mobile sources, 

including dust where relevant, do not 

need to be constrained in order to 

ensure expeditious attainment of the 

PM2.5 standard, the requirement for a 

regional emissions analysis for direct 

PM2.5 would no longer apply. See 

Section XXIII. for more details on 

requirements for demonstrating that 

motor vehicle emissions are 

insignificant contributors to an area’s air 

quality problem.

One commenter recommended that 

conformity tests for direct PM2.5 be done 

collectively, meaning that one budget 

test or interim emissions test be done for 

all of the relevant types of direct PM2.5. 

EPA agrees with the commenter. EPA 

expects all PM2.5 nonattainment and 

maintenance areas to complete the 

required regional emissions analyses for 

direct PM2.5 by examining all of the 

relevant types of direct PM2.5 in one 

analysis rather than separate analyses 

for each type of particle: Therefore, the 

analysis for direct PM2.5 must include: 

• Tailpipe exhaust particles, 

• Brake and tire wear particles, 

• Re-entrained road dust, if before a 

SIP is submitted EPA or the state air 

agency has made a finding of 

significance or if the applicable or 

submitted SIP includes re-entrained 

road dust in the approved or adequate 

budget, and 

• Fugitive dust from transportationrelated construction activities, if the SIP 

has identified construction emissions as 

a significant contributor to the PM2.5

problem.

See Sections IX. and X. for more 

information on requirements for reentrained road dust and fugitive dust 

from construction activities. 

Three commenters expressed concern 

over the need to use MOBILE6.2 to 

estimate PM2.5 motor vehicle emissions. 

One of the three was concerned about 

the accuracy of the modeling tools. 

Another was concerned about 

unexpected problems occurring because 

areas lack experience in using MOBILE 

to evaluate particulate matter levels. 

EPA understands the concerns that 

these areas have expressed. Since the 

conformity proposal was published in 

November 2003, EPA has released 

MOBILE6.2. MOBILE6.2 is based on the 

latest available information concerning 

vehicle emissions and is therefore the 

best available tool at this time for 

calculating on-road emissions of direct 

PM2.5 (e.g., tailpipe emissions and brake 

and tire wear). The Federal Register

notice announcing the release of the 

model was published on May 19, 2004 

(69 FR 28830). EPA released SIP and 

conformity policy guidance on the use 

of MOBILE6.2 on February 24, 2004, 

entitled, ‘‘Policy Guidance on the Use of 

MOBILE6.2 and the December 2003 AP–

42 Method for Re-Entrained Road Dust 

for SIP Development and Transportation 

Conformity.’’ EPA will also be releasing 

technical guidance on the use of the 

MOBILE6.2 model in the future. 

Information on training in the use of 

MOBILE6.2 and related policy 

memoranda are available on EPA’s 

MOBILE Web site at http://

www.epa.gov/otaq/m6.htm. EPA 

believes there is adequate time for new 

areas to gain MOBILE experience and 

conduct conformity analyses for the 

PM2.5 standard, before the end of the 

one-year conformity grace period for 

that standard. 

IX. Re-entrained Road Dust in PM2.5

Regional Emissions Analyses 

A. Description of Final Rule 

With today’s action, EPA is finalizing 

the first of the two proposed options for 

addressing re-entrained road dust in 

conformity analyses prior to adequate or 

approved PM2.5 SIP budgets. During this 

time period, re-entrained road dust will 

only be included in regional emissions 

analyses if the EPA Regional 

Administrator or state air quality agency 

determines that re-entrained road dust 

is a significant contributor to the PM2.5

regional air quality problem. In other 

words, PM2.5 areas can presume that reentrained road dust is not a significant 

contributor and not include road dust in 

PM2.5 transportation conformity 

analyses prior to the SIP, unless EPA or 

the state finds road dust significant. Reentrained road dust is granular material 

released into the atmosphere as a result 

of motor vehicle activity on paved and 

unpaved roads. 

EPA is applying this approach 

regardless of whether a PM2.5 area is 

also a PM10 nonattainment or 

maintenance area. Therefore, even if the 

PM2.5 area is also a PM10 area, the state 

or MPO can presume that re-entrained 

road dust is not a significant contributor 

and exclude it from PM2.5 transportation 

conformity analyses prior to the SIP, 

unless EPA or the state finds road dust 

significant for PM2.5. Regulatory text for 

this rule change is in §§ 93.102(b)(3) and 

93.119(f). 

An EPA or state air agency finding of 

significant re-entrained road dust 

emissions (a ‘‘finding of significance’’) 

would be based on a case-by-case 

review of the following factors: the 

contribution of road dust to current and 

future PM2.5 nonattainment; an area’s 

current design value for the PM2.5

standard; whether control of road dust 

appears necessary to reach attainment; 

and whether increases in re-entrained 

dust emissions may interfere with 

attainment. Such a review would 

include consideration of local air 

quality data and/or air quality or 

emissions modeling results. Today’s 

action with respect to PM2.5 road dust is 

consistent with EPA’s existing 

insignificance policy for all areas as 

described in Section XIV.B. 

A finding of significance should be 

made only after discussions within the 

interagency consultation process for the 

PM2.5 nonattainment area. These 

discussions should include a review of 

the data being considered. Interagency 

consultation will also ensure that all of 

the relevant agencies are aware that 

such a finding is being considered and 

is supported by the air quality 

information that is available. Findings 

of significance should be made through 

a letter to the relevant state and local air 

quality and transportation agencies, 

MPO(s), DOT, and EPA (in the case of 

a state air agency finding). 

Road dust SIP emissions inventories 

and regional emissions analyses for 

conformity would be calculated using 

methods described in EPA’s guidance 

entitled, ‘‘AP–42, Fifth Edition, Volume 

1, Chapter 13, Miscellaneous Sources’’

(US EPA Office of Air Quality Planning 

and Standards; available at http://

www.epa.gov/ttn/chief/ap42/ch13/). 

States and MPOs should consult with 

EPA before using alternative 

approaches, and EPA approval is 

needed before such approaches can be 

used. Details on the use of AP–42 for 

road dust estimation are given in 

‘‘Policy Guidance on the Use of 

MOBILE6.2 and the December 2003 AP–

40034 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

42 Method for Re-Entrained Road Dust 

for SIP Development and Transportation 

Conformity,’’ memorandum from Margo 

Oge and Steve Page to EPA Regional Air 

Division Directors, February 24, 2004 

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

models/mobile6/mobil6.2_letter.pdf). 

EPA notes that the absence of a 

finding of significance prior to the SIP 

should not be viewed as the ultimate 

determination of the significance of road 

dust emissions in a given area. State and 

local agencies may find through the SIP 

development process that road dust 

emissions are significant and should be 

included in the PM2.5 SIP budget and 

subsequent conformity analyses, 

although they did not have sufficient 

data to support a finding prior to the 

development of the SIP. 

As described in the November 5, 2003 

proposal, EPA plans to issue guidance 

on how to adjust estimated PM2.5 road 

dust emissions to reflect the true impact 

of re-entrained road dust on regional air 

quality. This guidance will take into 

account differences between road dust 

emissions measured near the roadway 

and measured on regional air quality 

monitors and allow states and MPOs to 

adjust road dust emissions estimates to 

reflect accurately the regional impact of 

these emissions. EPA plans to issue this 

guidance by the time final PM2.5

designations are effective.

B. Rationale and Response to Comments 

All of the commenters that directly 

addressed this issue supported the 

option of not requiring that re-entrained 

road dust be included in PM2.5

conformity analyses prior to an 

adequate or approved SIP budget, 

regardless of whether the area is also a 

PM10 area. Reasons commenters stated 

for supporting this option included 

uncertainties about the role of reentrained road dust for PM2.5 air quality, 

likelihood that re-entrained dust will be 

dominated by larger particles, and 

concerns about needless expenditure of 

resources. As discussed in the proposal, 

at issue is the question of whether or not 

re-entrained road dust has a significant 

impact on PM2.5 air quality and should 

be included in conformity analyses in 

all PM2.5 areas. EPA believes that, unless 

there is already strong evidence of the 

importance of re-entrained road dust for 

PM2.5 air quality, the proper time to 

make that determination is during the 

development of the PM2.5 SIP. 

There is still a great deal of 

uncertainty about the overall impact of 

re-entrained road dust on PM2.5, and 

evidence suggests that re-entrained road 

dust is likely to have a relatively small 

impact on PM2.5 compared to PM10 in 

general. The development of a SIP 

requires an in-depth review of all the 

available emissions and air quality data 

for a particular area. EPA expects that 

this review will resolve many of the 

uncertainties about the impact of reentrained road dust on PM2.5 in an area. 

However, if clear evidence of the impact 

of re-entrained road dust in a local area 

is available before the SIP is developed, 

the option of finding road dust 

significant so that it is included in 

conformity analyses can provide for the 

protection of public health and the 

environment in the short term. In the 

absence of such a finding prior to a 

PM2.5 SIP, it is more productive for areas 

to focus control efforts on vehicle 

emissions that clearly contribute to the 

PM2.5 air quality problem, rather than on 

re-entrained road dust emissions that 

have not been found to be significant. In 

addition, EPA does not believe there is 

compelling evidence to require that 

PM10 areas presume that re-entrained 

road dust will be a significant 

contributor to PM2.5 air quality problems 

in all cases based on our current 

understanding and on the comments 

received. 

Several commenters suggested that 

the final rule require that both EPA and

the state make findings of significance 

before road dust is included in 

conformity analyses. EPA is not making 

this change to the final rule because we 

believe it is unnecessary given that the 

finding will be discussed through the 

interagency consultation process. The 

language used in the final rule for PM2.5

road dust is consistent with how such 

findings for PM10 precursors have been 

implemented since the original 1993 

conformity rule. 

One commenter who supported the 

option EPA is finalizing also suggested 

as an alternative that re-entrained road 

dust be counted as part of the area 

source inventory not subject to 

transportation conformity at all. EPA 

disagrees. While the deposition of silt 

on a roadway is not necessarily 

completely dependent on vehicle 

activity, the release of that silt into the 

atmosphere is dependent on vehicle 

activity, and is therefore properly 

classified as an on-road mobile source 

emission subject to transportation 

conformity requirements. 

Several commenters supported the 

future release of EPA guidance to allow 

road dust emissions estimates to be 

adjusted to reflect the true regional 

impact of those emissions. Several more 

commenters raised general concerns 

about the quality of methods available 

for estimating road dust emissions. 

These commenters believed that the 

existing methods overestimate road dust 

emissions. EPA agrees and believes that 

concerns about the inaccuracy of 

emission estimation methods arise from 

discrepancies between the observed 

emissions near the roadway surface and 

observed emissions at the regional air 

quality monitors. Allowing emissions 

estimates to be adjusted to reflect the 

true regional air quality impact through 

EPA’s planned future guidance should 

alleviate many of these concerns. 

Without these adjustments, planners 

may not apply the proper combination 

of control measures on dust and vehicle 

emissions needed to address properly 

the regional PM2.5 air quality problem. 

Based on observed discrepancies, EPA 

believes that controls on road dust 

would have a smaller impact on 

regional air quality than would initially 

appear based on unadjusted emissions 

inventories, and the Agency’s planned 

guidance will address this issue. 

Two commenters proposed that 

separate emission budgets be 

established for vehicle exhaust 

emissions and re-entrained road dust, 

rather than the current practice of 

including all on-road PM2.5 emissions in 

one regional emissions analysis. The 

commenters believe that this approach 

would ‘‘avoid the risk that 

improvements in the measurement of a 

poorly characterized inventory be used 

to offset increases in direct emissions of 

primary particles from combustion.’’ In 

general, EPA believes that emissions 

from all motor vehicle sources should 

be examined in a unified manner for 

transportation planning and air quality 

planning purposes. It is also important 

that conformity analyses in PM2.5 areas 

are consistent with how PM2.5 SIP 

budgets will be developed. 

As long as Clean Air Act requirements 

are met when all motor vehicle 

emissions are considered in conformity 

analyses, EPA does not believe it is 

beneficial to further constrain the 

transportation project or control strategy 

development processes of state and 

local governments for transportation 

conformity purposes. If it is determined 

that PM2.5 from road dust is significant, 

it may prove extremely difficult to meet 

a separate road dust budget with any 

growth in VMT. Because dust and 

vehicle PM2.5 both contribute to direct 

on-road PM2.5 emissions levels, EPA 

believes it would be appropriate to treat 

them jointly for purposes of 

transportation conformity. For these 

reasons, EPA is not requiring separate 

budgets for road dust and exhaust 

emissions. 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40035

13October 28, 1996, memorandum entitled, 

‘‘Transportation Conformity: Regional Analysis of 

PM10 Emissions from Highway and Transit Project 

Construction,’’ memorandum from Gay MacGregor, 

then-Director, Regional and State Programs 

Division, Office of Mobile Sources to EPA Regional 

Air Division Directors.

X. Construction-Related Fugitive Dust 

in PM2.5 Regional Emissions Analyses 

A. Description of Final Rule 

EPA is finalizing the proposal to 

include construction-related fugitive 

dust from highway or transit projects in 

regional emissions analyses in PM2.5

nonattainment and maintenance areas 

only if the SIP identifies construction 

dust as a significant contributor to the 

regional air quality problem. 

Construction-related fugitive dust is 

granular material released into the 

atmosphere during construction. 

Construction-related dust emissions 

would not be included in any PM2.5

conformity analyses before adequate or 

approved PM2.5 SIP budgets are 

established. Regulatory text is in 

§ 93.122(f) of this final rule. This is 

consistent with the way construction 

dust is considered in the current rule for 

PM10 nonattainment and maintenance 

areas. 

The consultation process should be 

used during the development of PM2.5

SIPs when construction emissions are a 

significant contributor, so that these 

emissions are included in the SIP’s 

motor vehicle emissions budget for 

conformity purposes. EPA has 

previously provided similar guidance to 

PM10 nonattainment and maintenance 

areas for PM10 construction-related 

emissions requirements.13 See the 

preamble to the proposal for this final 

rule for further information regarding 

how EPA intends to implement the 

PM2.5 construction dust requirement 

(November 5, 2003, 68 FR 62711).

Construction dust SIP emissions 

inventories and regional emissions 

analyses for conformity can be 

calculated using methods described in 

EPA’s guidance entitled, ‘‘AP–42, Fifth 

Edition, Volume 1, Chapter 13, 

Miscellaneous Sources’’ (US EPA Office 

of Air Quality Planning and Standards; 

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

chief/ap42/ch13/) or locally developed 

estimation methods that are selected 

through the interagency consultation 

process. 

In addition, EPA will allow PM2.5

emissions to be adjusted to reflect the 

true impact of construction-related 

fugitive dust on regional air quality, as 

explained in Section IX. EPA will issue 

guidance on how to adjust estimated 

PM2.5 construction dust emissions to 

reflect more accurately the impact of 

construction dust on regional air quality 

before EPA’s final PM2.5 nonattainment 

designations are effective. Under EPA’s 

future guidance, calculated emissions 

could then be adjusted downward, if 

appropriate and necessary, to account 

for discrepancies based on an analysis 

of the relative impact of construction 

dust on ambient PM2.5 concentrations as 

determined by regional air quality 

monitors and the PM2.5 SIP’s 

demonstration in a given area. 

B. Rationale and Response to Comments 

Most of the commenters who 

addressed this issue supported the 

proposal that EPA is finalizing today. 

Section 176(c) of the Clean Air Act 

requires that the air quality impacts of 

transportation projects be evaluated so 

that new violations or worsened 

violations do not occur and that 

attainment is not delayed. If emissions 

of fugitive dust from highway or transit 

project construction contribute to air 

quality problems in PM2.5 areas and as 

a result, air quality is worsened or 

timely attainment is delayed, then it is 

appropriate to evaluate those emissions 

in conformity before federal funding or 

approval is given. Section 93.122(e) of 

the transportation conformity rule 

requires regional PM10 emissions 

analyses to include construction-related 

PM10 dust if the SIP identifies 

construction emissions as a contributor 

to the nonattainment problem. 

If construction-related fugitive PM10 is 

not identified as a contributor to the air 

quality problem in the SIP, areas are not 

required to include these emissions in 

the regional emissions analysis for 

transportation conformity. The 

consultation process should be used to 

help determine whether construction 

dust is a significant contributor to 

regional air quality problems in the 

development of the PM2.5 SIP, and EPA 

will consider the significance of 

construction dust in its review of the 

SIP submission. Today’s action applies 

the current rule’s general approach for 

PM10 areas to PM2.5 areas. 

One commenter who supported the 

proposal said that the determination of 

whether construction dust is a 

significant contributor to the air quality 

problem should consider the temporary 

nature of these emissions, the mitigating 

impact of construction dust suppression 

measures, and the limitations of existing 

fugitive dust estimation methods. EPA 

believes that it is appropriate to include 

construction dust mitigation measures 

required in the local area when 

determining the air quality significance 

of construction dust. The temporary 

nature of these emissions can only be 

considered if the release is so short in 

duration that it does not affect regional 

air quality. The limitations of the 

existing fugitive dust method described 

by the commenter will be addressed by 

allowing the adjustment of the dust 

emissions inventory to reflect the 

impact of dust on regional air quality, 

which will be discussed in future EPA 

guidance. 

A smaller group of commenters 

opposed any inclusion of construction 

dust in transportation conformity 

analyses, citing the temporary nature of 

these emissions. While EPA agrees that 

these emissions only occur during the 

construction phase of a transportation 

project and that they may also be 

covered by other requirements, this is 

not a compelling rationale for excluding 

them from transportation conformity if 

they do have a significant impact on 

regional air quality. Dust from highway 

or transit construction projects could 

contribute to regional air quality 

problems for months or even years 

depending on the size of the project. 

Therefore, EPA has not changed the 

final rule in response to this comment. 

Some commenters argued 

construction dust should not be 

included because it is already addressed 

in the nonroad or area source inventory 

and that different emissions models and 

control strategies apply to nonroad 

sources. Other commenters argued 

construction dust should not be 

included because VOC and NOX

emissions from construction equipment 

used during road construction projects 

are not required to be included in 

conformity analyses. EPA disagrees, 

because these factors have no bearing on 

whether construction dust should be 

included in conformity determinations. 

Construction dust from highway or 

transit projects is the direct result of 

decisions made during the 

transportation planning process and 

these decisions should take those 

emissions into account. The fact that 

different estimation methods and 

control methods are used for these 

emissions does not negate the 

connection with the transportation 

planning process. If construction dust is 

determined to be a significant 

contributor to the regional air quality 

problem, the state or MPO should make 

sure that only construction dust from 

highway and transit projects and not 

from other types of construction projects 

is included in the conformity analysis. 

Several commenters argued 

construction dust should not be 

included because construction projects 

are separately covered by project-level 

and National Environmental Policy Act 

(NEPA) requirements. Because projectlevel and NEPA requirements do not 

40036 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

take into account other on-road sources 

of PM2.5 emissions in other portions of 

the nonattainment or maintenance area, 

relying on these requirements 

exclusively would miss situations in 

which additional construction dust 

emissions from transportation projects 

worsen an existing region-wide PM2.5 air 

quality problem. 

A few commenters asked that full 

interagency consultation be required as 

part of the SIP development process 

with respect to the issue of the 

significance of construction dust. EPA 

agrees. Section 93.105(b)(1) of the 

conformity rule already requires that 

state and local transportation and air 

agencies, and other organizations with 

responsibilities for developing or 

implementing SIPs must consult with 

each other and with EPA, FHWA, and 

FTA field offices on the development of 

the SIP, transportation plan, TIP, and 

associated conformity determinations. 

One commenter stated that emission 

analyses to determine if construction 

dust is a significant contributor to 

regional air quality should be required 

only in PM2.5 areas for the 24-hour 

standard because the commenter 

believed that these emissions would 

have no effect on attainment of the 

annual PM2.5 standard. EPA disagrees 

since it is impossible to make the 

determination that construction dust 

emissions will have no effect on 

attainment of the annual PM2.5 standard 

in any area until a proper analysis has 

been done as part of the SIP 

development process, especially where 

construction activity continues for 

several years. 

One commenter suggested that 

§ 93.122(f)(2) should not include ‘‘the 

dust producing capacity of the proposed 

activities’’ because the commenter 

believes this requirement exceeds the 

SIP inventory requirements. EPA 

believes that an estimation of the dust 

producing capacity of the proposed 

transportation project is necessary in 

order to make a determination of the 

significance of construction dust on 

regional air quality. It is clearly possible 

to do this since the language in 

§ 93.122(f)(2) is consistent with the 

requirement to account for construction 

dust for PM10 conformity, which has 

already been implemented for many 

years. Therefore, the final rule has not 

been changed in response to this 

comment. 

One commenter stated that 

construction dust emissions were 

generally more significant than 

emissions of re-entrained road dust. 

This commenter believed that without a 

regulatory requirement to account for 

construction-related PM2.5 emissions in 

all cases in conformity, effective 

measures to control these emissions 

would be inconsistent and only 

voluntary. As a result, this commenter 

recommended that construction dust 

emissions be considered in conformity 

analyses prior to the submission of an 

adequate PM2.5 SIP budget. EPA believes 

based on the available data that 

construction dust will not be significant 

in all areas and that therefore requiring 

the inclusion of construction dust before 

it has been determined to be significant 

through the SIP process is unnecessary 

and could lead to the diversion of 

limited state and local resources. 

Furthermore, EPA did not include an 

option for including construction dust 

in all cases in the November 2003 

proposal. Therefore, EPA is not 

changing the rule in response to this 

comment.

XI. Compliance With PM2.5 SIP Control 

Measures 

A. Description of Final Rule 

The final rule requires that FHWA 

and FTA projects in PM2.5

nonattainment and maintenance areas 

comply with the applicable SIP’s PM2.5

control measures, when such measures 

exist. Under the final rule, FHWA and 

FTA would assure implementation of a 

required control or mitigation measure 

by obtaining enforceable written 

commitments from the project sponsor 

and/or operator prior to making a 

project-level conformity determination. 

This requirement would be satisfied if 

the project-level conformity 

determination contains a written 

commitment from the project sponsor to 

include the control measures in the final 

plans, specifications and estimates for 

the project. This final rule is consistent 

with a similar requirement for PM10

areas. 

EPA notes, however, that § 93.117 is 

only applicable after a PM2.5

nonattainment area has an approved 

PM2.5 SIP, because the requirement is to 

comply with the measures in the 

approved PM2.5 SIP. Today’s final rule 

does not affect any separate state or 

other SIP requirements for compliance 

with control measures. 

The purpose of a PM2.5 control 

measure is to limit the amount of PM2.5

emissions from construction activities 

and/or normal use and operation 

associated with the project. Examples of 

specific control or mitigation measures 

that may be approved into a SIP include 

limitations on fugitive dust during 

construction or street sweeping. Normal 

project design elements (dimensions, 

lane widths, materials, etc.), however, 

are not considered mitigation or control 

measures. 

B. Rationale and Response to Comments 

Commenters were supportive of the 

proposal. The purpose of conformity is 

to ensure that federal actions are 

consistent with the SIP air quality 

objectives. If the approved SIP includes 

control measures for mitigating PM2.5

emissions from federal transportation 

projects, then conformity should 

include a written commitment from the 

project sponsor to include these SIP 

measures in the final plans, 

specifications, and estimates for the 

project. EPA believes that this 

requirement will help PM2.5 areas 

achieve clean air by ensuring that 

federal projects comply with control 

measures that result in air quality 

improvements as anticipated in the SIP. 

Although such projects must comply 

with SIP requirements in any event, 

documenting compliance in a 

conformity determination adds an 

important enforcement tool to aid in SIP 

compliance. 

Some commenters requested 

clarification that such control measures 

are not considered transportation 

control measures (TCMs) requiring 

timely implementation under 40 CFR 

93.113. EPA is not changing the 

regulatory text in response to this 

comment. Not all control measures 

included in the SIP are TCMs. However, 

if a TCM is included in an approved 

PM2.5 SIP as a PM2.5 control measure, it 

must be implemented as required by the 

SIP and the conformity rule’s timely 

implementation requirements. PM2.5 SIP 

control measures can include many 

different kinds of control measures, 

including TCMs as defined under Clean 

Air Act section 108 and § 93.101 of the 

conformity rule. EPA believes this 

clarification is consistent with current 

practice for implementing §§ 93.117 and 

93.113 requirements in PM10 areas. 

One commenter generally supported 

EPA’s proposal but was unsure how 

enforcement of PM2.5 SIP control 

measures would take place within the 

conformity process. This commenter 

recommended that enforcement of PM2.5

control measures be completed through 

the NEPA process, similar to the 

requirements for dealing with other 

environmental issues. EPA agrees that 

enforcement of PM2.5 SIP control 

measures is important, but the 

conformity rule is the appropriate 

context for meeting Clean Air Act 

conformity requirements. If a SIP PM2.5

control measure is not implemented, 

then EPA believes it would not be 

appropriate to make a project-level 

conformity determination. Finally, it is 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40037

EPA’s experience that implementation 

of § 93.117 for PM10 areas has worked 

well within the framework of the 

existing conformity rule. For all of these 

reasons, EPA is finalizing the proposed 

§ 93.117 without further changes. 

XII. PM2.5 Hot-Spot Analyses 

In the November 2003 proposal, EPA 

presented two options concerning hotspot analyses in PM2.5 nonattainment 

and maintenance areas. One proposed 

option was to not require hot-spot 

analyses for FHWA and FTA projects in 

PM2.5 nonattainment and maintenance 

areas. The other proposed option was to 

require hot-spot analyses for such 

projects at certain types of locations if 

the SIP for the area identified any such 

locations. Under the second option hotspot analyses would not be required for 

any projects before a SIP was submitted 

and then only if the PM2.5 SIP identifies 

susceptible types of locations. 

EPA received substantial comment on 

this portion of the November 2003 

proposal. After considering these 

comments, EPA, in consultation with 

DOT, has decided to request further 

public comment on these and additional 

options for PM2.5 hot-spot requirements. 

Therefore, EPA is not taking final action 

on this issue at this time. EPA will be 

publishing a supplemental notice of 

proposed rulemaking (SNPRM) on hotspots in the near future. In that notice, 

EPA will be soliciting comment on 

additional options for addressing hotspot analysis requirements in PM2.5

nonattainment and maintenance areas. 

EPA will address all comments 

received on PM2.5 hot-spot analysis 

requirements both in response to the 

November 2003 proposal as well as the 

future SNPRM on hot-spots in a final 

rulemaking after the close of the 

comment period for the SNPRM. EPA 

intends to complete its rulemaking on 

PM2.5 hot-spot requirements before 

PM2.5 nonattainment designations 

become effective.

XIII. PM10 Hot-Spot Analyses 

EPA also proposed several options for 

amending PM10 hot-spot requirements 

in its November 2003 proposal. These 

options included maintaining the 

current conformity rule’s hot-spot 

analysis requirements. A second option 

was to limit the analyses to certain 

circumstances. For example, only 

requiring analyses if the SIP has 

identified motor vehicle emissions as a 

localized problem. Under this scenario 

PM10 hot-spot analyses would not be 

required if the SIP determined that 

motor vehicle emissions do not cause 

localized problems. A third option was 

to limit PM10 hot-spot analyses to 

certain types of project locations. EPA 

also proposed an option to eliminate all 

PM10 hot-spot analysis requirements 

from the conformity rule. 

Similar to Section XII. on PM2.5 hotspot requirements, EPA has decided to 

delay making a final decision on 

changes to the existing PM10 hot-spot 

analysis requirements, since EPA 

received substantial comment on the 

proposed options. In light of those 

comments and due to the close 

relationship between PM10 and PM2.5

hot-spot requirements, EPA and DOT 

have decided to propose additional 

options for PM10 hot-spot analyses in a 

future SNPRM for hot-spots. In that 

notice, we will solicit comment on 

additional options for addressing hotspot analysis requirements in PM10

nonattainment and maintenance areas. 

EPA will address all comments 

received on PM10 hot-spot analysis 

requirements both in response to the 

November 2003 proposal and the future 

SNPRM in a final rulemaking after the 

close of the comment period for the 

SNPRM. EPA intends to complete 

rulemaking on PM10 hot-spot 

requirements before PM2.5

nonattainment designations become 

effective. EPA notes, however, that the 

existing conformity rule’s PM10 hot-spot 

requirements continue to remain in 

effect at this time. Until a final action is 

taken, PM10 nonattainment and 

maintenance areas will continue to meet 

the PM10 hot-spot requirements of 

§§ 93.116 and 93.123 of the current 

conformity rule. 

XIV. Federal Projects 

A. Description of Final Rule 

Today’s final rule is consistent with 

the June 30, 2003, proposal and the 

most recent EPA and DOT guidance 

implementing the March 2, 1999 court 

decision. The final rule modifies 

§ 93.102(c) of the conformity rule so that 

no new federal approvals or funding 

commitments for non-exempt projects 

can occur during a transportation 

conformity lapse. A conformity lapse 

generally occurs if transportation plan 

and TIP conformity determinations are 

not made within specified time frames. 

During a conformity lapse no new 

conformity determinations for plans, 

TIPs, and FHWA or FTA non-exempt 

projects may be made. Under the new 

§ 93.102(c) provision, non-exempt 

transportation project phases can be 

implemented during a lapse if they have 

received all required FHWA or FTA 

approvals or funding commitments and 

have met associated conformity 

requirements before the lapse. However, 

no new federal approvals or funding 

commitments for subsequent or new 

project phases can be made during the 

lapse. 

EPA is making one minor revision to 

§ 93.102(c) in today’s rulemaking that 

was not included in the June 30, 2003 

proposal. Specifically, we are clarifying 

that § 93.102(c) requirements do not 

have to be satisfied at the time of project 

approval for TCMs that are specifically 

included in an applicable SIP (provided 

that all other relevant transportation 

planning and conformity requirements 

are met). During the development of this 

final rule, EPA realized that the 

conformity rule § 93.114(b), as amended 

on November 15, 1995 (60 FR 57179), 

provided this exception for TCM project 

approvals during a conformity lapse. 

Therefore, EPA is including this 

exception in § 93.102(c) of today’s 

action. EPA does not believe a 

reproposal is necessary to finalize this 

minor change to § 93.102(c) as this 

revision will not change the 

requirements for federal funding and 

approval of projects and project phases 

as determined by the court and simply 

clarifies the relationship between 

existing § 93.114(b) requirements and 

today’s § 93.102(c) revision. Areas 

should refer to the November 1995 

rulemaking for more information on 

§ 93.114(b) requirements. 

As proposed, today’s final rule also 

moves previous § 93.102(c)(2) 

requirements relating to approved 

projects to § 93.104(d) to limit 

redundancy and improve organization 

of the conformity rule. The conformity 

rule continues to require a new 

conformity determination when a 

significant change in a project’s design 

concept and scope has occurred, a 

supplemental environmental document 

for air quality purposes is initiated, or 

three years have elapsed since the most 

recent major step to advance a project 

has occurred. A major step is defined in 

today’s conformity rule as ‘‘* * * NEPA 

process completion; start of final design; 

acquisition of a significant portion of 

the right-of-way; and construction 

(including Federal approval of plans, 

specifications and estimates)’’ (40 CFR 

93.104(d)). 

See EPA’s conformity website listed 

in Section I.B.2. to download an 

electronic copy of the June 30, 2003 

proposal to this final rule and the latest 

EPA and DOT guidance implementing 

the court decision. 

B. Rationale and Response to Comments 

EPA is revising the conformity rule in 

a manner consistent with the Clean Air 

Act, as interpreted by the court 

decision. Previously, section 

93.102(c)(1) of the 1997 conformity rule 

40038 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

(62 FR 43780) allowed a highway or 

transit project to receive additional 

federal approvals and funding 

commitments during a lapse if the 

project came from a previously 

conforming plan and TIP, a conformity 

determination for the project had been 

made, and the NEPA process was 

completed before the lapse. In its 

decision, the court held that 

§ 93.102(c)(1) of the 1997 rule violated 

the Clean Air Act since it allowed such 

transportation projects (i.e., 

‘‘grandfathered’’ projects) to receive 

further federal approvals or funding 

commitments during a lapse. As a 

result, the final rule allows projects and 

project phases to advance during a 

conformity lapse only if approvals or 

funding commitments for these projects 

and project phases were granted prior to 

the lapse. 

Most commenters supported EPA’s 

proposal for advancing project phases 

during a conformity lapse and believed 

that DOT and EPA’s interpretation of 

the court decision was appropriate. Two 

commenters also agreed that EPA’s June 

30, 2003 proposal is a better 

interpretation of the court decision than 

a previous interpretation reflected in a 

FHWA/FTA guidance document issued 

on June 18, 1999. The June 1999 

guidance has since been revised and 

superceded by the January 2, 2002 

FHWA/FTA guidance. Under the 

FHWA/FTA January 2002 guidance 

document and today’s final rule, any 

project phase (e.g., right-of-way (ROW) 

acquisition, final design or construction) 

that is authorized before a conformity 

lapse can be implemented during the 

lapse. However, no further approvals or 

funding commitments for subsequent 

project phases can occur during the 

lapse. See Section II. for further 

information regarding these guidance 

documents. 

EPA believes this change is 

appropriate because the court did not 

explicitly rule on the issue of how 

previously authorized project phases are 

affected during a lapse. Therefore, the 

court decision has led EPA and DOT to 

conclude that a project phase that 

previously receives all federal approvals 

and funding commitments can be 

implemented during a conformity lapse. 

EPA and DOT believe suspending such 

authorized commitments during a 

conformity lapse is not required by the 

Clean Air Act. 

Although most commenters 

understood that EPA’s proposed rule 

revision is constrained by the court 

decision, a few commenters still 

expressed a preference for the previous 

rule’s grandfathering provision. 

Specifically, one commenter stated that 

without the grandfathering provision, 

conformity lapses will lead to costly 

delays in infrastructure development 

and will waste valuable planning 

resources. Another commenter stated 

that the conformity process should be a 

forward-looking process and that once a 

project is included in a conforming plan 

and TIP, that project should be 

permanently ‘‘grandfathered’’ until 

built, changed substantially or removed 

from the plan/TIP, as having previously 

satisfied all of its requirements under 

the Clean Air Act. Another commenter 

urged EPA to change the conformity 

rule so that projects can go forward 

during a conformity lapse once the 

environmental requirements pertaining 

to air quality in the NEPA process have 

been satisfied. This commenter 

questioned why project approvals and 

funding commitments that are unrelated 

to air quality (e.g., ROW acquisition) 

should be impacted by the conformity 

rule.

As stated above, the court ruled that 

the previous rule’s grandfathering 

provision did not meet Clean Air Act 

requirements since it allowed project 

approvals and funding commitments to 

be granted during a conformity lapse 

(i.e., when the transportation plan and 

TIP do not conform). Thus, this rule 

change is mandated by the court 

decision, as noted by most commenters. 

This decision has resulted in a process 

for advancing projects that is more 

protective of air quality than the 

previous rule’s grandfathering 

provision. Although some project 

phases, such as ROW acquisitions, will 

not affect regional motor vehicle 

emissions by themselves, such phases 

are significant steps towards the 

eventual construction and operation of 

a transportation project. EPA believes 

that if unauthorized project phases are 

allowed to proceed during a lapse, 

federal approval and funding may be 

expended on projects that do not 

conform to the SIP’s air quality goals. 

Also, EPA believes it is important to 

understand the practical impact and 

scope of eliminating the previous rule’s 

grandfathering provision in most areas. 

This final rule will affect only those 

areas that are unable to meet a 

conformity deadline, and as a result, 

enter into a conformity lapse. This rule 

does not affect federal funding and 

approval of projects in areas that have 

a conforming plan and TIP in place and 

are meeting the conformity rule’s 

requirements. 

XV. Using Motor Vehicle Emissions 

Budgets From Submitted SIPs for 

Transportation Conformity 

Determinations 

A. EPA’s Role in the Adequacy Process 

1. General Description of Final Rule 

Today’s final rule continues to allow 

certain SIP budgets to be used for 

conformity before a SIP is approved. 

However, this final rule modifies several 

provisions under §§ 93.109 and 93.118 

of the conformity regulation to specify 

that EPA must affirmatively find 

submitted budgets adequate before they 

can be used in a conformity 

determination. The final rule also 

establishes the process by which EPA 

will review and make adequacy findings 

for submitted SIPs, as described in the 

June 30, 2003 proposal. 

Specifically, the final rule eliminates 

those provisions in §§ 93.109 and 

93.118(e) that required areas to use 

budgets from submitted SIPs 45 days 

after submission unless EPA had found 

them inadequate. Instead, today’s rule 

stipulates that before a budget from a 

SIP submission can be used in 

conformity, EPA must find it adequate 

using the criteria in § 93.118(e)(4). 

Under this final rule, a budget cannot be 

used until the effective date of the 

Federal Register notice that announces 

that EPA has found the budget adequate, 

which would be 15 days from the date 

of notice publication (unless the 

adequacy finding is included in EPA’s 

final approval notice for the SIP; see

Section XV.C.1 below for more 

information). 

This final rule also incorporates 

language from the November 5, 2003 

conformity proposal (68 FR 62690). 

EPA’s November 2003 proposal was 

consistent with the June 30, 2003 

proposal that addressed the March 1999 

court decision. However, the November 

2003 proposal further clarified when the 

budget test would be required when 

EPA publishes a final approval or direct 

final approval of a SIP and budgets in 

the Federal Register. For more 

information on when approved budgets 

can be used in conformity 

determinations, see Section XV.C. of 

this final rule. 

Today’s final rule addresses only the 

procedures for making adequacy 

findings for submitted SIPs in 

accordance with the court decision. The 

final rule does not change the criteria 

listed in § 93.118(e)(4) of the rule for 

determining the adequacy of submitted 

SIPs, as the court did not address this 

provision in its decision. The final rule 

is consistent with the June 30, 2003 

proposed rule and the adequacy 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40039

procedures already in place as a result 

of EPA’s May 14, 1999 guidance issued 

to implement the court decision. 

Therefore, existing adequacy procedures 

will generally remain the same as they 

have been since the 1999 guidance was 

issued. EPA notes, however, that the 

June 30, 2003 proposal and today’s final 

rule include more detailed information 

on the implementation of the adequacy 

process and expand upon EPA’s May 

1999 guidance. See Section II. of this 

notice for more background information 

on EPA’s guidance document. 

2. Rationale and Response to Comments 

In its ruling, the court remanded 

§ 93.118(e)(1) of the conformity rule to 

EPA for further rulemaking. This section 

of the conformity rule had allowed 

budgets to be used in conformity 

determinations 45 days after SIP 

submission even if EPA had not found 

them adequate. However, the court 

ruled that a submitted budget could 

only be used for conformity purposes if 

EPA had first found it adequate. 

Specifically, the court stated that 

‘‘where EPA fails to determine the 

adequacy of budgets in a SIP revision 

within 45 days of submission, * * * 

there is no reason to believe that 

transportation plans and programs 

conforming to the submitted budgets 

‘‘will not—(i) cause or contribute to any 

new violation of any standard in any 

area; (ii) increase the frequency or 

severity of any existing violation of any 

standard in any area; or (iii) delay 

timely attainment of any standard 

***’’ 42 U.S.C. § 7506(c)(1)(B).’’ 167 

F.3d, at 650. The court remanded 

§ 93.118(e)(1) to EPA so that it could be 

harmonized with these Clean Air Act 

requirements. EPA believes this final 

rule achieves the court’s directive. 

Most commenters favored using 

submitted SIPs and budgets that have 

been found adequate before SIP 

approval in conformity determinations. 

Most commenters also supported EPA’s 

proposal to incorporate the existing 

adequacy process into the conformity 

rule in accordance with the court 

decision. EPA received similar 

statements of support for our proposed 

adequacy process from one commenter 

that submitted comments on the 

November 5, 2003 proposal. Some 

commenters believed that the existing 

adequacy process provides certainty to 

the conformity process and ensures that 

submitted budgets are consistent with 

Clean Air Act requirements before they 

are used in conformity determinations. 

Additional comments on specific 

aspects of the adequacy process and 

EPA’s responses to those comments can 

be found in Sections XV.B. through 

XV.F. below. 

B. General Description of the Adequacy 

Process 

1. Description of Final Rule 

The final rule adds a new provision, 

§ 93.118(f), to the conformity rule that 

provides the basic framework of the 

adequacy process. The new § 93.118(f) 

generally reflects EPA’s existing 

adequacy process as proposed in the 

June 30, 2003 rulemaking and described 

in EPA’s 1999 adequacy guidance. The 

adequacy process consists of three basic 

steps: public notification of a SIP 

submission, a public comment period, 

and EPA’s adequacy finding, including 

response to submitted comments. These 

three steps are described below. Section 

XV.B. of today’s preamble specifically 

addresses the adequacy procedures 

listed in § 93.118(f)(1) that will be used 

for submitted SIPs in most cases. 

Section XV.C. covers alternative 

procedures listed in § 93.118(f)(2) for 

determining the adequacy of submitted 

SIPs through the SIP approval process. 

EPA will review the adequacy of 

submitted SIP budgets in cases where a 

budget can be used for conformity prior 

to approval. Adequacy reviews would 

be completed for the following cases: 

• SIPs that are considered ‘‘initial SIP 

submissions’’ (generally the first SIP 

submission to meet a given Clean Air 

Act requirement). A discussion of 

‘‘initial SIP submissions’’ can be found 

in the preamble of the proposed rule 

entitled, ‘‘Transportation Conformity 

Rule Amendments: Minor Revision of 

18-month Requirement for Initial SIP 

Submissions and Addition of Grace 

Period for Newly Designated 

Nonattainment Areas’’ (August 6, 2002, 

66 FR 50956–50957); 

• Revisions to previously submitted 

but not approved SIPs; and 

• Revisions to certain approved SIPs, 

as described further in Section XV.D.1. 

of today’s action.

For more information on the SIP 

submissions that EPA will review for 

adequacy, see the June 30, 2003 

conformity proposal (68 FR 38982–

38984).

Notification of SIP submissions: After 

a state officially submits a control 

strategy SIP or maintenance plan to 

EPA, we will notify the public by 

posting a notice on EPA’s adequacy Web 

site and will attempt to do so within 10 

days of submission. EPA’s adequacy 

Web site is the central national location 

for adequacy information. Currently, the 

Web site is found at http://

www.epa.gov/otaq/traq/traqconf/

adequacy.htm. We will consider a SIP 

submission to be formally submitted on 

the date that the EPA regional office 

receives the official SIP. In addition, 

EPA will directly notify identified 

interested members of the public. If a 

member of the public would like to be 

notified when we receive a SIP 

submission for a particular state or area, 

he or she should contact in advance the 

EPA regional employee listed on the 

Web site for that state. EPA’s Web site 

provides EPA regional contact 

information so that interested parties 

can arrange or discuss notification 

processes. For example, EPA could use 

postcards, letters, emails or phone calls 

to notify requesters, as agreed on by the 

interested party and EPA. 

Public comment: A 30-day public 

comment period will be provided at a 

minimum in either of the following 

cases: 

• If the state has made the entire SIP 

submission electronically available to 

the public via a Web site, electronic 

bulletin board, etc., the 30-day comment 

period will start immediately upon the 

posting of the SIP notice on the EPA 

adequacy website. EPA will include a 

link to the state website in its public 

notification. 

• If the SIP is not available via the 

Internet or is only available in part, if 

someone requests a paper copy of the 

entire SIP and EPA receives the request 

within the first 15 days after the SIP is 

posted, the 30-day public comment 

period will start on the date that EPA 

mails the requested copy of the SIP. 

However, if no one has requested a copy 

of the SIP from EPA within 15 days after 

the date of EPA posting notification, 

EPA will consider the 30-day comment 

period to have started immediately 

upon EPA’s adequacy Web site posting. 

Our Web site will state when the 

public comment period begins and 

ends, and to whom to send comments. 

The adequacy Web site will also include 

information on how to obtain a copy of 

a SIP submission under adequacy 

review. EPA will not make SIP 

submissions electronically available on 

our adequacy Web site. If someone 

requests a copy of the SIP, the Web site 

will be updated to reflect any extension 

of the public comment period. 

EPA’s adequacy finding: After a 

thorough review of all public comments 

received and evaluation of whether the 

adequacy criteria have been met, the 

appropriate EPA regional office will 

make a finding that the submitted SIP is 

either adequate or inadequate and send 

a letter indicating EPA’s finding, 

including response to comments, to the 

state or local air agency and other 

relevant agencies such as the MPO and 

state transportation agency. The EPA 

40040 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

14August 15, 1997 final rule; 62 FR 43782.

regional office will also mail or email a 

copy of the letter and response to 

comments to others who request it, as 

previously arranged. 

The EPA regional office will also 

subsequently announce the adequacy 

finding in the Federal Register. If EPA 

finds a budget adequate, it can be used 

for conformity determinations on the 

effective date as stated in the Federal 

Register notice, which will be 15 days 

after the notice is published. EPA will 

post EPA’s adequacy letter, our response 

to any comments, and the Federal 

Register notice on the EPA adequacy 

Web site. 

Alternatively, in cases where EPA is 

conducting an adequacy review and 

moving quickly to rulemaking on a SIP, 

EPA may use the proposed or final 

rulemaking notice for a control strategy 

SIP or maintenance plan to announce 

our adequacy finding, instead of first 

sending a separate letter to the relevant 

agencies and following it with a Federal 

Register notice. In these cases, EPA 

would post our finding on the adequacy 

Web site, along with the relevant 

proposed or final rulemaking notice for 

the SIP that would include any response 

to comments. 

Adequate budgets must be used in all 

future conformity determinations for an 

area after the effective date of EPA’s 

adequacy finding pursuant to § 93.109 

of today’s final rule (or upon EPA’s 

promulgation of a SIP approval as 

described in Section XV.C.I below); 

inadequate budgets cannot be used for 

conformity. 

EPA notes that two minor changes to 

the proposed regulatory text have been 

incorporated in this final rule regarding 

the procedures for EPA’s adequacy 

process in § 93.118(f)(1). First, EPA is 

clarifying in § 93.118(f)(1)(iii) that EPA’s 

response to comments received on the 

adequacy of a submitted SIP budget 

must be sent to the state along with 

EPA’s letter that includes its finding. In 

the June 30, 2003 proposal EPA stated 

that we will send our letter and 

response to comments to individuals 

who request a copy of these documents, 

but we did not specifically indicate that 

we would send a copy of the response 

to comments to the state. As a matter of 

practice, EPA does not issue adequacy 

findings through a formal letter to the 

state without including our responses to 

comments. Therefore, this minor 

clarification to the final rule language 

simply reflects how the adequacy 

process is currently being implemented. 

Second, EPA is also clarifying in 

§ 93.118(f)(1)(iii) that we will only 

review and consider any comments 

submitted through the state SIP process 

that are relevant to our adequacy 

finding. In § 93.118(f)(2)(iii) of the June 

30, 2003 proposal EPA stated that we 

would respond to any comments 

submitted through the state process in 

the docket of our rulemaking to approve 

or disapprove a SIP (if adequacy is 

conducted through the SIP approval 

process). However, this language should 

be interpreted in context to refer only to 

comments relating to adequacy. If 

interpreted to apply to all comments on 

a submitted SIP, the language is not 

consistent with EPA’s interpretation of 

existing requirements in 

§§ 93.118(e)(5) 14 or EPA’s current 

process for adequacy findings of 

submitted SIPs and budgets that only 

require consideration of public 

comments addressing adequacy that 

were submitted through the state 

process. EPA and the states have 

separate established processes for taking 

action on a SIP and responding to all 

comments, including comments that 

relate to other aspects of a submitted 

SIP, that are received through those 

individual processes.

EPA believes that a reproposal is not 

necessary to make these two minor 

corrections in today’s final rule. These 

minor revisions are consistent with 

EPA’s original intentions and current 

practice of making adequacy findings. 

Finally, EPA intends to review the 

adequacy of a newly submitted budget 

through the process described above 

within 90 days of EPA’s receipt of a full 

SIP submission in most cases. However, 

adequacy reviews could take longer 

particularly when EPA receives 

significant public comments. EPA will 

work with state and local agencies when 

adequacy findings can be expedited to 

meet conformity deadlines. 

2. Rationale and Response to Comments 

EPA received a number of comments 

pertaining to different aspects of the 

proposed adequacy process. In 

particular, several commenters raised 

concerns about the length of time EPA 

has allocated to conduct adequacy 

reviews, indicating that 90 days is too 

long before submitted SIPs can become 

available for conformity purposes. Two 

commenters specifically urged EPA to 

commit sufficient staff and resources to 

ensure that adequacy determinations are 

timely. Some commenters suggested 

ideas for shortening the 90-day process 

by, for example, eliminating the 30-day 

public comment period and relying 

solely on the state’s public involvement 

process for SIP development, or 

conducting adequacy reviews through 

parallel processing for all SIP 

submissions. Another commenter 

suggested eliminating the 15-day 

effective date for adequacy findings, 

since the adequacy process can be used 

to correct mistakes and later find 

budgets inadequate, if appropriate. In 

contrast, however, one commenter 

asked that the effective date be 

extended, as the current 15-day period 

does not allow sufficient time to prepare 

a petition for review and motion for stay 

in situations where a member of the 

public might disagree with EPA’s 

finding. Other commenters suggested 

that parallel processing through the SIP 

approval process be used in all 

adequacy reviews to enable submitted 

SIPs to become available sooner in the 

conformity process. 

Two commenters that submitted 

comments on the November 5, 2003 

proposal requested that EPA commit to 

making adequacy findings during an 

explicit time period (e.g., 90 days) to 

ensure that conformity deadlines are 

met and to provide more predictability 

to the conformity process.

After full consideration of all these 

comments, EPA believes that the current 

90-day time frame for conducting 

adequacy reviews is appropriate and 

does not need to be modified. EPA 

believes that providing a 30-day public 

comment period that is focused entirely 

on the adequacy of a submitted SIP and 

that is separate from the state’s public 

process is necessary to make an 

informed decision on the 

appropriateness of using a submitted 

SIP in the conformity process. In 

addition, we believe that the 15-day 

effective date is appropriate and should 

not be shortened or extended. We 

recognize that the public should be 

given some time to challenge EPA’s 

finding before it becomes effective in 

cases where an individual disagrees 

with EPA’s conclusion. We believe this 

time period before an adequacy finding 

becomes effective is necessary to ensure 

a fair and equitable process. However, 

EPA also understands the needs of 

conformity implementers to receive new 

air quality information for incorporation 

into the transportation planning and 

conformity processes in a timely 

manner. Therefore, EPA believes the 

existing adequacy process that provides 

a 15-day effective date best achieves 

these dual goals. 

EPA also wants to assure 

implementers that we are committed to 

conducting adequacy reviews, 

especially when such reviews are 

closely aligned with an upcoming 

conformity deadline, in an efficient and 

timely manner. However, as discussed 

in the June 30, 2003 proposal, some 

adequacy reviews that are complicated 

and draw a great deal of public interest 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40041

15TRANSDEF v. EPA, 9th Circuit Court of 

Appeals, No. 02–70443, Petitioners Motion for Stay, 

June 2002 at xxiii–xxiv.

16 July 9, 1996 proposed rule (61 FR 36112) and 

August 15, 1997 final rule (62 FR 43780).

17See, NCRB v. Bell Aerospace Co., 416 U.S. 

267,294 (1974).

can take longer than 90 days. EPA is 

willing to conduct the adequacy review 

of any SIP submission through parallel 

processing to expedite our review and 

finding, if requested to do so by the 

state. Areas should use the interagency 

consultation process to consult on the 

development of SIPs and budgets and to 

determine whether parallel processing 

would expedite EPA’s adequacy review 

so that conformity deadlines can be met 

in a timely manner. 

Two commenters disagreed with 

EPA’s existing process for determining 

the adequacy of submitted SIPs, and 

instead believed that adequacy findings 

should be conducted through full notice 

and comment rulemaking. One of these 

commenters argued that, in difficult 

cases, the public needs to have the 

procedural protections required by 

Administrative Procedures Act (APA) 

rulemaking when EPA determines the 

adequacy of a submitted SIP for 

conformity purposes. The commenter 

also argued that under the existing 

adequacy process, EPA fails to include 

a statement of basis and purpose in a 

proposed action that would inform the 

public prior to submitting comments of 

the action that the Agency intends to 

take and the reasons supporting that 

action, as required by the APA. The 

commenter cites a pleading filed in a 

challenge to an adequacy finding that 

states that under the current adequacy 

process the public is given no advanced 

notice of whether EPA considers the SIP 

and budgets adequate, and if so, what 

criteria have been applied and what 

facts have been considered by EPA in its 

decision.15

In response, EPA has always held that 

adequacy findings do not need to be 

made through APA notice and comment 

rulemaking. EPA does not believe these 

actions involve rulemaking, but rather 

they are conducted through informal 

adjudications. In the preamble to the 

1997 conformity rule (62 FR 43783) EPA 

stated, ‘‘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.’’ Adequacy reviews 

are carried out on an informal, case-bycase basis and apply existing criteria in 

the conformity rule (40 CFR 

93.118(e)(4)) that were previously 

subjected to notice and comment 

rulemaking.16 Further, case law 

establishes that agencies have discretion 

to decide whether to conduct such 

actions through rulemaking or 

adjudication.17 Since the March 1999 

court decision did not address this 

aspect of the adequacy process, EPA is 

not reopening this legal conclusion as 

stated in the 1997 conformity rule in 

today’s action.

However, EPA believes that providing 

some opportunity for public 

involvement even in these adjudications 

adds value to our adequacy review. We 

believe public comment can assist us in 

making more informed decisions 

regarding submitted budgets and their 

ability to ensure that new transportation 

activities will not cause or contribute to 

new violations, worsen existing 

violations, or delay timely attainment of 

the air quality standards. As a result, the 

existing adequacy process that is 

included in today’s final rule provides 

a minimum 30-day public comment 

period for each SIP that we review for 

adequacy. This adequacy public 

comment period, along with the state’s 

public process during SIP development, 

allows EPA to make an informed 

decision through adjudication on 

whether a submitted SIP meets the 

adequacy criteria established under 

§ 93.118(e)(4) of the conformity rule. 

C. Adequacy Reviews Through the SIP 

Process 

1. Description of Final Rule 

EPA is finalizing procedures for 

conducting adequacy reviews and 

making adequacy findings through the 

SIP approval process in § 93.118(f)(2). 

EPA may use the SIP approval process 

to conduct our adequacy review when 

we are moving quickly to approve a SIP 

soon after it has been submitted. These 

rule revisions are consistent with the 

June 30, 2003 conformity proposal and 

EPA’s May 1999 guidance that 

implements the court’s decision. EPA is 

also clarifying in § 93.109 when the 

budget test must be satisfied as required 

by § 93.118 if EPA finds SIP budgets 

adequate, and also if EPA approves SIPs 

and budgets through final and direct 

final rulemakings. This clarification to 

§ 93.109 is consistent with EPA’s 

November 5, 2003 proposal. 

When EPA reviews the adequacy of a 

SIP submission simultaneously with 

EPA’s approval of the SIP, the adequacy 

process will be substantially the same as 

that which we have outlined in Section 

XV.B.1. of this final rule as follows: 

Notification of SIP submission: In 

these cases, EPA will use a notice of 

proposed rulemaking to notify the 

public that EPA will be reviewing the 

SIP submission for adequacy. For 

example, we will notify the public of 

our adequacy review through the 

proposal notice when we are proposing 

to approve a SIP through parallel 

processing. In addition, when we make 

an adequacy finding for a SIP through 

direct final rulemaking, EPA will 

publish a proposed approval and a 

direct final approval in the Federal 

Register on the same day. In both the 

proposed and direct final rulemakings, 

EPA would announce the start of its 

adequacy review. 

Public comment: The publication of 

EPA’s proposed approval notice (and 

direct final approval, when applicable) 

for a SIP submission will start a public 

comment period of at least 30 days. EPA 

will post the relevant proposed and 

direct final rulemakings on our Web site 

to notify the public when the comment 

period for adequacy, as well as for other 

aspects of the SIP, begins and ends. EPA 

will also include on the adequacy 

website information on how to obtain a 

copy of the SIP submission that EPA has 

proposed to approve and find adequate. 

EPA’s adequacy finding: When we 

announce our adequacy review in a 

proposal notice only, we will 

subsequently issue our finding through 

either a letter to the state or through our 

final action on the SIP in the Federal 

Register. In the case where we issue our 

finding prior to a final action on the SIP, 

EPA will update the adequacy website 

to include the letter to the state that 

indicates our finding, responses to any 

comments received during the public 

comment period that are relevant to the 

adequacy of the SIP, and our separate 

adequacy notice that is published in the 

Federal Register in accordance with 

§ 93.118(f)(1)(iii)–(v). Such findings will 

become effective 15 days after our 

published adequacy notice. 

In the case where we make our 

adequacy finding and address response 

to comments in a subsequent final rule 

that approves or disapproves the SIP, 

EPA will update the adequacy website 

with our finding as published in the 

final Federal Register approval or 

disapproval notice. In cases where EPA 

finds the budgets adequate when we 

approve a SIP, the budgets could be 

used for conformity purposes upon the 

publication date of the final approval 

action in the Federal Register. EPA is 

finalizing this clarification to § 93.109 

for each criteria pollutant covered by 

the current conformity rule, consistent 

with the November 5, 2003 proposal. As 

stated in the November 2003 proposal, 

Clean Air Act section 176(c) requires 

that transportation activities conform to 

the motor vehicle emissions level 

established in the approved SIP. 

40042 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

Therefore, EPA believes that once a SIP 

is approved, its budgets must be used in 

future conformity determinations under 

the statute.

When EPA conducts adequacy 

through direct final rulemaking, EPA’s 

approval and adequacy finding 

generally become effective 60 days after 

publication according to the date 

indicated in the direct final Federal 

Register notice, provided that we 

receive no adverse comments and no 

other information or analysis changes 

EPA’s position in that time period. 

However, if we receive adverse 

comments or our position changes as a 

result of further information or analysis, 

we will publish a notice in the Federal 

Register withdrawing our direct final 

action and adequacy finding prior to its 

effective date in most cases. In the case 

where EPA receives adverse comments 

that do not affect our adequacy finding, 

we could publish a notice that 

withdraws only our direct final 

approval of the SIP but retains our 

adequacy finding in the Federal 

Register prior to the effective date of the 

direct final rule. In any case, EPA will 

use its Web site to inform the public 

when the adequacy finding included in 

a direct final rule takes effect, or that we 

received comments that resulted in a 

withdrawal of all or part of our direct 

final approval action. 

Given the nature of the public 

comment process and effective date 

associated with direct final rulemaking, 

an adequacy finding cannot become 

effective until the effective date of the 

direct final rule. EPA is including this 

clarification in § 93.109 of today’s rule. 

This rule revision is consistent with the 

November 2003 proposal. 

Finally, consistent with language in 

§ 93.118(f)(1)(iii), EPA is clarifying in 

§ 93.118(f)(2)(iii) that when we conduct 

adequacy reviews through the SIP 

approval process, we will review and 

consider only those comments 

submitted through the state SIP process 

that are relevant to our adequacy finding 

(in addition to comments that are 

submitted through EPA’s SIP approval 

process). In § 93.118(f)(2)(iii) of the June 

30, 2003 proposal we stated that we 

would respond to any comments 

submitted through the state process in 

the docket of our rulemaking to approve 

or disapprove a SIP (if adequacy is 

conducted through the SIP approval 

process). However, as stated in Section 

XV.B.1. of today’s action, one 

interpretation of this broad language 

could have implied that EPA would 

consider comments submitted through 

the state process beyond those 

comments relating to adequacy, which 

is not consistent with existing 

requirements or EPA’s current adequacy 

process. Therefore, EPA believes that 

our final action clarifying this issue is 

a logical outgrowth of the proposal and 

that a reproposal is not necessary to 

make this minor correction limiting our 

consideration of comments submitted to 

the state to those comments relevant to 

the adequacy process in today’s final 

rule. 

2. Rationale and Response to Comments 

One commenter did not agree with 

the 60-day effective date of budgets that 

are found adequate and approved 

through direct final rulemaking. This 

commenter argued that the 60-day 

effective date for direct final rulemaking 

unnecessarily burdens conformity 

implementers with additional time 

requirements, as these budgets would 

have already undergone public 

comment through the state’s approval 

process. 

EPA disagrees with this comment. 

When a SIP is found adequate and 

approved through direct final 

rulemaking (provided EPA receives no 

adverse comments), the 60-day effective 

date provides a 30-day public comment 

period and a 30-day time period for EPA 

to review any comments received and 

issue a withdrawal notice, if necessary. 

APA rulemaking procedures require 

EPA to provide a minimum 30-day 

public comment period when we 

approve a SIP through direct final 

rulemaking. In addition, EPA believes 

that providing a public comment period 

on our adequacy finding and SIP 

approval separate from the state’s public 

process is necessary for EPA to make an 

informed decision on the 

appropriateness of using a submitted 

SIP in the conformity process. We also 

believe that the subsequent 30 days after 

the close of the 30-day public comment 

period is critical to review any 

comments we receive and decide 

whether any would change our approval 

of the SIP. If we receive comments that 

cause us to withdraw our direct final 

approval of the SIP, the subsequent 30 

days is also necessary to perform the 

administrative tasks to ensure that the 

approval is withdrawn before it 

becomes effective. Areas should use the 

interagency consultation process to 

coordinate the introduction of new SIPs 

and budgets so that adequacy reviews 

can be completed and new budgets are 

available in time to meet any upcoming 

conformity deadlines. 

Another commenter suggested that 

adequacy reviews of all submitted SIPs 

could be accomplished through parallel 

processing procedures and direct final 

rulemaking to meet EPA’s objective of 

incorporating submitted SIPs into the 

conformity process in a timely manner. 

This commenter was generally opposed 

to EPA’s existing adequacy process and 

believed that EPA should use notice and 

comment rulemaking for all adequacy 

findings. 

EPA agrees with the comment that 

adequacy findings can be expedited 

through parallel processing procedures. 

Several states have requested such 

procedures to expedite EPA’s adequacy 

findings since the 1999 court decision. 

As stated in the June 2003 proposal, 

EPA will parallel process a SIP if 

requested to do so by the state. 

However, we should note that parallel 

processing can expedite the adequacy 

review of a submitted SIP only if no 

changes to that SIP and its budgets are 

made before the state officially submits 

the SIP to EPA for approval. In the event 

that the SIP significantly changes 

between the time EPA begins its initial 

adequacy review and the state’s formal 

submission of the SIP, EPA would have 

to re-start the adequacy process once the 

new SIP is formally submitted. 

EPA does not believe, however, that 

direct final rulemaking would expedite 

the adequacy process for submitted SIPs 

in most cases. Under the situation the 

commenter has suggested, we would 

conduct our adequacy review and 

develop a proposed and direct final 

approval of our adequacy finding either 

at the same time that the state holds its 

public comment period (i.e., parallel 

processing) or after the SIP has been 

formally submitted to EPA. Once EPA 

completes its review and publishes the 

proposed and direct final rulemakings 

in the Federal Register, the budgets 

could not be used until 60 days after 

publication even if no adverse 

comments were received on EPA’s 

direct final approval. If we received any 

relevant adverse comments, we would 

have to withdraw our direct final rule 

and publish a subsequent approval 

notice with response to comments. 

The purpose of the current adequacy 

process is to introduce new adequate 

submitted SIPs and budgets into the 

conformity process in a timely manner. 

EPA believes conducting all adequacy 

reviews through direct final rulemaking 

would defeat this purpose in many 

cases. EPA believes that conducting an 

adequacy review, preparing proposed 

and direct final rulemakings and 

providing a 60-day effective date (that 

includes a 30-day comment period), 

would require a time period much 

greater than the 90 days that EPA 

currently contemplates for the process. 

This required time period would 

significantly delay the use of adequate 

submitted budgets in conformity, 

especially in cases where EPA cannot 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40043

18November 8, 1999, Memorandum from Lydia 

N. Wegman, Director of the Air Quality Standards 

and Standards Division of EPA’s Office of Air 

Quality Planning and Standards, and Merrylin ZawMon, then-Director of the Fuels and Energy 

Division of EPA’s Office of Mobile Sources, to Air 

Director, Regions I–VI, ‘‘1-Hour Ozone Attainment 

Demonstrations and Tier 2/Sulfur Rulemaking.’’ 19August 15, 1997, 62 FR 43781–43783.

begin its adequacy review of a SIP until 

the state formally submits it to EPA for 

approval. Under the current adequacy 

process, EPA is able to complete its 

initial adequacy review concurrently 

with the adequacy public comment 

period, and thus, reduce the amount of 

time necessary to make an adequacy 

finding. Under direct final rulemaking, 

however, EPA would need to complete 

its adequacy review of submitted 

budgets before it could prepare and 

publish both a proposed approval and 

direct final approval of the budget’s 

adequacy. 

In addition, direct final rulemaking is 

typically used only when an approval is 

straight-forward and no adverse 

comments are expected. In cases where 

SIPs are more controversial and adverse 

comments are received, the use of direct 

final rulemaking could delay the use of 

adequate budgets in the conformity 

process if EPA is required to spend time 

withdrawing its direct final approval 

and publish a subsequent final approval 

notice in the Federal Register with 

response to comments some time 

significantly later.

For information on EPA’s position 

regarding the general need to find 

submitted SIPs adequate through notice 

and comment rulemaking, see Section 

XV.B.2. above. 

D. Use of Submitted Revisions to 

Approved SIPs 

1. Description of Final Rule 

EPA is also finalizing a minor 

clarification to a sentence in 

§ 93.118(e)(1), consistent with the June 

30, 2003 conformity proposal. Paragraph 

§ 93.118(e)(1) of today’s rule clarifies 

that a budget from a submitted SIP 

cannot be used for conformity if an area 

already has an approved SIP that 

addresses the same pollutant and Clean 

Air Act requirement (e.g., rate-ofprogress or attainment for a given air 

quality standard), and that approved SIP 

has budgets established for the same 

year as the submitted SIP. 

2. Rationale and Response to Comments 

EPA received a number of comments 

on the issue of using submitted SIPs in 

conformity once an approved SIP has 

already been established. Several 

commenters encouraged EPA to amend 

the conformity rule to allow adequate 

budgets to supercede approved budgets 

in all cases or when EPA believes it to 

be justified. One commenter that 

submitted comments on the November 

5, 2003 proposal requested further 

clarification on when adequate budgets 

replace existing approved budgets. This 

commenter indicated that there has 

been confusion over this aspect of the 

rule and believed that requiring 

adequate budgets to be fully approved 

before they can replace existing 

approved budgets would be burdensome 

and would defeat the purpose of the 

adequacy process. In contrast, another 

commenter expressed concern over the 

use of submitted SIPs in conformity 

determinations when an approved SIP 

for the same year and Clean Air Act 

requirement already exists. 

EPA believes that Clean Air Act 

section 176(c) clearly requires 

transportation plans, TIPs and projects 

to conform to a nonattainment or 

maintenance area’s approved SIP before 

such activities can be funded or 

approved. Therefore, EPA believes it has 

no statutory authority to allow 

submitted budgets that are established 

for the same year and Clean Air Act 

requirement to supercede budgets that 

have already been approved into the 

SIP. In general, a submitted budget 

replaces a previously approved budget 

established for the same year and Clean 

Air Act requirement only after EPA has 

approved the submitted budget. EPA 

notes, however, that submitted budgets 

that are established for a different year 

or Clean Air Act requirement than a 

previously approved budget must be 

used in conformity upon EPA’s 

adequacy finding, along with all other 

applicable adequate and approved 

budgets. Thus, EPA cannot agree with 

commenters’ request to allow submitted 

SIPs to supercede approved SIPs in all 

cases. 

However, there have been cases 

where, based on unique circumstances, 

EPA has agreed to a state’s request to 

limit our approval of a SIP in such a 

manner that a revision to that SIP could 

be used upon the effective date of EPA’s 

adequacy finding. Also, EPA has limited 

its approval of certain serious and 

severe 1-hour ozone attainment SIPs so 

that updated adequate SIP budgets 

based on the MOBILE6 emissions factor 

model could be used prior to EPA’s 

approval.18 In these cases, EPA has 

limited its approval of the original SIP 

so that the budgets included in that SIP 

are no longer considered ‘‘approved’’

upon the effective date of our 

subsequent adequacy finding for the 

revised SIP. EPA concludes that such 

actions to limit the approval of a SIP are 

permitted under the Clean Air Act and 

conformity rule, as both the statute and 

regulations only require the use of 

approved SIPs and budgets in the 

conformity process.

Another commenter objected to the 

continued use of submitted SIPs in 

conformity altogether, arguing that such 

SIPs lacked sufficient authority and 

validity to provide the basis for a 

conformity test in the absence of an 

approved SIP. At a minimum, the 

commenter suggested that in cases 

where a submitted SIP is used in 

conformity, the final rule should require 

that any transportation project approved 

on the basis of that submitted SIP 

should be subject to rescission, until the 

SIP itself is finally approved. Under 

circumstances where a SIP is submitted 

and found adequate, but subsequently 

found inadequate or disapproved, the 

commenter believed that this 

subsequent action on the SIP should 

reverse the approval of highway 

capacity increasing projects that 

received approval or funding after 

having conformed to budgets that are 

ultimately found inadequate or 

disapproved. 

EPA disagrees with these comments. 

When no adequate or approved budgets 

are available for conformity purposes, 

the interim emissions tests (i.e., the 

build/no-build test and/or the baseline 

emissions tests) in § 93.119 must be met 

to fulfill the conformity requirements. 

EPA, along with most stakeholders, 

prefers the use of submitted adequate 

SIPs and budgets for conformity rather 

than the interim emissions tests 

provided by § 93.11919 because we 

believe that submitted SIPs and budgets 

are a better measure of emissions, 

consistent with attaining and 

maintaining a given standard and 

pollutant. Submitted SIPs and budgets 

that EPA has found adequate should be 

based on the most recent data and 

models available at the time the SIP is 

developed and should reflect accurate 

estimates of emissions that are 

consistent with attaining or maintaining 

a given pollutant and standard. 

Therefore, EPA believes that a 

submitted SIP for an applicable 

standard that satisfies the adequacy 

criteria in § 93.118(e)(4) provides a 

reasonable basis for ensuring that 

transportation activities do not worsen 

existing violations, create new 

violations or delay timely attainment of 

the relevant air quality standard.

Furthermore, EPA concludes that the 

use of submitted SIPs is supported by 

the Clean Air Act. Before a SIP has been 

submitted and approved by EPA, the 

Clean Air Act section 176(c)(3) requires 

40044 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

20EPA also notes that upon the effective date of 

a SIP disapproval without a protective finding, an 

area would enter into a ‘‘conformity freeze.’’ During 

a conformity freeze, only projects in the first three 

years of the current conforming plan and TIP can 

proceed. No plan and TIP conformity 

determinations can be made until a new control 

strategy SIP revision fulfilling the same Clean Air 

Act requirement as that which EPA disapproved is 

submitted, and EPA finds the motor vehicle 

emissions budgets in that SIP adequate for 

conformity purposes or approves the new revision. 

For more information on conformity freezes and the 

consequences of a SIP disapproval without a 

protective finding, see Section XVII. of this final 

rule.

that transportation plans and TIPs must 

be consistent with the most recent 

estimates of mobile source emissions, 

provide for the expeditious 

implementation of TCMs in approved 

SIPs, and contribute to the attainment of 

the air quality standards in certain 

ozone and CO areas. Clean Air Act 

section 176(c)(1) also requires that 

transportation activities not worsen 

violations or delay timely attainment of 

the air quality standards. Because the 

adequacy criteria require submitted 

budgets to be consistent with progress 

and attainment requirements, we 

believe that conformity determinations 

based on submitted budgets that have 

been reviewed and found adequate by 

EPA through the adequacy process meet 

these statutory requirements in cases 

where an approved budget does not 

exist for the same year and Clean Air 

Act requirement. In addition, EPA 

believes that the use of a submitted 

adequate budget for a given air quality 

standard serves the Clean Air Act’s 

goals for that standard better than either 

of the interim emissions tests. This 

position regarding the use of submitted 

SIPs in conformity in the absence of an 

approved SIP has also been endorsed by 

a court in 1000 Friends of Maryland v. 

Carol Browner, et al., 265 F.3d 216 (4th 

Cir. 2001).

EPA also notes that in situations 

where a SIP has not yet been approved, 

the March 1999 court decision did not 

find the use of submitted budgets in 

conformity unlawful. In its decision, the 

court only ruled against the use of 

submitted SIPs that EPA had failed to 

affirmatively find adequate for 

conformity purposes. In the absence of 

EPA’s adequacy finding, the court 

believed that there is no assurance that 

transportation activities would not 

cause new violations, increase the 

severity of existing violations or delay 

the timely attainment of an air quality 

standard. However, the court did not 

make a similar finding in the case where 

EPA has found a budget adequate. As a 

result of this decision, EPA developed 

the existing adequacy process to ensure 

that submitted SIPs and budgets are 

appropriate for use in the conformity 

process, while still retaining the 

flexibility of the 1997 conformity rule 

that allows submitted SIPs to be used in 

a timely manner in place of the interim 

emissions tests. 

EPA also disagrees with the 

commenter’s suggestion that 

transportation project approvals that 

conform to an adequate budget should 

be subject to rescissions in the event 

that the SIP and motor vehicle 

emissions budgets are later found 

inadequate or disapproved. We believe 

that such an approach would cause 

significant confusion and only serve to 

severely disrupt the transportation 

planning and conformity processes. EPA 

has always regarded conformity as a 

prospective and iterative process. EPA 

believes that a conformity determination 

that meets the Clean Air Act and 

conformity rule’s requirements at the 

time the determination is made should 

remain valid, regardless of whether the 

SIP and budgets on which that 

determination is based are subsequently 

found to be inadequate or disapproved. 

Since 1997, § 93.118(e)(3) and 

§ 93.120(a)(1) of the conformity rule 

have provided for conformity 

determinations based on budgets that 

are subsequently found inadequate or 

disapproved to remain in effect, and in 

overturning § 93.118(e)(1) and 

§ 93.120(a)(2) of the rule, the court did 

not indicate any concern with these 

other provisions. 

In the limited case where a 

transportation plan and TIP have been 

found to conform to applicable budgets 

that are later found inadequate or 

disapproved, such budgets could no 

longer be used in future conformity 

determinations once the disapproval or 

inadequacy finding becomes effective. 

In the next conformity determination, 

emissions projected from the 

transportation plan and TIP, together 

with emissions projected from the 

existing transportation network, would 

have to meet new and/or existing 

budgets that have been found adequate 

or approved, or if no budgets are 

available, the interim emissions test(s) 

in § 93.119.20 As a result, the next 

conformity determination would ensure 

that the emissions from all on-road 

transportation sources would again be 

consistent with the area’s goals for 

attaining or maintaining the air quality 

standards. In that determination, 

projected emissions reflecting projects 

that were approved based on the 

previous inadequate or disapproved SIP 

would have to be taken into account, 

before the plan and TIP could again 

conform. EPA believes these existing 

requirements and the iterative nature of 

the conformity process will address any 

of the above concerns.

E. Changing a Previous Finding of 

Adequacy or Inadequacy 

1. Description of Final Rule 

As explained in the June 30, 2003 

conformity proposal, EPA can change an 

adequacy finding from adequate to 

inadequate or from inadequate to 

adequate for a specific reason such as 

receiving new information or 

conducting further review and analyses 

that affect our previous finding. For 

example, EPA might change a finding of 

inadequacy if a state submits additional 

information that clarifies or supports the 

adequacy of the submitted SIP and 

budget. In this case, EPA will treat the 

additional information as a supplement 

to the previous SIP submission, and 

would post a notice on the adequacy 

Web site and begin a new 30-day public 

comment period on the entire SIP 

including this new information. After 

reviewing any comments, we would 

make a new finding, as appropriate, in 

accordance with those procedures in 

§ 93.118(f) of this final rule. 

We could change our finding to 

inadequate in the case where we find 

the budgets in a submitted SIP adequate 

but later discover based on additional 

information or further review that they 

do not meet the criteria for adequacy. 

EPA requested comment in the June 30, 

2003 proposal on whether the public 

should be provided an opportunity to 

comment on any new information 

before a subsequent finding of 

inadequacy becomes effective in cases 

where EPA reconsiders its initial 

finding of adequacy. 

Based on comments received, the 

final rule does provide for a subsequent 

public comment period of at least 30 

days in cases where EPA believes the 

public could provide helpful insight 

and analysis for determining whether an 

initial finding of adequacy should be 

changed because of new information. In 

such cases, EPA would re-post the SIP 

on the adequacy Web site and start 

another minimum 30-day public 

comment period. EPA would also 

provide an explanation of how the new 

information has caused us to reconsider 

our initial adequacy finding. After 

evaluating any comments received 

during the public comment period, EPA 

will determine whether the submitted 

SIP is inadequate using the adequacy 

procedures described in either 

§ 93.118(f)(1) or (f)(2) of today’s rule. In 

cases where EPA reverses its previous 

finding to a finding of inadequacy using 

procedures in § 93.118(f)(1), such 

findings would become effective 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40045

immediately upon the date of EPA’s 

letter to the state. EPA believes this is 

necessary to prevent further use of 

inadequate budgets. Under 

§ 93.118(f)(1), we would also publish a 

notice of our inadequacy finding in the 

Federal Register and announce our 

finding on EPA’s adequacy Web site. 

However, the final rule does not 

provide for a subsequent comment 

period under certain circumstances 

where it is obvious that a budget has 

become inadequate. For instance, if a 

state has submitted a new SIP indicating 

that the prior SIP submission no longer 

provides for attainment, it would be 

clear that the prior submission is 

inadequate. The final rule allows EPA to 

proceed on a case-by-case basis using 

the adequacy procedures described in 

§ 93.118(f)(1) to make a finding of 

inadequacy effective immediately by 

explaining these facts in a letter to the 

state. In this case, EPA would also 

publish a Federal Register notice of that 

finding and post it on the adequacy Web 

site. EPA believes that in such situations 

public comment would not be necessary 

or in the public interest. Rather, it 

would be more important for EPA to 

complete the adequacy process quickly 

and limit further use of such clearly 

inadequate budgets in the conformity 

process. 

2. Rationale and Response to Comments 

EPA received four comments on 

whether an additional public comment 

period should be provided before EPA 

can reverse an initial adequacy finding 

to a finding of inadequate. Three of 

these commenters supported a public 

comment period of at least 30 days in 

these cases, with two of the commenters 

specifically stating that the additional 

time provided by the comment period 

could facilitate the completion of a 

conformity determination based on a 

previously adequate budget prior to the 

budget being deemed inadequate. One 

commenter, however, agreed with EPA’s 

position that it is not always in the best 

interest of public health to delay an 

inadequacy finding until after a public 

comment period on new information 

has concluded. 

Based on these comments, EPA is 

promulgating a final rule that would 

provide at least a 30-day public 

comment period in certain cases where 

new information is subjective and does 

not provide a clear answer as to whether 

the submitted SIP is still adequate. In 

these cases, EPA believes that soliciting 

public comment is appropriate and 

could provide helpful insight and 

analysis on determining the impact of 

the new information on the adequacy of 

a submitted SIP. However, under this 

final rule, EPA would not provide a 

public comment period in cases where 

it is obvious that a budget has become 

inadequate. EPA believes this approach 

to the final rule would serve to protect 

the public health while still preserving 

the role of public involvement in the 

adequacy process. Under this final rule, 

EPA will proceed on a case-by-case 

basis to determine whether new 

information for a submitted SIP budget 

warrants an additional public comment 

period, if such information causes us to 

reconsider our initial finding of 

adequacy. 

One commenter also suggested that 

EPA investigate the necessity of even 

having to make a finding of inadequacy 

for SIPs that EPA has previously found 

adequate. The commenter argued that 

since the court directed EPA to make a 

formal adequacy finding for a submitted 

SIP before it can be used in a conformity 

determination, the SIP approval process 

could subsequently be used to further 

review the adequacy of the SIP’s 

budgets. In cases where further review 

or additional information reveals that an 

adequacy finding is no longer 

appropriate, EPA assumes from this 

comment that a subsequent finding of 

inadequacy would be issued through a 

SIP approval or disapproval action.

EPA agrees that in some cases the SIP 

approval or disapproval process could 

be used to issue a subsequent finding of 

inadequacy for a SIP that was 

previously found adequate. However, in 

other cases, we believe that issuing a 

subsequent finding of inadequacy prior 

to EPA’s approval and/or disapproval 

action for the SIP is necessary to protect 

public health. In most cases, EPA 

conducts a lengthy and detailed review 

of a submitted SIP as part of the SIP 

approval process. This review involves 

an evaluation of many aspects of the SIP 

that are not directly related to the motor 

vehicle emissions budgets. In situations 

where new information becomes 

available that clearly indicates that the 

budgets in a submitted SIP are 

inadequate prior to EPA’s completed 

review of the entire SIP, we may 

determine that it is in the best interest 

of public health to issue a separate 

finding of inadequacy before going 

forward with a SIP approval and/or 

disapproval action. As a result, this final 

rule reserves EPA’s ability to change a 

previous finding to a finding of 

inadequacy as provided by the existing 

adequacy process with public comment 

where the Agency deems necessary. 

F. Adequacy Provisions Not Affected by 

This Rulemaking 

1. Description of Final Rule 

This final rule does not change any of 

the existing adequacy criteria in the 

conformity regulation (§ 93.118(e)(4)). 

Furthermore, the rule continues to 

provide that reliance on a submitted 

budget for determining conformity is 

deemed to be a statement by the MPO 

and DOT that they are not aware of any 

information that would indicate that 

emissions consistent with such a budget 

would cause or contribute to any new 

violation, increase the frequency or 

severity of an existing violation, or 

delay timely attainment of the relevant 

standards (§ 93.118(e)(6)). These 

provisions were not affected by the 

court decision; therefore, EPA did not 

address these provisions in this 

rulemaking. 

2. Rationale and Response to Comments 

One commenter objected to an alleged 

presumption inherent in § 93.118(e)(6) 

of the conformity rule. Prior to EPA’s 

approval of a SIP, § 93.118(e)(6) requires 

the MPO and DOT’s conformity 

determination to be considered a 

statement that the MPO and DOT are 

not aware of any information that would 

indicate that emissions consistent with 

a submitted SIP would violate the Clean 

Air Act’s requirements that 

transportation activities not cause or 

worsen a violation or delay timely 

attainment of the air quality standards. 

The commenter stated, however, that 

this presumption may not lawfully be 

substituted for the affirmative 

determination that an MPO is required 

to make under Clean Air Act section 

176(c)(2)(A) or that DOT is required to 

make under Clean Air Act section 

176(c)(1). The commenter also indicated 

that the regulatory requirement in 

§ 93.118(e)(6) effectively relieves MPOs 

and DOT of meeting these statutory 

requirements before a SIP has been 

submitted or after a SIP has been 

approved. In the commenter’s opinion, 

this provision implies that EPA assumes 

the statutory criteria are satisfied if a 

budget is from an approved SIP, and 

therefore, silently waives any 

requirement that these criteria be 

addressed in such cases. The 

commenter also argued that the budget 

test demonstrated for select analysis 

years over the time frame of a 

transportation plan does not fully satisfy 

the statutory requirement that 

transportation activities conform to the 

SIP and not cause or worsen air quality 

violations in every year consistent with 

Clean Air Act section 176(c)(1)(A) and 

(B). 

40046 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

In this rulemaking, EPA did not 

propose any changes to the rule’s 

existing § 93.118(e)(6) provision. 

Therefore, EPA cannot address this 

comment in today’s final rule and is not 

re-opening this aspect of the conformity 

rule in this action. 

Furthermore, EPA does not agree that 

there is a presumption inherent in 

§ 93.118(e)(6) of the rule, nor do we 

agree with the commenter’s 

interpretation of § 93.118(e)(6) as it 

relates to the statutory requirements 

before a SIP is submitted and after a SIP 

has been approved. When EPA 

established the § 93.118(e)(6) 

requirement in the 1997 conformity 

rule, we did so as another ‘‘check’’ to 

ensure that submitted SIPs and budgets 

are appropriate to use in conformity 

determinations before such SIPs and 

budgets are approved. EPA’s adequacy 

review is a cursory review of the SIP 

and motor vehicle emissions budgets to 

ensure that the minimum adequacy 

criteria are met before a submitted SIP 

is used in a conformity determination. 

Therefore, we included § 93.118(e)(6) in 

the 1997 final rule to share 

responsibility with the MPO and DOT 

for ensuring that the use of submitted 

budgets would not cause or contribute 

to any new violation; increase the 

frequency or severity of any existing 

violation; or delay timely attainment of 

the air quality standards. This provision 

clarifies that, in the absence of an EPA 

approved SIP, the MPO and DOT may 

not base conformity determinations on 

submitted SIPs that they have reason to 

believe do not satisfy Clean Air Act 

requirements. 

Once EPA has approved a SIP, 

however, we have always held that 

conformity to that approved SIP fulfills 

the Clean Air Act’s conformity 

requirements. Section 176(c)(2)(A) of 

the Act specifically requires conformity 

determinations to show that ‘‘emissions 

expected from implementation of such 

plans and programs are consistent with 

estimates of emissions from motor 

vehicles and necessary emission 

reductions contained in the applicable 

implementation plan.’’ Consistent with 

the Clean Air Act, section 93.101 of the 

conformity rule defines an ‘‘applicable 

implementation plan’’ as the portion(s) 

of a SIP, or most recent revision thereof, 

that has been approved by EPA. When 

EPA approves a SIP it is because we 

have concluded that the SIP and 

budgets are consistent with the SIP’s 

purpose for attaining or maintaining a 

given air quality standard. Thus, since 

EPA promulgated the original 

conformity rule in 1993 (58 FR 62188), 

the budget test has been the mechanism 

that EPA believes is appropriate for 

meeting the statutory requirements for 

demonstrating conformity once a SIP 

becomes available for conformity 

purposes. Other tests or analyses in 

addition to the budget test have never 

been required by the conformity rule 

once a SIP is approved and EPA has not 

reopened this issue in this rulemaking. 

EPA also disagrees with the 

commenter’s statement that the 

conformity rule’s current budget test 

and regional emissions analysis year 

requirements are inconsistent with the 

Clean Air Act. The Clean Air Act does 

not address the specific time frame or 

years in which conformity emissions 

tests or analyses must be conducted. 

Since the November 24, 1993 

conformity rule (58 FR 62188), EPA has 

maintained that once a budget becomes 

available for conformity purposes a 

demonstration of conformity for specific 

budget test years as described in 

§ 93.118 is sufficient for meeting the 

Clean Air Act requirements and 

ensuring that emissions from 

transportation activities do not cause 

violations, worsen existing violations or 

delay timely attainment of the air 

quality standards. In addition, EPA has 

always held that prior to a submitted 

SIP, the interim emissions tests as 

required by § 93.119 of the current rule 

are also appropriate for meeting the 

statutory requirements (58 FR 62188).

Conducting conformity 

determinations, including regional 

emissions analyses to satisfy §§ 93.118 

and 93.119 requirements, demands a 

significant amount of state and local 

resources. Therefore, EPA believes it 

would be impractical and overlyburdensome to require MPOs and state 

transportation agencies to conduct the 

applicable conformity test and regional 

emissions analysis for every year of a 

20-year transportation plan. Based on 

EPA’s interpretation of the Clean Air 

Act, we believe that the current rule’s 

conformity test and emissions analysis 

year requirements are consistent with 

the statute, reasonable to implement and 

protective of public health. Again, EPA 

has not reopened this aspect of the 

conformity rule in this rulemaking, 

although we are clarifying § 93.118 as 

described in Section XXIII. of this final 

rule. 

The same commenter also expressed 

concern over how EPA has applied the 

adequacy criteria established in 

§ 93.118(e)(4) of the conformity rule to 

certain submitted SIPs. Specifically, the 

commenter objected to adequacy 

findings for submitted SIPs that, (1) lack 

a control strategy that identifies all the 

control measures needed for reasonable 

further progress, attainment or 

maintenance, or (2) lack either fully 

adopted measures that satisfy the 

requirements of 40 CFR 51.121 or 

written commitments to adopt specific 

measures that have been conditionally 

approved pursuant to Clean Air Act 

section 110(k)(4). The commenter argues 

that EPA has failed to adhere to the 

requirements of the Clean Air Act and 

conformity rule when we issue 

adequacy findings for submitted SIPs 

that rely on enforceable commitments to 

adopt additional control measures. In 

cases where additional mobile source 

controls are needed to satisfy a SIP’s 

enforceable commitments, the 

commenter believed that the motor 

vehicle emissions budgets in such SIPs 

cannot be adequate to provide for 

attainment, since the budgets do not 

reflect the emissions reductions from 

the additional measures. As a result, the 

commenter requested that EPA clarify 

that enforceable commitments may not 

be relied upon to make an adequacy 

finding for SIPs that fail to contain 

sufficient, adopted, enforceable control 

measures to meet the statutory 

requirements for reasonable further 

progress, attainment or maintenance. 

The commenter believed that such a 

clarification would reaffirm the 

conformity rule’s requirements that only 

SIPs that contain sufficient control 

measures to demonstrate attainment can 

be found adequate. 

In this rulemaking, EPA did not 

propose changes or clarifications to the 

existing adequacy criteria listed in 

§ 93.118(e)(4). This rulemaking only 

addresses the process by which EPA 

finds submitted SIPs adequate for 

conformity purposes, in accordance 

with the March 1999 court decision. 

The existing adequacy criteria were 

established in the 1997 conformity rule 

(62 FR 43780) and were not impacted by 

the court decision. Therefore, EPA is not 

revising these criteria nor reopening this 

aspect of the conformity rule in this 

action. 

EPA also disagrees with the 

commenter’s position that SIPs that rely 

on enforceable commitments fail to 

meet the adequacy criteria established 

in § 93.118(e)(4) of the rule. Section 

93.118(e)(4) of the conformity rule does 

not require that all necessary control 

measures be identified and adopted to 

find a submitted SIP adequate. The 

adequacy criteria in the conformity rule 

only requires a budget to come from a 

submitted SIP that provides for 

reasonable further progress, attainment 

or maintenance of a given standard. The 

relevant section of the rule, 

§ 93.118(e)(4)(iv), states that a submitted 

SIP is adequate if: ‘‘The motor vehicle 

emissions budget(s), when considered 

together with all other emissions 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40047

sources, is consistent with applicable 

requirements for reasonable further 

progress, attainment, or maintenance 

***’’. This provision of the rule only 

requires that the total emissions allowed 

by the SIP, including the motor vehicle 

emissions budgets, are consistent with 

the Clean Air Act’s purpose of the SIP 

(e.g., attainment). This provision of the 

rule does not require a submitted SIP to 

include all of the specific control 

measures necessary to meet its statutory 

purpose. 

Furthermore, EPA disagrees with the 

commenter that budgets from SIPs that 

include enforceable commitments 

cannot be adequate to provide for 

attainment. Clean Air Act provisions 

that address control strategy SIPs, such 

as sections 110(a)(2)(A), 172(c) and 182, 

require SIPs to contain a control strategy 

that provides sufficient emission 

reductions to demonstrate attainment by 

the statutory deadline. EPA believes that 

the use of enforceable commitments as 

a limited part of an overall control 

strategy for a SIP is reasonable and 

consistent with these provisions of the 

Clean Air Act. Therefore, EPA believes 

that where we approve or find adequate 

a SIP control strategy that includes an 

enforceable commitment, EPA’s 

approval or adequacy finding for the 

motor vehicle emissions budgets in such 

a SIP would also be appropriate. EPA 

believes that as long as the budgets, in 

addition to all other emission sources 

and controls identified in the SIP 

(including any enforceable 

commitments), are consistent with a 

SIP’s purpose of attaining or 

maintaining a given air quality standard, 

conformity to such budgets will also be 

consistent to the SIP’s clean air goals. 

EPA also believes that SIPs that 

include enforceable commitments are 

consistent with both 40 CFR 51.121 

relating to SIP control measures and 

Clean Air Act section 110(k)(4) 

requirements regarding conditional 

approvals. 40 CFR 51.281 requires that 

in cases where a SIP relies on a specific 

regulation as the basis for emissions 

reductions, that regulation must be 

properly adopted and copies of it must 

be submitted to EPA. This provision, 

however, does not require SIPs to 

consist only of rules that have been 

enacted as regulations and has no 

bearing on our ability to find a 

submitted budget adequate for 

conformity purposes. Clean Air Act 

section 110(k)(4) gives EPA the 

authority to conditionally approve a SIP 

that contains a commitment to adopt 

‘‘specific enforceable measures.’’ Such a 

conditional approval automatically 

converts to a disapproval if the 

measures are not adopted within one 

year, and thus the commitment itself is 

not enforceable. EPA believes, however, 

that SIPs that include adopted control 

measures as well as the enforceable 

commitment to identify and adopt 

additional measures can be found 

adequate and fully approved if such 

commitments meet various criteria and 

will achieve sufficient emission 

reductions to meet Clean Air Act 

deadlines and attain or maintain the air 

quality standards. In these cases, such 

commitments may extend beyond one 

year and are enforceable against the 

state if the state fails to meet the 

commitment by the specified time 

frame. EPA believes that it is 

appropriate to consider and approve the 

use of qualified enforceable 

commitments in cases where a state is 

not able to identify currently feasible 

measures to fill a small gap of needed 

emissions reductions. 

EPA’s current policy for approving 

SIPs that are based on enforceable 

commitments was recently upheld in a 

decision by the court of appeals, BCCA 

Appeal Group, et al., v. U.S. EPA, et al., 

348 F.3d 93 (5th Cir. 2003). A complete 

discussion of our position on the use of 

enforceable commitments can be found 

in EPA’s briefs in BCCA Appeal Group, 

et al., v. U.S. EPA, et al., 5th Cir. No. 

02–60017, September 20, 2002, at 115–

146 and TRANSDEF, et al., v. EPA, et 

al., 9th Cir. No. 02–7044, Respondent 

EPA’s Second Supplemental 

Memorandum, August 22, 2002, at 4–7. 

In addition, EPA’s complete response to 

these comments pertaining to 

conformity rule provisions that are not 

addressed in this rulemaking can be 

located in the response to comments 

document for this final rule. Copies of 

all these documents are located in the 

public docket for this rulemaking listed 

in Section I.B. of today’s action. 

Finally, one commenter stated that 

EPA should consider the entire SIP 

when determining adequacy of the 

budgets, as not doing so may permit 

conformity determinations to rely on 

SIPs that contain substantive flaws in 

inventories and control strategies for 

other sources. EPA would like to clarify 

that when we conduct an adequacy 

review of a submitted SIP, we always 

consider the SIP in its entirety as well 

as the budgets in that SIP. Section 

93.118(e)(4)(iv) of the conformity rule 

requires that ‘‘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 

***’’. Therefore, EPA is required to 

consider emissions from other sources 

and their contribution towards meeting 

the purpose of the SIP before issuing an 

adequacy finding. Furthermore, some 

SIPs such as limited maintenance plans 

and those SIPs that qualify for EPA’s 

insignificance policy do not contain 

budgets where certain findings are 

made. In these cases, EPA also focuses 

on the entire SIP and how such SIPs 

qualify for these specific policies. See 

the June 30, 2003 proposal to this final 

rule (68 FR 68983–4) for more 

information about EPA’s adequacy 

review of SIPs that do not contain motor 

vehicle emissions budgets.

XVI. Non-Federal Projects 

A. Description of Final Rule 

EPA is amending § 93.121(a) of the 

conformity rule so that regionally 

significant non-federal projects can no 

longer be advanced during a conformity 

lapse unless they have received all 

necessary state and local approvals prior 

to the lapse. Non-federal projects are 

projects that are funded or approved by 

a recipient of federal funds designated 

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

Transit Laws, but that do not require 

any FHWA/FTA funding or approvals. 

Under this final rule, recipients of 

federal funds cannot adopt or approve a 

regionally significant, non-federal 

project unless it is included in a 

currently conforming plan and TIP or is 

reflected in the regional emissions 

analysis supporting a currently 

conforming plan and TIP. The definition 

of non-federal project ‘‘approval’’

should be decided on an area-specific 

basis through the interagency 

consultation process, and should be 

formalized in the area’s conformity SIP. 

For more information on how areas have 

defined the point of final approval for 

a regionally significant non-federal 

project, see EPA’s June 30, 2003 

proposed rule (68 FR 38984), which is 

consistent with EPA’s May 14, 1999 

guidance that implements the court 

decision. 

B. Rationale and Response to Comments 

In its ruling, the court found 

§ 93.121(a)(1) of the 1997 conformity 

rule to be in violation of Clean Air Act 

section 176(c)(2)(C). This provision of 

the 1997 rule had allowed state or local 

approval of transportation projects in 

the absence of a currently conforming 

plan and TIP. The court found that the 

Clean Air Act requires all non-exempt 

projects subject to the conformity rule, 

including regionally significant nonfederal projects, to come from a 

conforming plan and TIP (or included in 

their supporting regional emissions 

analysis) to be funded or approved. 

However, the court also noted that once 

40048 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

a non-federal project receives all 

appropriate state or local approvals, it 

need not meet any further conformity 

requirements. 

Commenters generally concurred with 

EPA’s proposed amendments to 

§ 93.121(a) as being consistent with the 

court decision. One commenter stated 

that it is reasonable to treat federal and 

regionally significant non-federal 

projects in like manner so that neither 

type of project can proceed during a 

lapse, as required by the court. Another 

commenter also agreed that the 

definition of non-federal project 

‘‘approval’’ should be determined 

through the interagency consultation 

process. 

One commenter, however, requested 

that EPA clarify the required approach 

for approving non-federal projects in 

isolated rural areas. As stated in the 

June 30, 2003 proposal, the conformity 

rule only applies to non-federal projects 

that are considered regionally 

significant, in that these projects must 

be included in a conforming 

transportation plan and TIP and/or the 

regional emissions analysis supporting a 

conforming plan and TIP. Isolated rural 

areas, however, are not required to 

develop metropolitan transportation 

plans and TIPs and are not subject to the 

conformity frequency requirements for 

plans and TIPs in § 93.104 (including 

the 3-year conformity update 

requirement). A conformity 

determination in isolated rural areas is 

required only when a new non-exempt 

project needs federal funding or 

approval. Therefore, the commenter 

regarded the proposed rule as being 

unclear about whether isolated rural 

areas would need to conduct a separate 

conformity analysis that includes a new 

non-federal project before such a project 

could be funded or approved. 

EPA refers this commenter to 

§ 93.121(b) of the current conformity 

rule that includes the requirements for 

regionally significant non-federal 

projects in isolated rural nonattainment 

and maintenance areas. Section 

93.121(b) states that no recipient of 

federal funds can approve or fund a 

regionally significant highway or transit 

project in an isolated rural area, 

regardless of funding source, unless: (1) 

The project was included in the regional 

emissions analysis supporting the most 

recent conformity determination; or (2) 

A new regional emissions analysis 

including the project and all other 

regionally significant projects expected 

in the isolated rural nonattainment or 

maintenance area demonstrates 

conformity. Such regional emissions 

analyses in isolated rural areas would 

include those projects in the statewide 

transportation plan and statewide TIP, 

including any existing or planned 

federal and regionally significant nonfederal projects, that are in the 

nonattainment or maintenance area. 

Although EPA has always believed 

that the Clean Air Act does not require 

project-level conformity determinations 

for regionally significant non-federal 

projects, the Clean Air Act does require 

such projects to be included in the 

regional emissions analysis supporting a 

conformity determination before 

funding or approval can be given. See 

the January 11, 1993 proposal to the 

November 24, 1993 conformity rule for 

further background (58 FR 3772–3773). 

Recognizing that isolated rural areas do 

not have transportation plans and TIPs, 

in the preamble to the November 24, 

1993 conformity rule (58 FR 62208) EPA 

states: ‘‘In isolated rural areas, nonfederal projects may be considered to 

have been included in a regional 

emissions analysis of the transportation 

plan and TIP if they are grouped with 

federal projects in the nonattainment or 

maintenance area in the statewide plan 

and STIP for the purposes of a regional 

emissions analysis.’’ Therefore, we 

would consider the statute’s conformity 

requirements to be satisfied in an 

isolated rural area if a regionally 

significant non-federal project is 

included in the area’s previous regional 

emissions analysis and conformity 

determination (provided the project’s 

design concept and scope have not 

changed significantly since the analysis 

and determination were made). If the 

project was not included in the previous 

regional emissions analysis and 

conformity determination, a new 

regional emissions analysis including 

the project must be completed. 

XVII. Conformity Consequences of 

Certain SIP Disapprovals 

A. Description of Final Rule 

Consistent with the June 30, 2003 

proposal, this final rule changes the 

point in time at which conformity 

consequences apply when EPA 

disapproves a control strategy SIP 

without a protective finding. 

Specifically, the final rule deletes the 

120-day grace period from § 93.120(a)(2) 

of the 1997 conformity rule, so that a 

conformity ‘‘freeze’’ occurs immediately 

upon the effective date of EPA’s final 

disapproval of a SIP and its budgets that 

does not include a protective finding. A 

conformity freeze means that only 

projects in the first three years of the 

transportation plan and TIP can 

proceed. During a freeze, no new plans, 

TIPs or plan/TIP amendments can be 

found to conform until a new control 

strategy SIP fulfilling the same Clean 

Air Act requirement as that which EPA 

disapproved is submitted, and EPA 

finds the budgets in that SIP adequate 

for conformity purposes. 

In cases where EPA does not first 

make an affirmative adequacy finding 

for a new control strategy revision that 

is submitted to address a disapproved 

SIP, EPA is also clarifying in 

§ 93.120(a)(2) of today’s rule that no 

new plans, TIPs or plan/TIP 

amendments can be found to conform 

during a freeze until EPA approves the 

submitted SIP revision. EPA is adding 

this clarification to § 93.120(a)(2) to 

address the situation when EPA 

conducts its adequacy review through 

the SIP approval process. This 

clarification was not included in the 

June 30, 2003 proposal; however, EPA 

does not believe that a reproposal is 

necessary to incorporate this minor 

revision in today’s final rule. This minor 

revision simply clarifies how the 

conformity process currently operates in 

practice and is a logical outgrowth of 

the June 2003 proposal that described 

how EPA can determine adequacy 

through the SIP approval process 

because such approval actions include a 

finding that a submitted SIP is adequate. 

See Section XV.C. above for more 

information on adequacy reviews that 

are conducted through the SIP approval 

process.

EPA will not issue a protective 

finding for our disapproval of a 

submitted control strategy SIP (e.g., 

reasonable further progress and 

attainment SIPs) if the SIP does not 

contain enough emission reduction 

measures, or commitments to such 

measures, to achieve its specific 

purpose of either demonstrating 

reasonable further progress or 

attainment. If EPA disapproves a SIP 

without giving it a protective finding, 

the budgets cannot be used for 

conformity upon the effective date of 

EPA’s disapproval action. See the June 

30, 2003 proposal for more information 

on issuing a protective finding when 

EPA disapproves a control strategy SIP. 

Today’s final rule does not impact the 

1997 conformity rule’s provisions for a 

SIP disapproval with a protective 

finding under § 93.120. This final rule 

also does not affect the 1997 conformity 

rule’s flexibility that aligned conformity 

lapses with Clean Air Act highway 

sanctions (§ 93.120(a)(1)). Today’s rule 

affects only the timing of conformity 

freezes for SIP disapprovals without a 

protective finding. 

B. Rationale and Response to Comments 

In its ruling, the court found the 120-

day grace period provided by 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40049

21See 59 FR 39859, ‘‘Selection of sequence of 

mandatory sanctions for findings made pursuant to 

section 179 of the Clean Air Act’’—final rule.

§ 93.120(a)(2) of the 1997 rule to be in 

violation of Clean Air Act section 

176(c)(1) and remanded it to EPA for 

further rulemaking. Specifically, the 

court said that where EPA disapproves 

a SIP without a protective finding there 

is no basis to believe that conformity of 

transportation plans and TIPs to the 

submitted budget in the disapproved 

SIP will not cause or contribute to new 

violations, increase the frequency or 

severity of existing violations, or delay 

timely attainment of the air quality 

standards. 

Under § 93.120(a)(2) of the 1997 rule, 

if EPA disapproved a submitted SIP or 

SIP revision without a protective 

finding, areas could use the 120-day 

grace period to complete a conformity 

determination that was already in 

progress. The court ruled that this grace 

period was not authorized by the statute 

because it would allow conformity to be 

demonstrated to a SIP that was 

determined not to be protective of the 

air quality standards. Therefore, we are 

eliminating the 120-day grace period 

from the conformity rule. 

Most comments on this rule revision 

supported the June 30, 2003 proposal. 

One commenter specifically stated that 

this change will clarify time periods and 

eliminate confusion regarding the 

conformity requirements when a SIP is 

disapproved. One commenter, however, 

did not fully agree with EPA’s proposal. 

This commenter argued that the 

proposed revision to § 93.120(a)(2) still 

allows budgets to be used for some 

period after EPA disapproves a SIP 

without a protective finding, since such 

budgets could still be used in a 

conformity determination until the 

disapproval action becomes effective. 

The commenter objected to any rule that 

would allow budgets to be given effect 

for conformity purposes when the 

disapproved SIP and budgets are not 

consistent with reasonable further 

progress, attainment or maintenance. 

EPA agrees that SIPs and budgets that 

are inconsistent with Clean Air Act 

requirements for reasonable further 

progress, attainment or maintenance, 

should not be used in future conformity 

determinations. However, EPA also 

believes that a specific point in the SIP 

disapproval process at which budgets 

become ‘‘disapproved’’ and unavailable 

for conformity purposes needs to be 

established to provide certainty and 

consistency between the conformity and 

SIP processes. In this final rule we are 

establishing that point in the process as 

the effective date of EPA’s SIP 

disapproval action. EPA has linked the 

immediate conformity consequences of 

a SIP disapproval without a protective 

finding to the effective date of that 

action to be consistent with an August 

4, 1994 rulemaking that established the 

timing and implementation of offset and 

highway sanctions following certain SIP 

failures under 40 CFR 52.31.21

Specifically, 40 CFR 52.31(d)(1) states 

that ‘‘the date of the [SIP disapproval] 

finding shall be the effective date as 

defined in the final action triggering the 

sanctions clock.’’ In the August 1994 

rulemaking, EPA has already concluded 

as a legal matter that a SIP disapproval, 

and by extension any consequences 

(e.g., sanctions, conformity freeze, etc.) 

associated with that disapproval, do not 

take effect until the effective date of 

EPA’s action in the Federal Register.

When EPA disapproves a SIP, the 

effective date of that action is generally 

only 30–60 days after the Federal 

Register publication of the disapproval. 

EPA believes that the minimum 30-day 

period is mandated by §§ 552(a)(1) and 

553(d) of the Administrative Procedure 

Act. These provisions require the 

publication of actions that may 

adversely affect areas in the Federal 

Register to include a minimum 30-day 

effective date. 

EPA also notes that such SIP 

disapprovals have occurred on a very 

infrequent basis, as EPA has only 

disapproved SIPs without a protective 

finding in three instances since the 1997 

conformity rule was promulgated. 

Furthermore, for a SIP to be used in a 

conformity determination prior to the 

effective date of its disapproval, EPA 

would have found the SIP budget 

adequate. Such findings that would 

provide for the use of a SIP in the 

conformity process prior to its 

disapproval would not be expected in 

all cases, especially if the SIP is so 

deficient as to ultimately be 

disapproved without a protective 

finding. Therefore, EPA believes the 

impact of this rule change will be 

limited and generally will not result in 

the use of disapproved budgets in the 

conformity process. 

The same commenter also argued that 

EPA’s approval of SIPs that include 

enforceable commitments to adopt 

additional future control measures for 

rate-of-progress, attainment or 

maintenance purposes, does not meet 

Clean Air Act requirements for these 

specific SIPs. To address this issue, the 

commenter requested that EPA revise 

§ 93.120 so that submitted SIPs that rely 

on enforceable commitments to adopt 

unspecified control measures could no 

longer be approved by EPA. The 

commenter argued that only SIPs that 

include adopted enforceable measures 

per 40 CFR 51.281 or written 

commitments to adopt specific 

measures that have been conditionally 

approved pursuant to Clean Air Act 

section 110(k)(4) can be approved. 

EPA did not propose revisions to 

§ 93.120 that would prohibit the full 

approval of SIPs that include 

enforceable commitments in this 

rulemaking, and therefore, cannot 

amend the conformity regulation to 

address this comment in today’s final 

rule. This rulemaking merely deletes the 

120-day conformity grace period from 

§ 93.120(a)(2) in accordance with the 

court decision. Further, the conformity 

rule only provides requirements for 

finding budgets adequate and does not 

include any limitations on EPA’s ability 

to approve SIPs. 

EPA also disagrees with the 

commenter’s position that SIPs that rely 

on enforceable commitments cannot be 

fully approved for the same reasons 

stated in Section XV.F.2. of this final 

rule. Furthermore, EPA does not believe 

the conformity regulations are the 

appropriate vehicle for specifying the 

criteria for approving SIP submissions. 

A more comprehensive response to this 

comment, including EPA’s rationale, is 

included in the complete response to 

comments document in the public 

docket for this final rule. For 

information on how to access materials 

in the docket, see Section I.B. of this 

action. 

XVIII. Safety Margins 

A. Description of Final Rule

As proposed, EPA is deleting 

§ 93.124(b) of the conformity rule that 

provided a narrowly targeted flexibility 

to areas with SIPs that had been 

submitted prior to the publication date 

of the original November 24, 1993 

conformity rule. Under this provision, if 

an approved SIP submitted before 

November 24, 1993, had included a 

safety margin, but did not specify how 

the safety margin was to be used, an 

area could submit a revision to the SIP 

and specifically allocate all or a portion 

of the safety margin to the SIP’s motor 

vehicle emissions budget(s). The 1997 

rule allowed this SIP revision to become 

effective for conformity purposes before 

the revision had been approved by EPA. 

EPA is not aware of any nonattainment 

or maintenance areas that are currently 

affected by the elimination of this 

provision. 

B. Rationale and Response to Comments 

The court decision found that 

§ 93.124(b) violated the Clean Air Act 

because it allowed a submitted but 

40050 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

22NSR Workshop Manual PSD and 

Nonattainment Area Permitting—Draft, October 

1990, page C. 36.

unapproved SIP revision to supersede 

an approved SIP. The court ruled that 

EPA must fully approve these safety 

margin allocations into the SIP before 

they can be used for conformity, 

regardless of whether the SIP revision 

and safety margin was submitted before 

or after our November 1993 conformity 

rule. 

Although the court eliminated 

§ 93.124(b) for the use of safety margins 

in previously approved SIPs, the 

majority of areas that had allocated 

safety margins to their budgets after 

November 24, 1993, were not affected 

by the court’s ruling. In general, areas 

that do not have approved SIPs can use 

submitted safety margins in conformity 

determinations once EPA finds the 

submitted SIP (and safety margin) 

adequate. Areas with approved SIPs that 

want to reallocate their safety margin for 

conformity purposes can do so once 

EPA has approved a SIP revision that 

specifically allocates all or a portion of 

the safety margin to a budget. Presently, 

no area is affected by the court’s ruling, 

since SIP submissions with safety 

margins have either been approved by 

EPA or did not revise a previously 

approved SIP. 

EPA received three comments on the 

elimination of this provision based on 

the court’s decision. Two commenters 

supported EPA’s proposal and 

highlighted the potential relationship 

between the allocation of a safety 

margin and an area’s ability to allow for 

growth in emissions from other source 

categories. One of these commenters 

specifically requested clarification on 

the benefits and impacts of assigning 

safety margins to motor vehicle 

emissions budgets. EPA agrees that the 

allocation of a safety margin to an area’s 

budget can be an effective means to 

facilitate future conformity 

determinations. However, EPA notes 

that the allocation of a safety margin to 

the on-road transportation sector could 

impact an area’s ability to allow growth 

in emissions from other source sectors 

(e.g., stationary sources). State and local 

transportation and air quality agencies 

and other affected parties should always 

consult on whether a safety margin is 

appropriate for conformity in a given 

area. 

Another commenter requested that 

the conformity rule be amended to 

require that maintenance areas 

demonstrate that Prevention of 

Significant Deterioration (PSD) 

increments will not be exceeded if the 

area allocates a safety margin that would 

allow on-road motor vehicle emissions 

to grow up to the level that is consistent 

with attainment for the area. This 

comment is relevant only to NO2 and 

PM10 maintenance areas, as EPA has not 

established PSD increments for carbon 

monoxide or ozone precursors. EPA has 

also established increments for sulfur 

dioxide (SO2); however, transportation 

conformity does not apply in SO2

nonattainment and maintenance areas 

because on-road motor vehicles are not 

significant contributors to SO2 air 

quality problems in these areas. 

EPA does not agree that the 

transportation conformity rule needs to 

be amended to address this comment. 

Rather, EPA believes that the Clean Air 

Act and existing guidance and 

regulations are sufficient to prevent 

PM10 and NO2 maintenance areas from 

exceeding the amount of PM10 or NO2

increment that is available when these 

areas allocated safety margins to their 

budgets and NO2 and/or PM10

increments have been triggered. First, 

section 175A of the Clean Air Act 

requires that an area’s maintenance plan 

must demonstrate that the area can 

maintain the relevant air quality 

standard for a period of 10 years. 

According to EPA’s ‘‘General Preamble 

for the Implementation of Title I of the 

Clean Air Act Amendments of 1990’’ the 

maintenance plan must either 

demonstrate that future emissions will 

not exceed emissions that existed at the 

time that the request for redesignation 

was made or conduct a modeling 

analysis that shows the future mix of 

sources, emissions rates and control 

strategies for the area will not result in 

any violations of the air quality 

standard. At a minimum, areas should 

provide for some growth in stationary 

source emissions in their maintenance 

plans, where applicable. Therefore, any 

safety margin available would be 

emissions over and above the total 

amount of expected emissions, 

including growth in sources affected by 

PSD requirements. 

Second, the PSD program provides an 

opportunity for the permit applicant 

and the state to consult on how to 

address the allocation of a safety margin 

to the budgets while the PSD permit 

application is being prepared. Such 

consultation between the state and the 

potential source of NO2 or PM10

emissions helps to ensure that 

maintenance of the relevant national 

ambient air quality standard(s) is still 

achieved. Safety margins are expressed 

as a tons per day emissions rate for the 

entire nonattainment or maintenance 

area. PSD increments are expressed as a 

concentration of the pollutant in the 

ambient air (e.g., μg/m3) in the area 

impacted by the emissions from the 

stationary source. States are encouraged 

to evaluate periodically whether an 

increment is available to be used by 

sources that are or will be applying for 

a PSD permit. If a state identifies a 

potential problem, the state could take 

timely action to address the problem. 

EPA’s guidance 22 indicates that a 

source which is applying for a PSD 

permit should consult with state and 

local agencies to determine the 

parameters that should be used to model 

emissions from on-road sources in the 

area that will be impacted by emissions 

from the source. During the course of 

this consultation, the state or local air 

agency should advise the applicant on 

how to properly account for on-road 

motor vehicle emissions in the area 

including the use of any portion of a 

safety margin that has been established 

for conformity in the SIP. In the event 

that a permit applicant encounters 

difficulty in satisfying the requirements 

for an increment analysis, the air quality 

agency would have the option of 

appropriately revising its SIP to allow 

the source to receive a PSD permit and 

adjust the safety margin allocation, if 

necessary. Finally, EPA notes that 

neither the Clean Air Act nor EPA’s 

regulations and guidance require areas 

to assess increment consumption in 

connection with conformity 

determinations; this assessment is 

conducted only in connection with PSD 

permitting and periodic updates.

XIX. Streamlining the Frequency of 

Conformity Determinations 

A. Description of Final Rule 

EPA is finalizing several revisions to 

the frequency requirements listed in 

§ 93.104 of the conformity rule, 

consistent with the June 30, 2003 

proposal. Specifically, we are 

eliminating § 93.104(c)(4) that required 

an MPO and DOT to determine 

conformity of the TIP within six months 

of the date that DOT determined 

conformity of the transportation plan. 

As a result of this rule revision, a TIP 

conformity determination will no longer 

be triggered upon DOT’s conformity 

determination for the transportation 

plan. A conformity determination for 

the TIP will only be required when it is 

updated or amended, in accordance 

with § 93.104(c)(1) and (c)(2). In 

addition, a conformity determination 

and new regional emissions analysis for 

the TIP will be required no less 

frequently than every three years, per 

§ 93.104(c)(3). 

EPA is also finalizing several rule 

revisions to streamline § 93.104(e) of the 

rule. In particular, we are eliminating 

§ 93.104(e)(1) that required all 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40051

nonattainment and maintenance areas to 

determine conformity within 18 months 

of November 24, 1993 (i.e., the date that 

EPA originally promulgated the 

conformity rule, 58 FR 62188). At this 

point in time, § 93.104(e)(1) is no longer 

relevant for any area, and therefore, we 

are removing it from the rule. 

In addition, EPA is finalizing two 

revisions to § 93.104(e)(3), which 

requires a conformity determination 

within 18 months of EPA’s approval of 

a SIP. First, we are specifying that this 

18-month clock begins on the effective 

date of EPA’s approval of the SIP. This 

clarification will resolve any ambiguity 

in the current rule as to when this 18-

month clock begins. 

The second revision to § 93.104(e)(3) 

will require a conformity determination 

only when a conformity determination 

has not already been made using that 

same budget in the newly-approved SIP. 

That is, if an area determined 

conformity using adequate budgets from 

a submitted SIP, and those budgets had 

not changed before EPA subsequently 

approves the submitted SIP, then the 

area would not have to redetermine 

conformity within 18 months of EPA’s 

approval of the SIP. EPA believes that 

if approved budgets have already been 

used in a conformity determination, 

there is no added environmental benefit 

in requiring another conformity 

determination to be made within 18 

months of EPA’s approval of a SIP that 

contains these same budgets. EPA notes 

that budgets are unchanged if they are 

for the same pollutant or precursor, the 

same quantity of emissions, and the 

same year.

EPA is also eliminating § 93.104(e)(4), 

which required a conformity 

determination to be made within 18 

months of EPA’s approval of a SIP that 

adds, deletes, or changes a TCM. As 

stated in the June 30, 2003 proposal to 

this final rule, EPA believes that this 

requirement is redundant with the 

requirements in §§ 93.104(e)(2) and (3) 

relating to conformity determinations 

after other SIP approvals, and therefore, 

is unnecessary. 

Finally, EPA is making two changes to 

§ 93.104(e)(5), which requires a new 

conformity determination within 18 

months of EPA’s promulgation of a 

federal implementation plan (FIP). First, 

the final rule indicates that the clock for 

this requirement also starts on the 

effective date of EPA’s promulgation of 

a FIP to be consistent with the start date 

of the other SIP triggers found in 

§ 93.104(e). Second, EPA is deleting the 

phrase ‘‘or adds, deletes, or changes 

TCMs,’’ for the same reasons that we are 

deleting § 93.104(e)(4) discussed above. 

EPA believes that the purpose of 

§ 93.104(e)(5) will be adequately served 

by the requirement to show conformity 

after EPA promulgates a FIP containing 

a budget. 

B. Rationale and Response to Comments 

In the first conformity rule proposal 

published in January 1993, we stated, 

‘‘EPA believes conformity 

determinations should be made 

frequently enough to ensure that the 

conformity process is meaningful. At 

the same time, EPA believes it is 

important to limit the number of triggers 

for conformity determinations in order 

to preserve the stability of the 

transportation planning process’’ (58 FR 

3775). As a result of these dual goals 

and based on experience gained through 

implementing the conformity rule to 

date, we are eliminating some of the 

frequency requirements found in 

§ 93.104, and streamlining others. EPA 

believes that this final rule will simplify 

the current conformity requirements 

without compromising the 

environmental benefits of the 

conformity program. 

Under today’s rule, EPA concludes 

that conformity determinations will 

continue to be required frequently 

enough to ensure that the process is 

meaningful and consistent with the 

Clean Air Act. In this final rule, we have 

not made any changes to the 

requirement that new or revised plans, 

TIPs and projects must demonstrate 

conformity before they can be funded or 

approved. Furthermore, the final rule 

retains the requirement to determine 

conformity of transportation plans and 

TIPs at least every three years, as 

required by section 176(c) of the Clean 

Air Act. We are eliminating only those 

frequency requirements that are not 

expressly required by the Clean Air Act 

and that we now believe are either 

outdated or redundant with other 

requirements. 

In general, commenters supported 

EPA’s proposals to streamline the 

conformity frequency requirements. 

Most commenters agreed that these 

changes would improve the conformity 

rule and would serve to avoid confusion 

and simplify the overall conformity 

process. In addition, some commenters 

believed that these rule changes would 

reduce the number of required 

conformity determinations, and 

therefore, would conserve limited 

planning resources. 

One commenter, however, opposed 

the elimination of the 6-month TIP 

clock in § 93.104(c)(4), stating that this 

rule change would result in MPOs 

having always to demonstrate 

conformity of the plan and TIP at the 

same time. This commenter believed 

that by eliminating the 6-month TIP 

clock, MPOs will lose the extra time and 

flexibility provided by the § 93.104(c)(4) 

provision that may be needed to update 

the TIP and demonstrate conformity 

after a conformity determination for the 

plan has been made. 

EPA does not believe that the 

elimination of § 93.104(c)(4) and the 6-

month TIP clock will result in the loss 

of time or flexibility for MPOs as this 

commenter has suggested. In contrast, 

EPA believes that this rule change will 

result in greater flexibility and less 

demands on planning resources to meet 

the conformity requirements. 

As stated in the June 30, 2003 

proposal, EPA believes that 

§ 93.104(c)(4) is unnecessary because of 

other conformity and planning 

requirements that are in place. 

Therefore, the rule change will have no 

practical effect on the conformity 

process in most cases. According to the 

transportation planning statute (23 

U.S.C. 134(h)(3)(C)), projects in the TIP 

must be consistent with the 

transportation plan to be federally 

funded or approved. Therefore, in cases 

where a plan is changed and a 

conformity determination is made, areas 

will continue to ensure that their TIPs 

also conform and are consistent with the 

plan to advance projects, regardless of 

whether the 6-month TIP trigger is part 

of the conformity regulation. If a plan 

changes in years also covered by the 

TIP, then the TIP would also be updated 

or amended to meet the planning 

regulations at the same time. Under 

today’s final rule, conformity 

determinations will continue to be 

required for such plan and TIP changes. 

However, EPA’s final rule and DOT’s 

planning regulations would not require 

a TIP revision and conformity 

determination in the case where a plan 

is changed in a manner that does not 

affect the TIP. 

Another commenter requested EPA to 

remove all TIP references and actions 

from the conformity rule, since the TIP 

is required to be consistent with a 

conforming transportation plan. The 

commenter believed that DOT’s 

planning regulations and their 

originating legislation make EPA’s TIP 

requirements and actions redundant and 

unnecessary, and that the removal of 

such requirements would improve the 

conformity rule. 

EPA did not propose the removal of 

all TIP references and conformity 

requirements in this rulemaking, and 

therefore, cannot address the 

commenter’s request in this final rule. 

Furthermore, EPA believes the current 

references and conformity requirements 

for TIPs are necessary to be consistent 

40052 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

with the Clean Air Act. The current 

Clean Air Act section 176(c)(2)(A) 

specifically states that ‘‘no 

transportation plan or transportation 

improvement program may be 

adopted* * *’’ until such plans and 

programs are shown to demonstrate 

conformity. Therefore, EPA believes that 

the corresponding regulations must 

reflect the statutory requirements for 

both the transportation plan and TIP. 

XX. Latest Planning Assumptions 

A. Change to Latest Planning 

Assumptions Requirement 

1. Description of Final Rule 

EPA is amending § 93.110(a) to 

change the point in the conformity 

process when the latest planning 

assumptions are determined. This final 

rule will allow conformity 

determinations to be based on the latest 

planning assumptions that are available 

at the time the conformity analysis 

begins, rather than at the time of DOT’s 

conformity determination for a 

transportation plan, TIP, or project. 

Under today’s final rule, the interagency 

consultation process should be used to 

determine the ‘‘time the conformity 

analysis begins’’ as described in B.1. 

and C.1 of this section. 

2. Rationale and Response to Comments

EPA believes that today’s final rule 

will make the conformity rule more 

workable for implementers while 

continuing to meet the basic Clean Air 

Act requirement that the latest planning 

assumptions be used in conformity 

determinations. Most commenters 

agreed and strongly supported EPA’s 

proposed change to the latest planning 

assumptions requirement. Some of these 

commenters noted that the proposed 

changes to § 93.110(a) would provide 

more certainty to the process and 

conserve valuable state and local 

resources. 

A few commenters, however, did not 

agree with EPA’s proposed change. One 

commenter argued that the proposed 

rule violates the Clean Air Act by 

allowing conformity determinations to 

be based upon information other than 

‘‘the most recent population, 

employment, travel and congestion 

estimates.’’ This same commenter also 

stated that the proposed change would 

undermine reasoned decision-making 

by making the most accurate and 

reliable information irrelevant since 

data developed after the time the 

analysis begins would not be required to 

be considered until the next conformity 

determination. Another commenter 

reiterated this concern by stating that 

the proposed rulemaking improperly 

locks-in the planning assumptions that 

exist at the start of the conformity 

determination process, even though the 

actual conformity determination is 

typically made months later when more 

recent information could be available. 

EPA disagrees that today’s proposal is 

inconsistent with the Clean Air Act. 

Section 176(c)(1) of the Clean Air Act 

requires conformity determinations to 

be based on the most recent data and 

emissions estimates that are available. 

However, the Clean Air Act does not 

explicitly define the point in the 

conformity process when the most 

recent estimates should be determined. 

Therefore, EPA believes that this 

ambiguity in the Clean Air Act allows 

for a procedural change in how the 

latest planning assumptions 

requirement is implemented. 

As stated in the proposal to this final 

rule, when EPA originally wrote the 

conformity rule in 1993, we did not 

fully envision how the requirement for 

the use of latest planning assumptions 

would be implemented in practice. 

Under the previous conformity rule, if 

an MPO had completed a regional 

emissions analysis for its plan and TIP 

conformity determinations, and new 

information became available as late as 

the day before DOT was scheduled to 

make its conformity determination, DOT 

was not able to complete its action, as 

the MPO would have had to revise the 

conformity analysis to incorporate the 

new data. EPA does not believe this 

situation is appropriate or consistent 

with the overall intent of the Clean Air 

Act to coordinate air quality and 

transportation planning. 

EPA also disagrees that the proposed 

rule revision would undermine 

decision-making and allow for the use 

of irrelevant information in the 

conformity process. Although EPA 

believes that conformity determinations 

should be based on the most recent data 

and planning information in accordance 

with the Clean Air Act, we also believe 

that the conformity rule should provide 

certainty in implementing the statute’s 

requirements. In other words, EPA 

believes that a conformity determination 

that is based on the most recent 

information available when that 

analysis is conducted should be allowed 

to proceed even if more recent 

information becomes available later in 

the conformity process. 

EPA believes it can provide this 

certainty, without compromising air 

quality, due to the iterative nature of the 

conformity process. A conformity 

determination based on the latest 

planning assumptions and emissions 

models is required at a minimum of 

every three years. In addition, the 

conformity rule (40 CFR 93.104) 

requires a conformity determination for 

plan and TIP updates and amendments 

and within 18 months of certain EPA 

SIP actions (e.g., when EPA finds an 

initially submitted SIP budget 

adequate). In the case where new data 

becomes available after an analysis has 

started, such information would be 

required in the next conformity 

determination to ensure that appropriate 

decisions concerning transportation and 

air quality are being made. Therefore, 

EPA does not believe this rule change 

will provide for the general use of 

‘‘irrelevant’’ data in the conformity 

process. Rather, EPA believes this rule 

change will provide a reasonable 

approach to ensuring that conformity is 

based on accurate and available 

information without causing 

unnecessary delays late in the 

transportation planning process. EPA 

concludes that today’s final rule is 

consistent with the Clean Air Act, as it 

provides a reasonable time at which 

latest planning assumptions are 

determined for use in a conformity 

determination. 

Two commenters also expressed 

concern about the proposed rule’s 

potential to eliminate the public’s 

involvement in the selection of latest 

planning assumptions used in 

conformity determinations. One of these 

commenters stated that the proposed 

rule change would defeat the ability of 

interested parties from playing a 

meaningful role in the decision-making 

process by making new information 

developed after public notice of the 

emissions analysis and conformity 

determination irrelevant. The other 

commenter requested clarification on 

the obligation of an MPO to revise a 

conformity determination to address 

public comment that questions an area’s 

use of the most recent planning 

information in the conformity analysis. 

EPA does not believe that today’s rule 

change will eliminate the public’s 

involvement in selecting the latest 

planning assumptions that are used in 

conformity determinations. For 

proposed transportation plan/TIP 

updates, amendments and conformity 

determinations, the public has an 

opportunity to comment on whether the 

conformity determination meets the 

conformity rule’s requirements for using 

the latest planning information. Under 

today’s rule, the public will still have 

this opportunity, as the amendment to 

§ 93.110(a) makes no changes to the 

public involvement requirements under 

§ 93.105(e). 

EPA also does not believe that this 

rule change will effectively alter an 

MPO or other designated agency’s 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40053

responsibility to respond to public 

comments in a manner consistent with 

the conformity rule’s requirements. 

Under today’s final rule, when an MPO 

or other designated agency conducts a 

conformity determination, it should 

document in its determination the ‘‘time 

the conformity analysis begins’’ as 

determined by interagency consultation, 

the date on which the analysis was 

started and the planning assumptions 

that were used. During the public 

process and comment period, the public 

will continue to have the opportunity to 

comment on all these aspects of the 

conformity analysis. If, for example, a 

member of the public expresses concern 

that planning information available 

before the beginning of the analysis was 

not used in the conformity 

determination, an MPO would have to 

address such concerns and explain why 

the information was not incorporated. If, 

when addressing this comment, the 

MPO and other interagency consultation 

partners determine that the information 

was available prior to the start date of 

the analysis, the MPO or other 

designated agency would be required to 

re-run its analysis to incorporate such 

data to meet the conformity rule’s 

requirements. 

In contrast to those commenters who 

favored the previous rule’s more 

stringent requirement, some 

commenters did not believe that the 

proposed change to § 93.110(a) would 

provide enough flexibility in 

implementing the latest planning 

assumptions requirement. Specifically, 

these commenters requested that EPA 

amend the conformity rule to define the 

‘‘most recent planning assumptions 

available’’ as those assumptions used to 

develop the most recent applicable SIP 

and motor vehicle emissions budget(s). 

Under the existing conformity rule, one 

commenter stated that the 

transportation sector can be unfairly 

forced to reduce emissions simply 

because planning assumptions have 

changed since the SIP was developed. 

Since the existing process can result in 

the use of different planning 

assumptions in SIPs and conformity, 

another commenter argued that the 

proposed rule still runs counter to 

Congressional intent and the Clean Air 

Act which is to provide for an integrated 

planning process. One commenter 

stated that both transportation and air 

quality agencies would benefit from 

using the same planning assumptions 

that were used for both conformity 

analyses and SIP development. Another 

commenter agreed with this approach, 

provided that the SIP was approved in 

the last five years. 

The final rule has not been changed 

from the June 30, 2003 proposal in 

response to these comments. In the 1993 

conformity rule (58 FR 62210), EPA 

stated that: ‘‘It should be expected that 

conformity determinations will deviate 

from SIP assumptions regarding VMT, 

growth, demographics, trip generation, 

etc., because the conformity 

determinations are required by Clean 

Air Act section 176(c)(1) to use the most 

recent planning assumptions.’’ For 

today’s rulemaking, EPA did not 

propose to alter this aspect of § 93.110 

as determined in the original conformity 

rule. Although EPA agrees that Congress 

intended for the integration of 

transportation and air quality planning 

through the conformity process, EPA 

believes that Congress also clearly 

intended for conformity to be based on 

the most recent planning information 

even if it differs from the assumptions 

used to develop the SIP and regardless 

of how recently a SIP was developed. 

The purpose of conformity is to ensure 

that emissions projected from planned 

transportation activities are consistent 

with the emissions level established in 

the SIP. If new planning assumptions 

introduced into the transportation and 

conformity processes result in an 

increase or decrease in projected 

emissions, EPA believes it is the 

responsibility of transportation and air 

quality agencies, along with other 

interagency consultation partners, to 

determine how best to consider the 

anticipated emissions change. In cases 

where projected emissions increase over 

the applicable SIP budget(s), the 

consultation process would be used to 

consider a revision to the transportation 

plan and TIP and/or the SIP to ensure 

that a conformity determination can be 

made and an area’s air quality goals are 

achieved.

B. Defining the Time the Conformity 

Analysis Begins 

1. Description of Final Rule 

In the June 30, 2003 proposal, EPA 

requested comment on how MPOs, state 

departments of transportation, transit 

agencies, and air quality agencies would 

define the ‘‘time the conformity analysis 

begins.’’ Based on the comments 

received, EPA is finalizing our proposed 

clarification for the start of the regional 

conformity analysis in § 93.110(a) of 

today’s final rule. Specifically, the final 

rule clarifies the time the conformity 

analysis begins as the point at which the 

MPO or other designated agency begins 

to model the impact of the proposed 

transportation plan, TIP or project on 

VMT and speeds and/or emissions for a 

conformity determination. This point 

should be determined through 

interagency consultation and used 

consistently for all future conformity 

determinations. 

For example, the beginning of the 

analysis for a transportation plan or TIP 

conformity determination might be the 

point at which travel demand modeling 

begins to generate the VMT and speed 

data that will be used to calculate 

emissions estimates for the conformity 

determination. For smaller MPOs and 

rural areas that do not use a travel 

demand model, the beginning of the 

conformity analysis might be the point 

at which VMT projections necessary to 

run the emissions model are calculated 

based on the most recent Highway 

Performance Monitoring System 

(HPMS), population and employment 

data that are available at that time. 

EPA does not, however, intend for the 

beginning of the analysis that will 

support a transportation plan or TIP 

conformity determination to be before 

VMT and emissions estimates have 

begun to be calculated. The following 

examples illustrate when the analysis 

has not yet begun: 

• When the initial list of projects for 

the plan and TIP have been developed 

or before those projects have been coded 

into the transportation network; 

• If travel or emissions modeling is 

conducted to preliminarily examine the 

impact of several potential projects or 

project alternatives on travel or 

emissions in the area; or 

• When an initial schedule for 

completing an analysis is developed 

during an interagency consultation 

meeting.

Whatever the case, any information and 

assumptions that become available 

before actual modeling for a conformity 

determination has commenced would 

be required to be considered in that 

conformity determination. 

2. Rationale and Response to Comments 

EPA received a number of comments 

with suggestions for defining the time 

the conformity analysis begins. After 

thorough consideration of these 

comments, EPA believes this final rule 

adequately describes our intentions for 

what criteria constitute the time the 

analysis ‘‘begins.’’

Other suggested approaches that we 

received included defining the 

beginning of the analysis as the date on 

which state and local agencies submit 

their projects to be included in the plan 

and TIP; the point where model 

parameters and inputs have been 

incorporated into the travel demand 

model; and, the time at which a project 

is adopted for inclusion into a plan or 

TIP. EPA did not believe that these 

40054 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

suggestions were consistent with our 

intentions of having the start of the 

analysis represent a point in the process 

when actual modeling of the travel or 

emissions impacts of the planned 

transportation system on air quality has 

begun, since these activities can occur 

some time before modeling for the 

conformity determination occurs. EPA 

believes that all new planning 

assumptions available at the time the 

actual travel or emissions modeling 

begins, could be incorporated in a 

conformity determination, and 

therefore, it would be unreasonable to 

not require such data to be used. 

One commenter suggested that the 

time the analysis begins should be 

necessarily after the interagency 

consultation process has been 

completed. EPA believes this approach 

for defining the start of the analysis 

could lead to confusion and is also 

inconsistent with our proposal, as the 

completion of the interagency 

consultation process could represent a 

point in time well after travel and/or 

emissions modeling have begun (e.g., 

the point in time when the conformity 

determination is made). 

Another commenter also suggested 

that determining the start of the analysis 

be the prerogative of the MPO, rather 

than determined through interagency 

consultation. EPA disagrees. EPA 

believes having the start of the analysis 

determined through interagency 

consultation is critical for ensuring that 

transportation and air quality planners 

work together to meet air quality goals. 

Several commenters also agreed that 

using the interagency consultation 

process to decide this issue is 

appropriate, as further discussed in C.2 

of this section). 

A few commenters requested that EPA 

provide further guidance in the final 

rule for defining the beginning of the 

analysis, as they interpreted the 

proposal to be ambiguous and the 

source of unintended consequences. 

EPA agrees with these commenters, and 

therefore, has defined the start of the 

conformity analysis in § 93.110(a) of 

today’s rule based on concepts 

described in the preamble to the 

proposed rule. In addition, EPA has 

provided further explanation and 

examples in the description of this final 

rule of what we intend the beginning of 

the conformity analysis to be. 

C. Implementation of Final Rule 

1. Description of Final Rule 

Today’s final rule relies on the 

interagency consultation process 

required by § 93.105(c)(1)(i) to 

determine when a conformity analysis 

reasonably begins in a given area. 

Section 93.105(c)(1)(i) already requires 

the consultation process to be used to 

decide which planning assumptions and 

models are available for use by the MPO 

or other designated agencies responsible 

for conducting conformity analyses. The 

definition of when the conformity 

analysis begins for a given area should 

be well documented through the 

interagency consultation process. New 

information (e.g., population or fleet 

data) that becomes available after the 

conformity analysis begins is not 

required to be incorporated into the 

current analysis if the analysis is on 

schedule, although an area could 

voluntarily include the new information 

at any time as appropriate. EPA 

encourages the MPO or other designated 

agency to use the interagency 

consultation process to inform other 

involved agencies of when a conformity 

emissions analysis has started for a 

given conformity determination. 

To support a valid conformity 

determination, the MPO or other 

appropriate agency should also 

document the following information: 

• How the ‘‘time the conformity 

analysis begins’’ has been defined 

through interagency consultation; 

• The calendar date that the 

conformity analysis began; and, 

• The planning assumptions used in 

the analysis.

Documenting this information in the 

actual conformity determination would 

inform the public of previous decisions 

regarding the use of latest planning 

assumptions, and will record when an 

analysis was begun, so that commenters 

can address any issues related to these 

decisions. 

Today’s final rule also clarifies that 

new data that becomes available after a 

conformity analysis has started is 

required to be used in the upcoming 

current conformity determination if a 

significant delay in the analysis has 

occurred before a substantial amount of 

work has been completed. For example, 

an MPO starts a conformity analysis and 

begins generating VMT estimates from 

the travel demand model. However, the 

MPO’s analysis is then delayed for six 

months. In this case, EPA believes it is 

reasonable to expect that an MPO 

should incorporate new planning 

information that became available 

during the six-month delay period. 

Under today’s final rule, the interagency 

consultation process would be used to 

determine whether a significant delay 

has occurred and whether new data that 

becomes available during a delay should 

be incorporated. 

EPA intends that in cases where areas 

adhere to their conformity 

determination schedules and such 

delays do not occur, the incorporation 

of new information that becomes 

available after the conformity analysis 

has begun is not required. The final rule 

only requires the incorporation of new 

information when an area falls 

significantly behind in completing a 

conformity analysis, as determined 

through interagency consultation. 

Areas should consider the availability 

of new planning assumptions when 

determining their conformity schedules. 

The consultation process should 

continue to be used to determine what 

are the most recent assumptions 

available for SIP development, so that 

they can be incorporated into the 

conformity process expeditiously. For 

example, if EPA is expected to find a 

new SIP budget adequate before the 

MPO or DOT’s conformity 

determination, conformity to the new 

SIP budget would be required. In such 

a case, transportation planners should 

use the more recent assumptions in the 

submitted SIP and consider them at the 

start of the conformity analysis, since 

the more recent assumptions would 

have been available through the 

consultation process when the SIP was 

being developed. State and local air 

agencies should continue to inform their 

transportation counterparts of new 

assumptions as they become available. 

This final rule addresses only when 

latest planning assumptions must be 

considered and does not change the 

requirement that DOT’s conformity 

determination of the transportation plan 

and TIP must be based on an analysis 

that is consistent with the proposed 

transportation system. For example, if a 

regionally significant project is 

significantly changed after the start of 

the conformity analysis, such a change 

must be reflected in the conformity 

analysis for the current determination. 

Likewise, a significant change in the 

design concept and scope of an 

emissions reduction program would 

also have to be reflected before DOT 

makes its conformity determination. 

Today’s proposal also does not change 

the requirements of § 93.122(a) which 

describes when emissions reduction 

credit can be taken in regional 

emissions analyses. Section 93.122(a)(2) 

continues to require that analyses reflect 

the latest information regarding the 

implementation of TCMs or other 

control measures in an approved SIP, 

even if a measure is cancelled or 

changed after the conformity analysis 

begins. In addition, § 93.122(a)(3) 

continues to require that DOT’s 

conformity determination be made only 

when regulatory control programs have 

been assured and will be implemented 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40055

as described in the SIP. However, 

consistent with the rule change on 

availability of latest planning 

assumptions, today’s rule allows areas 

to rely upon the latest existing 

information as documented at the 

beginning of the conformity analysis 

regarding the effectiveness of SIP 

control programs that are being 

implemented as described in the SIP 

(§ 93.110(e)).

Finally, § 93.122(a)(6) is similarly not 

amended by today’s action. The 

conformity rule continues to require 

that the conformity analysis be based on 

the same ambient temperature and other 

applicable factors used to establish the 

SIP’s motor vehicle emissions budget. 

2. Rationale and Response to Comments 

Many commenters agreed that the 

interagency consultation process should 

be central in determining the beginning 

of the conformity analysis. Given the 

unique circumstances of individual 

areas, some commenters believed that 

the interagency consultation process 

would provide a common sense 

approach to implementing the proposed 

§ 93.110(a). One commenter also 

believed that EPA’s approach for relying 

on interagency consultation for 

determining if an analysis is delayed 

and whether more recent data should be 

used is appropriate. This commenter 

argued that such an approach would 

provide for greater flexibility and local 

decisionmaking. EPA agrees with these 

comments to use the interagency 

consultation process to account for 

differences in the planning and 

conformity processes among individual 

nonattainment and maintenance areas. 

One commenter, however, expressed 

concern over EPA’s proposal to require 

the use of more recent data that has 

become available if an analysis is 

delayed. The commenter stated that this 

proposal lacked specificity and could 

potentially nullify the proposed 

flexibility provided by the revised 

§ 93.110(a). 

EPA believes that in cases where a 

significant delay in the start of the 

analysis has occurred and more recent 

data becomes available during that time, 

the new data must be included in the 

conformity determination. In response 

to this comment, EPA has clarified in 

the final rule that new data that 

becomes available after an analysis has 

begun is required to be used in the 

upcoming conformity determination if a 

significant delay in the analysis has 

occurred. As described above, EPA has 

provided further explanation and 

examples to more fully depict our 

intentions for this requirement in the 

description of this final rule. 

Interagency consultation would be used, 

following Section C.1. above, to decide 

whether a conformity analysis has been 

delayed and whether any new data has 

become available during the delay that 

would be incorporated into the 

conformity process. 

Another commenter requested that 

the final rule require an MPO to 

incorporate new planning assumptions 

that become available after an analysis 

has started, if changes to other aspects 

of a conformity determination (e.g., 

data, conclusions or assumptions) are 

made once the analysis has begun. In 

such cases, this commenter believed 

that the planning assumptions should 

again be reviewed, and if they have 

changed, such newer assumptions 

should be incorporated in the 

conformity determination along with 

any other changes the MPO is 

conducting. 

As previously stated, EPA believes 

that once a conformity analysis begins, 

it is appropriate to allow that analysis 

to continue without requiring the 

incorporation of newer planning 

information, provided the conformity 

analysis and determination remain on 

schedule, as determined through 

interagency consultation. EPA does not 

believe that new planning information 

should be required if changes to the 

conformity analysis are made that do 

not cause a significant delay. However, 

in this case, EPA encourages areas to 

consider incorporating new information 

that has become available since the 

analysis began if other changes are 

initiated and new data can also be easily 

incorporated. 

EPA believes it is appropriate to 

require the use of more recent planning 

assumptions that become available after 

a conformity analysis begins only if 

significant delays in completing the 

conformity analysis have occurred. 

Therefore, if an MPO or other 

designated agency initiates a change to 

the conformity analysis that causes a 

significant delay, EPA believes that any 

new planning information that has 

become available since the analysis 

began should be required in that 

conformity determination, as 

determined by the interagency 

consultation process. 

Finally, several commenters requested 

clarification on various aspects of 

implementing the use of latest planning 

assumptions in conformity. Specifically, 

one commenter requested EPA to 

indicate in the final rule what newer 

information that becomes available will 

be required in a conformity 

determination even after the latest 

planning assumptions have been agreed 

upon through interagency consultation. 

This commenter stated that the final 

rule should specify those assumptions 

to avoid ambiguity. 

EPA believes that § 93.110 of the 

current conformity rule provides a 

detailed description of the latest 

planning assumptions that must be 

incorporated in a conformity 

determination. For example, § 93.110(b) 

states that assumptions must be derived 

from the most recent estimates of 

current and future population, 

employment, travel, and congestion. 

Sections 93.110(c) and (d) require using 

the latest planning information on 

transit fares, service levels and 

ridership, as well as road and bridge 

tolls. In addition, § 93.110(e) specifies 

that conformity determinations must 

include the latest existing information 

regarding the effectiveness of 

transportation and other control 

measures that have been implemented. 

Under today’s rule, an area’s 

interagency consultation process would 

determine the most recent data and 

information available to meet § 93.110 

requirements at the beginning of the 

conformity analysis. Provided the 

analysis starts on time and adheres to 

the conformity determination schedule, 

any updates to this information would 

not be required to be used until the next 

conformity determination. 

However, this final rule does not 

change any other provision of the 

conformity rule. For example, this final 

rule does not change the requirement 

that DOT’s conformity determination of 

the transportation plan and TIP be based 

on an analysis that is consistent with 

the proposed transportation system. In 

addition, the final rule does not change 

the existing requirements for 

determining regional transportation 

emissions under § 93.122. For example, 

as described above, § 93.122(a)(2) 

continues to require that analyses reflect 

the latest information regarding the 

implementation of TCMs or other 

control measures in an approved SIP, 

even if a measure is cancelled or 

changed after the beginning of the 

conformity analysis. EPA believes the 

requirements of both §§ 93.110 and 

93.122 are clear and provide sufficient 

direction to implement today’s final 

rule, and therefore, EPA has not made 

any further clarifications to these 

requirements in response to this 

comment. 

Another commenter requested that 

EPA clarify in the final rule that MPOs 

may demonstrate conformity without 

being required to wait for changes in 

planning data that are not actually 

available. This commenter suggested 

that in some areas conformity 

determinations have been delayed to 

40056 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

23Under DOT’s current planning regulation, 

transportation plans in metropolitan nonattainment 

and maintenance areas need to be updated every 

three years and cover at least a 20-year planning 

horizon (23 CFR 450.322(a)).

incorporate anticipated data (e.g., new 

Census data) that was not actually 

available at the time the determination 

was originally scheduled to be made. 

The Clean Air Act and conformity 

rule do not require MPOs to delay their 

conformity analyses to incorporate 

anticipated data that is not yet available 

for conformity purposes under any 

circumstances. The conformity rule, as 

amended in today’s action, only 

requires conformity determinations to 

incorporate the most recent planning 

information available at the time the 

conformity analysis begins. Under this 

final rule, areas should use the 

interagency consultation process to 

determine the start of the analysis and 

the planning assumptions that are 

available and will be used in that 

analysis. 

Two commenters asked for 

clarification on the requirements of 

§ 93.122(a)(6) as they relate to planning 

information used in regional emissions 

analyses. Section 93.122(a)(6) requires 

regional emissions analyses to include 

the same ambient temperatures and 

other applicable factors that were used 

to develop the SIP and budgets. 

However, since § 93.110 requires the use 

of the most recent planning assumptions 

available in conformity, one commenter 

requested clarification on the specific 

‘‘factors’’ that § 93.122(a)(6) targets. One 

of these commenters also requested 

clarification on whether this provision 

of the rule should be applied to project 

level hot-spot analyses. This commenter 

argued that localized data can be more 

accurate than regional estimates in some 

cases, and therefore, should be used in 

hot-spot analyses. 

In contrast to those planning 

assumptions described in § 93.110 (e.g., 

population, employment, vehicle fleet 

composition), EPA intended 

§ 93.122(a)(6) to apply to certain 

planning factors that would not be 

expected to change significantly over 

time in a given geographical area. For 

example, factors referred to in 

§ 93.122(a)(6) would include 

environmental conditions such as 

ambient temperatures, humidity and 

altitude. Other factors subject to 

§ 93.122(a)(6) could also include the 

fraction of travel in a hot stabilized 

engine mode and annual mileage 

accumulation rates over the time frame 

of the transportation plan. Since factors 

such as environmental conditions and 

certain vehicle use characteristics that 

do not typically change in future years 

could significantly impact emissions, 

EPA generally believes that it is 

appropriate to require such factors to be 

consistent between conformity analyses 

and the SIP budgets.

Under certain circumstances, 

however, it may be appropriate to use 

alternative factors instead of certain SIP 

assumptions, if it is determined through 

the interagency consultation process 

that these factors should be modified as 

provided for in § 93.122(a)(6). For 

example, such modifications in these 

types of factors may be appropriate 

where additional or more geographically 

specific information is incorporated or a 

logically estimated trend in such factors 

beyond the period considered in the SIP 

is represented. EPA does not expect 

changes in the SIP’s factors to occur 

often, and they could occur only after 

interagency consultation. These factors, 

along with all other planning 

assumptions used in a conformity 

analysis, must be documented in the 

conformity determination that is 

released for public comment. 

Finally, § 93.123(c)(3) of the 

conformity rule requires hot-spot 

analysis assumptions to be consistent 

with those assumptions used in the 

regional emissions analysis for those 

inputs which are required for both 

analyses. Therefore, the requirements of 

§ 93.122(a)(6) also apply to hot-spot 

analyses; those factors covered by 

§ 93.122(a)(6) used in regional emissions 

analyses generally need to be the same 

as those in hot-spot analyses. However, 

EPA believes the existing § 93.122(a)(6) 

provides flexibility to use different 

information for certain environmental 

and transportation-related factors (e.g., 

temperature, cold-start vehicle travel) in 

hot-spot analyses, if it is determined 

through interagency consultation that 

there is a sound basis for using more 

localized geographic data. Areas should 

use the interagency consultation 

procedures established under § 93.105 

to determine whether more localized 

data is appropriate in hot-spot analyses. 

XXI. Horizon Years for Hot-Spot 

Analyses 

A. Description of the Final Rule 

Today’s final rule clarifies § 93.116 of 

the conformity rule so that project-level 

hot-spot analyses in metropolitan 

nonattainment and maintenance areas 

must consider the full time frame of an 

area’s transportation plan at the time the 

analysis is conducted.23 Regional 

emissions analyses in isolated rural 

areas also cover a 20-year timeframe, 

consistent with the general 

requirements in metropolitan and donut 

areas. Alternatively, hot-spot analyses 

for new projects in isolated rural 

nonattainment and maintenance areas, 

as defined in today’s rule, must consider 

the full time frame of the area’s regional 

emissions analysis since these areas are 

not required to develop a transportation 

plan and TIP under DOT’s statewide 

transportation planning regulations. All 

areas would use the interagency 

consultation process to select the 

specific methods and assumptions for 

conducting both quantitative and 

qualitative hot-spot analyses in 

accordance with § 93.123 of the 

conformity rule (§ 93.105(c)(1)(i)).

EPA does not anticipate that today’s 

clarification would significantly change 

how project-level analyses are being 

conducted in practice. To ensure that 

the requirement for hot-spot analysis is 

being satisfied, areas should examine 

the year(s) within the transportation 

plan or regional emissions analysis, as 

appropriate, during which peak 

emissions from the project are expected 

and a new violation or worsening of an 

existing violation would most likely 

occur due to the cumulative impacts of 

the project and background regional 

emissions in the project area. EPA 

believes that if areas demonstrate that 

no hot-spot impacts occur in the year(s) 

of highest expected emissions, then they 

will have shown that no adverse 

impacts will occur in any years within 

the time frame of the plan (or regional 

emissions analysis). 

Today’s final rule does not change the 

procedural requirements for hot-spot 

analyses outlined in § 93.123, nor the 

flexibility for areas to decide how best 

to meet these requirements through 

interagency consultation. We believe 

our clarification to § 93.116, in 

combination with the rule’s existing 

consultation and modeling 

requirements, is sufficient to 

demonstrate that a project will not cause 

or contribute to new local violations or 

increase the severity of existing 

violations during the period of time 

covered by the transportation plan. 

B. Rationale and Response to Comments 

On May 26, 1994, Environmental 

Defense, Natural Resource Defense 

Council and Sierra Club collectively 

submitted to EPA a Petition for 

Reconsideration of the November 1993 

conformity rule (58 FR 62188). In the 

preamble to an April 10, 2000 

conformity rule (65 FR 18913), we 

addressed four remaining issues raised 

in this petition, one of which was the 

issue regarding horizon years for hotspot analyses. Specifically, the 

petitioners requested that we alter the 

rule to ensure that areas examine the 20-

year time frame of the transportation 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40057

plan when conducting hot-spot 

analyses. The existing transportation 

conformity rule does not clearly specify 

a time frame to be considered for hotspot analyses. 

In the preamble to the 2000 

amendment, we acknowledged that hotspot analyses should address the full 

time frame of the transportation plan to 

ensure that new projects will not cause 

or worsen any new or existing hot-spot 

violations. In addition, we clarified that 

in some cases modeling the last year of 

the transportation plan or the year of 

project completion may not be sufficient 

to satisfy this requirement. EPA believes 

that the most effective means to meet 

this requirement would be to have the 

hot-spot analysis examine the year(s) 

during the time frame of the plan in 

which project emissions, in addition to 

background regional emissions in the 

project area, are expected to be the 

highest. Today’s final rule simply 

incorporates EPA’s existing 

interpretation of the rule’s hot-spot 

requirements into the conformity 

regulations. 

EPA received a number of comments 

on our proposed clarification of 

§ 93.116. One commenter believed that 

the transportation planning process 

should not be interrupted due to the 

inexact data on which the process is 

based. 

Today’s changes to § 93.116 do not 

impose any new requirements. Rather, 

this final rule clarifies that when a hotspot analysis is performed, the year or 

years that are analyzed must be the 

year(s) when project emissions, in 

addition to background regional 

emissions in the project area, are 

expected to be the highest and 

violations are most likely to occur. We 

believe that most areas are already 

successfully complying with this hotspot requirement, and consequently, 

changes to the existing planning process 

due to the final rule are not expected. 

The remaining commenters requested 

additional guidance on implementing 

the clarification to § 93.116. 

Specifically, one commenter indicated 

that their state currently requires CO 

hot-spot analyses for new projects in 

nonattainment and maintenance areas to 

examine air quality impacts of the 

project over a period extending up to 20 

years after the project opens. This 

commenter argued that this protocol for 

analyzing the year of project completion 

and a horizon year typically 20 years 

from project completion is very likely to 

capture the highest emissions expected 

from the project. However, the 

commenter was concerned that EPA’s 

clarification to § 93.116 may not allow 

continued use of this protocol. 

EPA does not believe that the hot-spot 

analysis procedures employed by this 

state are necessarily inconsistent with 

today’s clarification. In fact, this 

protocol could be more conservative 

since it requires the analysis of years 

beyond the 20 year time frame of an 

area’s transportation plan or regional 

emissions analysis. EPA does not 

believe that the clarification to § 93.116 

would cause this state to revise its 

requirements for hot-spot analyses in 

most cases. EPA should note, however, 

that all hot-spot analyses performed in 

any nonattainment or maintenance areas 

should consider whether the 

combination of project emissions and 

background emissions could result in a 

violation occurring prior to the final 

year of the analysis period. Further, 

since areas are required to prevent hotspot violations in years covered by the 

transportation plan, states should 

ensure that the use of the year of 

estimated highest projected emissions 

for a given project is sufficient to 

demonstrate that no violations would be 

expected during this time frame. 

Decisions regarding such analyses and 

year(s) chosen for hot-spot analyses 

should be determined through an area’s 

interagency consultation process. 

Another commenter requested 

clarification as to whether areas would 

be required to analyze more than one 

year if peak project emissions and peak 

background emissions are expected to 

occur in different years. EPA does not 

intend for the revised § 93.116 to require 

areas to analyze multiple years in all 

cases where peak project emissions and 

background emissions occur at different 

points in time. Instead, EPA intends for 

areas to analyze the year in which 

combined project and background 

emissions could most likely cause a 

violation or worsen an existing violation 

of the air quality standard. In some 

cases, however, a more conservative 

approach to meeting the conformity 

rule’s requirements for hot-spot analyses 

would be to analyze more than one year 

within the time frame of the 

transportation plan or regional 

emissions analysis depending upon the 

local circumstances regarding peak 

project and background emissions. An 

area’s interagency consultation process 

should be used to determine the 

appropriate year(s) for conducting hotspot analyses in this type of situation.

One commenter requested that EPA 

revise the clarification to § 93.116 to 

take into account the situation where a 

project would not remain in place over 

a 20-year time period. This situation 

could occur if a project is scheduled to 

be built and opened for use in stages. 

Specifically, the commenter requested 

that the clarification be revised to 

require that the hot-spot analysis cover 

the time frame of the plan ‘‘or time 

frame of the proposed project, 

whichever is shorter.’’

EPA does not believe that this 

commenter’s suggested clarification is 

necessary. In the case of a project that 

is being built and opened for use in 

stages, the conformity rule allows the 

area’s interagency consultation process 

to select the appropriate hot-spot 

analysis years. EPA believes that in 

these cases the local consultation 

process provides the best forum for 

deciding how to model such projects 

appropriately. Furthermore, the 

clarification to § 93.116 allows areas to 

select an appropriate analysis year(s) to 

demonstrate that the project conforms 

over the entire time frame of an area’s 

transportation plan or regional 

emissions analysis. It is likely that when 

a project is opened in stages, more than 

one analysis year may be necessary to 

satisfy the hot-spot requirements, as 

various years could produce 

significantly different emissions. For 

example, if a project were being opened 

in two stages and the entire two-stage 

project was being approved, the 

interagency consultation process may 

result in a decision to analyze two years. 

In this case, the first analysis year 

would be chosen to examine the 

impacts of the first stage of the project, 

such as a year between the opening of 

the first stage and the opening of the 

second stage of the project. The second 

analysis year would be chosen to 

examine the impacts of the complete 

project, such as a year between the 

opening of the second stage and the 

final year of the area’s transportation 

plan or regional emissions analysis. 

Finally, EPA does not believe that the 

final rule is problematic with respect to 

projects that do not remain in effect for 

the entire time frame of the 20-year 

transportation plan. For example, if a 

project is only scheduled to be 

implemented for the first 10 years of the 

transportation plan, there would be no 

projected emissions from that project to 

consider for hot-spot analysis in the 

latter 10 years of the plan. 

Another commenter encouraged EPA 

and DOT to issue hot-spot guidance that 

maintains and enforces significance 

thresholds and consider more stringent 

mitigation measures for exceedances of 

the thresholds. EPA does not believe 

that the requested guidance is needed or 

required to implement the Clean Air Act 

or conformity rule’s requirements for 

ensuring that localized emissions from a 

new project do not cause or contribute 

to violations of the air quality standards. 

EPA believes that section 176(c)(3)(B)(ii) 

40058 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

of the Clean Air Act and § 93.116 of the 

conformity rule establish sufficient 

requirements for addressing localized 

air quality problems in CO and PM10

nonattainment and maintenance areas. 

Further, EPA does not believe that 

exceedances of significant threshold 

levels would necessarily contribute to 

increased violations of a given air 

quality standard. 

Finally, one commenter asked when 

EPA intends to issue guidance on 

quantitative PM10 hot-spot analyses, as 

referred to in § 93.123(b)(4) of the 

conformity rule. As part of the 

November 5, 2003 proposal (68 FR 

62690), EPA requested comment on the 

experience areas have had in applying 

the conformity rule’s PM10 hot-spot 

analysis requirements and on the need 

to maintain or amend these 

requirements. As noted in Section XIII. 

of today’s action, EPA intends to decide 

on the PM10 hot-spot analysis 

requirement, including needs for 

quantitative analysis guidance, based on 

our review of comments from the 

November 2003 proposal and a future 

supplemental proposal. 

XXII. Relying on a Previous Regional 

Emissions Analysis 

A. Description of Final Rule 

EPA is finalizing three revisions to 

§ 93.122(g), which describes when an 

area can rely on a previous regional 

emissions analysis for a new conformity 

determination. EPA notes that the 

provisions for relying on a previous 

analysis were located in § 93.122(e) of 

the former conformity rule, but are 

being moved to § 93.122(g) due to 

reorganization of this section. First, EPA 

is revising § 93.122(g) so that MPOs can 

rely on a previous regional emissions 

analysis for minor transportation plan 

revisions. Prior to today’s final rule, 

§ 93.122(g) (§ 93.122(e) of the previous 

conformity rule) allowed areas to rely 

on a previous emissions analysis only 

for conformity determinations made for 

minor TIP updates or amendments. To 

meet § 93.122(g) requirements, minor 

revisions to the transportation plan may 

include no additions or deletions of 

regionally significant projects, no 

significant changes in the design 

concept and scope of existing regionally 

significant projects, and no changes to 

the time frame of the transportation 

plan. Further, minor plan revisions 

under § 93.122(g) would not include 

revisions that delay or accelerate the 

completion of regionally significant 

projects across conformity analysis 

years. 

EPA’s second revision adds 

§ 93.122(g)(3) to clarify that a 

conformity determination that relies on 

a previous analysis does not satisfy the 

three-year frequency requirement for 

plans and TIPs. The conformity rule 

continues to require a new regional 

emissions analysis that incorporates the 

latest planning assumptions and 

emissions models at least every three 

years. In response to comments EPA 

received on this proposed rule change, 

EPA is also clarifying the three-year 

regional emissions analysis requirement 

in § 93.104(b) and (c) of the rule. 

EPA’s third revision adds 

§ 93.122(g)(1)(iv) and amends 

§ 93.122(g)(2) to clarify that conformity 

determinations that rely on a previous 

regional emissions analysis must be 

based on all adequate and approved SIP 

budgets that apply at the time that DOT 

makes its conformity determination. 

Like all conformity determinations, a 

determination that relies on a previous 

emissions analysis must satisfy the 

emissions test requirements of § 93.118 

(or of § 93.119, if no applicable budgets 

exist), and must do so over the time 

frame of the transportation plan. 

Therefore, EPA believes that pursuant to 

§ 93.118(a) of the current rule, any 

conformity determination that relies on 

a previous emissions analysis must 

show consistency with all applicable 

adequate or approved budgets that are 

available for conformity purposes at the 

time the determination is made, 

including those budgets that have 

become applicable since the previous 

conformity determination. In other 

words, in cases where new adequate or 

approved budgets become available after 

the most recent conformity 

determination, the previous regional 

emissions analysis could be used for a 

subsequent determination if the 

emissions estimates from that analysis 

are at or below the emissions levels 

established by the new budgets for 

relevant years and all other § 93.122(g) 

requirements are met. In this case, the 

conformity determination that includes 

the new budgets would also satisfy any 

applicable 18-month conformity 

requirement, pursuant to § 93.104(e) 

that is triggered by EPA’s adequacy 

finding and/or approval action of the 

new SIP budgets. 

This final rule applies to conformity 

determinations for plans, TIPs, and 

projects not from a conforming plan and 

TIP. EPA expects that most conformity 

implementers already consider new 

budgets when they rely on a previous 

emissions analysis. Today’s final rule 

simply clarifies existing requirements 

and ensures that the conformity 

regulation continues to be correctly 

implemented in the future. 

EPA also notes that we are not 

altering the existing § 93.122(g)(2)(i) and 

(ii) provisions in today’s final rule, as 

the June 30, 2003 proposed regulatory 

text may have been confusing with 

regard to the specific changes that were 

proposed. In the preamble to the June 

30, 2003 proposed regulatory text, we 

stated that we were amending 

§ 93.122(g)(2) to clarify that a 

conformity determination that relies on 

a previous emissions analysis must be 

based on all adequate and approved 

budgets that apply when the 

determination is made. However, we 

only intended to amend the 

introductory text for § 93.122(g)(2) and 

did not intend to delete the existing 

subparagraphs § 93.122(g)(2)(i) and (ii) 

for this provision, as may have appeared 

from the printed regulatory text. 

Therefore, we are now clarifying that 

subparagraphs § 93.122(g)(2)(i) and (ii) 

still apply. That is, a project that is not 

from a conforming plan and TIP may be 

demonstrated to conform without a new 

regional emissions analysis if the project 

is either not regionally significant, or is 

included in the currently conforming 

transportation plan (even if it is not 

included in the currently conforming 

TIP) and its design concept and scope 

have not significantly changed and are 

sufficient for determining regional 

emissions. EPA believes that a 

reproposal is not necessary to make this 

correction in today’s final rule, as this 

clarification is consistent with EPA’s 

original intentions and stakeholders’

understanding of the proposed revision 

to the § 93.122(g)(2) provision. 

B. Rationale and Response to Comments 

EPA believes that relying on a 

previous emissions analysis for minor 

transportation plan changes is 

appropriate, since such changes do not 

impact regional air quality and usually 

occur in tandem with minor TIP 

updates and amendments. The purpose 

of § 93.122(g) is to allow areas to use a 

previous emissions analysis when no 

significant changes to the transportation 

system are being made. Through 

implementing § 93.122(g) over the years 

(as § 93.122(e)), EPA has concluded that 

because plan and TIP updates often 

occur together, the purpose of this 

provision has been frustrated due to the 

rule’s past applicability only to TIPs, 

but not plans.

Most commenters supported EPA’s 

proposal to allow areas to rely on a 

previous emissions analysis for minor 

transportation plan revisions. As stated 

in the June 30, 2003 proposal, the 

purpose of this final rule is to require a 

new regional emissions analysis only for 

transportation actions that involve 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40059

significant air quality impacts and at 

least every three years. One commenter, 

however, requested clarification on 

whether changes or additions to a plan 

and TIP would be determined 

‘‘significant’’ through the interagency 

consultation process. 

EPA articulates its intentions for 

when transportation planners can rely 

on a previous emissions analysis in the 

existing conformity rule and the 

preamble to the November 24, 1993 

conformity rule. Specifically, in the 

1993 final rule, we stated that a new 

regional analysis would not be required 

‘‘if the only changes to the TIP involve 

either projects which are not regionally 

significant and which were not or could 

not be modeled in a regional emissions 

analysis, or changes to project design 

concept and scope which are not 

significant * * * ’’ (58 FR 62202). 

Today’s final rule clarifies that a 

previous analysis can only be used 

under similar circumstances for the 

plan, and when the time frame of the 

transportation plan has not changed. 

Under the consultation provisions of the 

conformity rule, the interagency 

consultation process should be used to 

determine which projects are 

‘‘regionally significant’’ for the purposes 

of regional emissions analyses, and 

which projects have a significant change 

in design concept and scope 

(§ 93.105(c)(2)(ii)). Therefore, EPA 

believes that the conformity rule clearly 

specifies that an area’s interagency 

consultation process should be used for 

determining whether any changes or 

additions to a plan and/or TIP are not 

‘‘significant’’ for the purposes of relying 

on a previous emissions analysis in 

accordance with § 93.122(g). 

Another commenter requested EPA to 

identify comprehensively the 

circumstances when reliance on a 

previous regional emissions analysis 

would not be appropriate. Specifically, 

this commenter asked EPA to clarify 

that an area cannot rely on a previous 

analysis if new or revised planning 

assumptions and/or emissions models 

become available after the previous 

conformity determination. The 

commenter also requested that EPA 

clarify that an area cannot rely on a 

previous emissions analysis when new 

SIP budgets have become available for 

conformity purposes since the last 

determination. The commenter argued 

that since the Clean Air Act requires 

conformity determinations to be based 

on the most recent planning 

assumptions and emissions estimates, 

the conformity rule should require a 

new regional emissions analysis for all 

minor plan and TIP changes if new 

planning information becomes available 

after the previous analysis and 

conformity determination are made. 

In general, EPA agrees that Clean Air 

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

conformity determinations to be based 

on the most recent estimates of 

emissions. However, we also believe 

that Clean Air Act section 

176(c)(4)(B)(ii) gives EPA discretion in 

establishing the requirements for a new 

regional emissions analysis when a 

minor change to a transportation plan 

and/or TIP is made. Specifically, section 

176(c)(4)(B)(ii) requires EPA to 

promulgate conformity rules that 

‘‘address the appropriate frequency for 

making conformity determinations, but 

in no case shall such determinations for 

transportation plans and programs be 

less frequent than every three years, 

* * *.’’ To satisfy this statutory 

requirement, EPA promulgated rules in 

1993 (58 FR 62188) that require a new 

regional emissions analysis and 

conformity determination to be 

conducted at a minimum of every three 

years and when a significant change to 

the TIP is made between the three-year 

conformity frequency requirement. 

EPA does not believe that the Clean 

Air Act requires a new regional analysis 

to be triggered between three-year 

conformity updates in the case when 

minor project changes are made to the 

plan or TIP that would not affect 

regional emissions. Since the original 

November 24, 1993 conformity rule, 

EPA has held that only the three-year 

conformity frequency requirement and 

transportation actions that involve 

significant air quality impacts should 

drive the necessity for a new regional 

emissions analysis that incorporates the 

most recent planning information. EPA 

does not believe, however, that a new 

emissions analysis should be required 

for the sole purposes of incorporating 

new planning information or models in 

between the three-year minimum 

conformity requirement. The conformity 

rule has never required a new emissions 

analysis in this case and EPA is not 

reopening this aspect of § 93.122(g) in 

this rulemaking. 

As we have stated elsewhere in this 

final rule, conducting conformity 

determinations and regional emissions 

analyses to satisfy the conformity rule 

requires a significant amount of state 

and local resources. In the January 11, 

1993 conformity proposal, we stated 

that ‘‘conformity determinations should 

be made frequently enough to ensure 

that the conformity process is 

meaningful. At the same time, EPA 

believes it is important to limit the 

number of triggers for conformity 

determinations in order to preserve the 

stability of the transportation planning 

process’’ (58 FR 3775). EPA believes 

that requiring a new regional emissions 

analysis to incorporate new data and 

models for minor changes to 

transportation systems would 

essentially result in another conformity 

trigger whenever planning assumptions 

or models are updated. EPA believes 

such a trigger would be overly 

burdensome and in contrast with our 

stated goals of implementing a 

meaningful conformity process that 

limits disruption to the transportation 

planning process. 

In the 1993 conformity rule, EPA 

concluded that areas should be granted 

flexibility for meeting the conformity 

requirements for minor interim TIP 

updates and amendments under 

§ 93.122(g), even if new planning 

information becomes available after the 

previous analysis and conformity 

determination are made. See the January 

11, 1993 proposal to the November 24, 

1993 rule (58 FR 3778) for further 

background. EPA continues to believe 

such flexibility is appropriate and 

consistent with statutory requirements, 

and is not re-proposing nor re-opening 

the existing § 93.122(g) requirement for 

minor TIP changes in this rulemaking. 

This final rule simply extends 

§ 93.122(g) requirements to minor plan 

revisions for consistency purposes. EPA 

believes this rule change will not have 

a significant impact on air quality, as 

the rule’s existing frequency 

requirements will ultimately ensure that 

timely emissions analyses are 

conducted so that air quality is not 

worsened over the time frame of the 

long range transportation plan. 

In addition, EPA has always believed 

that requiring a new regional emissions 

analysis simply because new SIP 

budgets have become available since the 

last conformity determination is also 

unnecessary. In our 1993 proposed 

conformity rule, we specifically stated, 

‘‘If the existing emissions analysis for 

the current transportation plan 

demonstrates that the current plan is 

consistent with the new implementation 

plan budget, a conformity finding can be 

made for the current plan. The 

transportation plan would not need to 

be revised and a new regional emissions 

analysis would not be necessary’’ (58 FR 

3775). Today’s rule ensures that any 

adequate or approved budgets that have 

become available since the previous 

conformity determination are 

incorporated in subsequent 

determinations. However, EPA believes 

that it is unnecessary to require a new 

regional emissions analysis when new 

budgets are incorporated, if a minor 

revision to the plan/TIP meets the 

current requirements of § 93.122(g) and 

40060 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

conforms to the new budgets for 

relevant years. Again, EPA has not 

reopened this previous conclusion in 

today’s rulemaking.

A few commenters also disagreed 

with the new provision, § 93.122(g)(3), 

that clarifies that a conformity 

determination that relies on a previous 

regional emissions analysis does not 

satisfy the three-year frequency 

requirement for plans and TIPs. These 

commenters believe that conformity 

determinations that rely on a previous 

analysis should not be treated 

differently from any other 

determination. One of these commenters 

argued that since the frequency 

requirements in § 93.104 do not 

specifically include a requirement to 

perform a new regional emissions 

analysis, a conformity determination 

that relies on a previous analysis meets 

all the applicable conformity criteria 

and should satisfy the three-year 

conformity frequency requirement. The 

commenter also stated that requiring a 

conformity determination with a new 

analysis to meet the three-year 

conformity requirement shortly after 

making a conformity determination that 

relies on § 93.122(g), would place an 

inappropriate burden on states and 

MPOs with no significant air quality 

benefit. 

As previously stated, EPA has always 

interpreted the Clean Air Act as 

requiring a conformity determination 

with a new regional emissions analysis 

that incorporates the latest planning 

information and models at a minimum 

of every three years. In our 1993 

conformity proposal, we specifically 

stated that an ‘‘emissions analysis must 

occur at least every three years’’ (58 FR 

3775), and we believe this requirement 

is necessary to fulfill the Clean Air Act’s 

three-year conformity frequency 

requirement. Further, EPA has 

concluded that a new emissions 

analysis every three years will provide 

significant air quality benefits that 

justify the additional effort. As a result 

of this interpretation, we believe that 

Clean Air Act section 176(c)(4)(B)(ii) 

precludes a conformity determination 

that is based on a previous regional 

emissions analysis from satisfying the 

three-year requirement. EPA believes 

that the existing rule’s requirements for 

a new regional emissions analysis that 

incorporates the latest planning 

information and models every three 

years, and for plan/TIP updates and 

amendments that include significant 

changes, are important for ensuring that 

transportation activities are consistent 

with an area’s clean air goals. Thus, EPA 

cannot agree with these commenters’

request. 

However, EPA agrees that the 

requirement for a new regional 

emissions analysis every three years 

could be clarified. Therefore, in 

response to this comment EPA is 

clarifying in § 93.104(b)(3) and (c)(3) of 

today’s action that MPOs and DOT must 

make a conformity determination that 

includes a new regional emissions 

analysis for transportation plans and 

TIPs no less frequently than every three 

years. This minor revision to § 93.104 

will not change existing requirements or 

implementation practices, as EPA 

expects that all metropolitan 

nonattainment and maintenance areas 

already conduct a new regional 

emissions analysis at a minimum of 

every three years. This rule revision 

simply clarifies existing requirements 

and ensures that the conformity 

regulation continues to be correctly 

implemented in the future. 

Finally, one commenter requested 

that EPA expand § 93.122(g) so that a 

minimal number of new projects and/or 

project revisions could be added to a 

plan or TIP without having to do a new 

conformity determination at all. Such an 

approach, as suggested by this 

commenter, could be considered as a 

‘‘de minimis test’’ for triggering a new 

determination. 

EPA does not believe that the Clean 

Air Act permits minor plan and TIP 

changes to occur without a conformity 

determination. Clean Air Act section 

176(c) states that no approval or funding 

of any transportation plan, TIP or 

project can be granted unless that plan, 

TIP or project conforms. Therefore, the 

statute does not support the addition of 

a minimal number of new non-exempt 

projects and/or project revisions to the 

transportation plan or TIP without a 

conformity determination. In addition, 

the existing conformity rule already 

includes a list of exempt projects that 

never need conformity determinations 

due to their minimal air quality impact 

(§ 93.126). EPA believes that only plan 

and TIP updates involving these exempt 

projects should be allowed to proceed 

without a conformity determination. 

Furthermore, § 93.122(g) of the 

conformity rule already provides a 

streamlined process for meeting the 

conformity requirement for minor plan 

and TIP changes in between the threeyear conformity requirement by 

eliminating the need for a new regional 

emissions analysis. EPA believes this 

provision provides appropriate 

flexibility in meeting the statute’s 

requirements, as well as a necessary 

‘‘check’’ to ensure through the 

interagency consultation and public 

processes that such plan/TIP changes 

are indeed insignificant with regard to 

air quality. In addition, such 

determinations ensure that other 

requirements of the Clean Air Act and 

conformity rule (e.g., timely 

implementation of TCMs) are satisfied. 

XXIII. Miscellaneous Revisions 

A. Definitions 

In today’s rulemaking, EPA is 

clarifying the conformity rule’s 

definitions for ‘‘control strategy 

implementation plan revision,’’

‘‘milestone,’’ ‘‘donut areas,’’ and 

‘‘isolated rural nonattainment and 

maintenance areas’’ in § 93.101. Today’s 

clarifications to these definitions should 

not impose any new requirements on 

nonattainment and maintenance areas; 

these rule revisions simply clarify EPA’s 

original intent and current 

implementation of the existing 

conformity rule. 

Control Strategy Implementation Plan 

Revision 

The final rule clarifies that any 

implementation plan revisions that are 

submitted to fulfill any of the following 

Clean Air Act requirements are 

considered control strategy SIPs for 

conformity purposes: section 172(c) and 

187(g) or 189(d), in addition to the 

currently listed sections 182(b)(1), 

182(c)(2)(A), and 182(c)(2)(B) for ozone 

areas; section 187(a)(7) for CO areas; 

sections 189(a)(1)(B) and 189(b)(1)(A) 

for PM10 areas; and sections 192(a) and 

192(b) for NO2 areas. We are also 

clarifying that any SIP that is 

established to demonstrate reasonable 

further progress and/or attainment 

should be considered a control strategy 

SIP. 

Several commenters supported EPA’s 

clarification to the definition since it 

did not change the conformity 

frequency requirements in § 93.104(e). 

Specifically, these commenters 

understood that the definition change 

would not alter how initial submissions 

of control strategy SIPs or approvals of 

control strategy SIPs would trigger the 

18-month frequency requirement for a 

new conformity determination. EPA 

agrees with these comments. 

Another commenter believed that 

maintenance plans required under 

section 175A also constitute control 

strategy SIPs and suggested that this 

type of SIP be added to the definition. 

EPA disagrees with this comment. 

Control strategy implementation plans 

are plans developed by nonattainment 

areas for reasonable further progress or 

attainment purposes, as indicated by the 

above referenced Clean Air Act sections. 

In contrast, maintenance plans are 

developed by areas once they have 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40061

attained the applicable standard and, as 

such, would not fit this definition. 

Maintenance plans are already defined 

in § 93.101 of the conformity rule, and 

§ 93.118 distinguishes between how 

control strategy SIPs and maintenance 

plans are applied when regional 

emissions analyses are completed with 

SIPs. For these reasons, EPA will not 

expand the definition of control strategy 

SIP to include maintenance plans. 

Milestone

Similarly, EPA is expanding the 

current definition of milestone to more 

adequately reflect EPA’s original intent 

and implementation of this term. The 

final rule expands this definition so that 

it includes any year for which a motor 

vehicle emissions budget has been 

established to satisfy Clean Air Act 

requirements for demonstrating 

reasonable further progress. This 

definition includes all years in the 

applicable SIP for which emissions 

targets showing progress towards 

attainment are established in any 

nonattainment area. 

Several commenters supported EPA’s 

clarification to the milestone definition 

and further urged EPA to encourage 

states to eliminate old motor vehicle 

emission budgets when submitting new 

SIPs or SIP revisions with new budgets. 

Commenters believed that eliminating 

old budgets would alleviate some 

confusion over which budgets and 

which milestones apply when more 

than one SIP is in place for the same 

pollutant. 

EPA does not agree with this 

comment. SIPs are legal documents 

which establish air quality control 

strategies and measures required for 

attaining and maintaining the standard. 

SIPs are developed for more than one 

Clean Air Act purpose, and each SIP is 

developed with different planning 

assumptions and could, thus, generate a 

different budget as well as potentially 

address different years. These SIPs and 

their associated budgets each play a role 

in an area’s attainment strategy and 

cannot be eliminated simply for 

convenience in the conformity process. 

However, there may be some cases 

where budgets were developed for a 

Clean Air Act purpose for a year that is 

no longer applicable for future 

conformity determinations. Previously 

established SIPs can only be revised 

after satisfying applicable Clean Air Act 

requirements through the SIP process. 

EPA believes that there are already 

mechanisms for clarifying which SIP 

budgets apply for a given conformity 

determination. Section 93.118(b) of the 

conformity rule clarifies which budgets 

are to be used and under what 

conditions. In addition, areas should 

use the interagency consultation process 

to ensure that § 93.118 is being met and 

to determine which SIP budgets are 

applicable for conformity 

determinations where multiple SIPs are 

established. For these reasons, EPA 

believes that no further clarifications or 

changes to the regulations are necessary. 

Donut Areas and Isolated Rural 

Nonattainment and Maintenance Areas 

In this final rule, ‘‘donut areas’’ are 

defined as geographic areas outside a 

metropolitan planning area boundary as 

designated under 23 U.S.C. 134 and 49 

U.S.C. 5303, but inside the boundary of 

a designated nonattainment/

maintenance area that contains any part 

of a metropolitan area(s). ‘‘Isolated rural 

nonattainment and maintenance areas’’

are defined as any nonattainment or 

maintenance area that does not contain 

or is not part of any metropolitan 

planning area as designated under 23 

U.S.C. 134 and 49 U.S.C. 5303. Isolated 

rural areas do not have metropolitan 

transportation plans or TIPs required 

under 23 U.S.C. 134 and 49 U.S.C. 5303 

and 5304 and do not have projects that 

are part of the emissions analysis of any 

MPO’s metropolitan transportation plan 

or TIP. Projects in such areas are instead 

included in statewide transportation 

improvement programs. EPA notes, 

however, that some isolated rural areas 

may also include projects in the 

statewide transportation plan. Whatever 

the case, projects in isolated rural areas 

that are included in both the statewide 

plan and statewide TIP would be 

included in regional emissions analyses 

for the area consistent with 

§ 93.109(l)(2)(i) of the final rule 

(formerly § 93.109(g)(2)(i)). Emissions 

analyses for these areas would also 

include any existing or planned 

regionally significant non-federal 

projects in the nonattainment or 

maintenance area. 

EPA is finalizing these definitions to 

clarify how areas that are designated 

nonattainment or maintenance, but that 

are not within the planning boundary of 

any MPO’s jurisdiction, should be 

considered for conformity purposes. In 

general, commenters agreed with these 

definitions. Two commenters, however, 

raised concerns about the proposed 

definition of ‘‘donut areas.’’ These 

commenters believed that the phrase 

‘‘that is dominated by a metropolitan 

area(s)’’ that was included in the June 

30, 2003 proposal to this final rule was 

confusing and ambiguous. For example, 

one commenter stated that this phrase 

introduces uncertainty about how rural 

areas that are in a separate 

nonattainment area, but adjacent to an 

MPO in a different nonattainment or 

maintenance area for the same 

pollutant, would be treated. The 

commenter claimed that the phrase ‘‘is 

dominated by’’ raises an unnecessary 

question about the status of such rural 

areas, and to address this issue, EPA 

should revise its definition to more 

closely follow standard practice. 

After consideration of these 

comments, EPA agrees that the 

proposed definition for donut areas did 

not accurately reflect our intentions for 

how these areas should be defined. 

Therefore, in this final rule we have 

replaced the phrase ‘‘is dominated by’’

with the phrase ‘‘contains any part of’’

to clarify our intentions. Historically, 

EPA has always regarded donut areas as 

rural areas that are located in a 

nonattainment or maintenance area that 

also contains all or part of a 

metropolitan area. In contrast, isolated 

rural areas are located in nonattainment 

or maintenance areas that do not 

contain any part of a metropolitan area. 

We believe this simple change to the 

final rule definition better reflects how 

donut areas have been defined, in 

practice, and will ensure that rural areas 

are appropriately classified under the 

conformity regulations. EPA believes 

that a reproposal is not necessary to 

incorporate this minor change in today’s 

final rule, as this clarification is 

consistent with EPA’s original 

intentions and stakeholder’s 

understanding of the proposed 

regulatory definitions. 

B. Areas With Insignificant Motor 

Vehicle Emissions 

EPA is finalizing two rule revisions to 

incorporate our existing insignificance 

policy in the conformity rule. First, we 

are adding a new provision, § 93.109(k), 

which applies to nonattainment and 

maintenance areas where EPA finds that 

the SIP’s motor vehicle emissions for a 

pollutant or precursor for a given 

standard are an insignificant contributor 

to an area’s regional air quality problem. 

This provision waives the regional 

emissions analysis requirements in 

§§ 93.118 and 93.119 for an insignificant 

pollutant or precursor in these areas 

upon the effective date of EPA’s 

adequacy finding or approval of such a 

SIP. In addition, this provision waives 

the hot-spot requirements in §§ 93.116 

and 93.123 in CO and PM10 areas if EPA 

also determines that the SIP 

demonstrates that potential localized 

hot-spot emissions are not a concern. 

Section 93.109(k) also establishes the 

minimum criteria that are necessary to 

demonstrate that motor vehicle 

emissions are insignificant, as described 

below. 

40062 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

Second, EPA is adding a new 

§ 93.121(c) to the rule to address 

regionally significant non-federal 

projects in areas where EPA has found 

a pollutant or precursor to be regionally 

insignificant. The new § 93.121(c) 

allows regionally significant non-federal 

projects to be approved without being 

included in a regional emissions 

analysis for a pollutant or precursor that 

EPA has found insignificant, since such 

analyses will no longer be conducted. 

Sections 93.121(a) and (b) require that 

the emissions impacts of regionally 

significant non-federal projects be 

considered prior to project approval. 

However, a regional analysis is not 

required for a pollutant or precursor for 

a given standard that EPA has found 

insignificant. Consistent with the new 

§ 93.109(k) for federal projects, the new 

§ 93.121(c) provision allows a nonfederal project to be approved, without 

a regional emissions analysis otherwise 

required per §§ 93.118 and/or 93.119, 

for a regionally insignificant pollutant 

or precursor. 

Under this final rule and the existing 

policy, areas with insignificant regional 

motor vehicle emissions for a pollutant 

or precursor are still required to make 

a conformity determination that satisfies 

other relevant requirements including: 

timely implementation of TCMs in an 

approved SIP, interagency and public 

consultation, hot-spot requirements 

including the use of latest planning 

assumptions and emissions models in 

CO and PM10 areas (if EPA has not made 

a finding that such emissions are also 

not a concern), and compliance with SIP 

control measures in PM10 and PM2.5

areas. Areas are also required to satisfy 

the regional emissions analysis 

requirements in §§ 93.118 and/or 93.119 

for pollutants or precursors for which 

EPA has not made a finding of 

insignificance. For non-federal 

regionally significant projects, the 

requirements in either § 93.121(a) or (b) 

apply for any other pollutants or 

precursors for which the area is 

designated nonattainment or 

maintenance that are considered 

significant (i.e., those pollutants or 

precursors that EPA has not determined 

to be insignificant at the regional level).

Rationale and Response to Comments 

As described in the preamble to the 

November 5, 2003 proposal, EPA 

developed the insignificance policy to 

provide flexibility for areas where motor 

vehicle emissions had little to no impact 

on an area’s air quality problem. EPA 

believes that requiring these areas to 

perform a regional emissions analysis is 

not necessary to meet Clean Air Act 

section 176(c) requirements that 

transportation actions not worsen air 

quality, since the overall contribution of 

motor vehicle emissions in these areas 

is small and thus any significant change 

in such emissions over time would be 

unlikely. To date, approximately a 

dozen areas have taken advantage of the 

insignificance policy, consisting mainly 

of PM10 areas with air quality problems 

caused primarily by stationary or area 

sources. This current universe of areas 

has not changed significantly since 

1993, and we do not anticipate the 

number of areas that could demonstrate 

insignificance of regional motor vehicle 

emissions to substantially increase in 

the future. Therefore, the final rule 

waives the regional emissions analysis 

requirement in these areas without 

compromising air quality, since state 

and local resources could then be 

directed toward reducing emissions 

from those sources that do contribute 

the most to an area’s air quality 

problem. 

All who commented on insignificance 

supported incorporating our 

insignificance policy into the 

conformity rule. Commenters thought 

including the policy would help a 

limited number of areas, and one 

commenter specifically stated it would 

reduce burden without endangering air 

quality. One commenter requested that 

requirements for federal and non-federal 

projects be consistent in areas where 

EPA has found a pollutant or precursor 

to be insignificant. These requirements 

are in fact consistent under the final 

rule as explained above, because no 

regional emissions analysis is required 

for either type of project to be approved 

in these areas. 

A few commenters suggested that the 

insignificance provisions should be 

expanded to apply with respect to the 

PM2.5 standard. We want to clarify that 

they in fact do apply for the PM2.5

standard. These insignificance 

provisions could apply to any standard 

for which conformity is determined, 

including PM2.5. 

Furthermore, the new §§ 93.109(k) 

and 93.121(c) are consistent with the 

provisions of the rule in §§ 93.102 and 

93.119 that address insignificance of 

pollutants before and after a SIP is 

submitted. See Section IX. for final rule 

amendments that address when reentrained road dust emissions are 

considered significant for PM2.5

analyses. 

A few commenters suggested EPA 

include additional elements in the 

conformity rule. One commenter, for 

example, asked that EPA provide a 

definition of insignificance, and 

guidance on how such a determination 

would be made. However, EPA believes 

that the final rule is sufficient to 

implement the insignificance provisions 

in that it incorporates our existing 

guidance from the proposal to the 1997 

rule (July 9, 1996, 61 FR 36118) into 

§ 93.109(k). Rather than a ‘‘one-size-fitsall’’ definition, EPA’s existing policy as 

articulated in this and previous 

conformity rulemakings and the new 

§ 93.109(k) gives EPA and the states the 

ability to examine whether motor 

vehicles are a significant contributor to 

regional and hot-spot air quality on a 

case-by-case basis, while still providing 

a framework for EPA’s action. Another 

commenter suggested that the criteria 

for determining insignificance be 

expanded to include an area’s impact on 

downwind areas. EPA does not believe 

a rule change is necessary to 

accommodate the concern of this 

commenter and thus is not changing the 

final rule in response to this comment. 

Again, EPA will look at SIPs that claim 

insignificance on a case-by-case basis 

consistent with the guidance provided 

in § 93.109(k), including their effects on 

downwind areas. 

A third commenter expressed concern 

that motor vehicle emissions could go 

from insignificant to significant simply 

because a reduction of emissions from 

other source sectors results in motor 

vehicle emissions comprising a greater 

percentage of the area’s total inventory. 

EPA recognizes that this may occur. 

Initial inventories and strategies to 

attain or maintain air quality standards 

may change over time. Any changes to 

the significance of motor vehicle 

emissions must be discussed through 

interagency consultation in SIP 

development. 

This example also illustrates the 

reason EPA believes it is important to 

have flexibility in implementing this 

provision. Although the commenter 

specifically mentions 10% as the 

threshold for finding motor vehicle 

emissions insignificant, EPA clarifies 

that this figure is a general guideline 

only. Depending on the circumstances, 

we may find that motor vehicle 

emissions that make up less than 10% 

of an area’s total inventory are still 

significant. Conversely, we may also 

find that motor vehicle emissions in 

excess of 10% are still insignificant, 

under certain circumstances relating to 

the overall composition of the air 

quality situation. In general, the 

percentage of motor vehicle emissions 

in the area’s total inventory is an 

important criterion for determining 

whether motor vehicles are a significant 

or insignificant contributor to an area’s 

air quality problem, yet there are other 

criteria that EPA will examine when 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40063

making this finding, as described in the 

regulatory text for § 93.109(k). 

Another comment we received on this 

section was with respect to hot-spot 

analyses. The commenter suggested that 

if motor vehicles are found to be an 

insignificant contributor to regional 

PM10, then hot-spot analyses should no 

longer be required in all cases. EPA 

disagrees with this comment, because a 

project could still cause a PM10 hot-spot 

even when motor vehicle emissions of 

PM10 are not regionally significant. For 

example, the projects listed in § 93.127 

of the conformity rule are exempt from 

regional emissions analysis because it is 

recognized that these projects are 

unlikely to affect emissions on a 

regional scale, but the local effects of 

these projects with respect to CO or 

PM10 concentrations must still be 

considered to determine if a hot-spot 

analysis is required. 

Finally, we received several 

comments that insignificance should be 

addressed during the SIP development 

process with full opportunity for 

interagency consultation. EPA agrees 

with these commenters: as we said in 

the preamble to the November 5, 2003 

proposal, it is appropriate that the claim 

of insignificance be reviewed via the 

interagency consultation process during 

the development of the SIP. If it is 

determined that regional and/or hotspot motor vehicle emissions are 

insignificant, such a finding should be 

clearly stated and well supported in a 

SIP that is subsequently submitted to 

EPA for adequacy review and/or 

approval. We anticipate that interagency 

consultation regarding insignificance 

will occur as a result of the requirement 

for consultation on the development of 

the SIP in § 93.105(b) of the conformity 

rule. Further, the public will have 

appropriate opportunities to comment 

on proposed findings of insignificance 

in the process of both state adoption, 

EPA SIP approval and adequacy finding 

of submitted SIPs. 

C. Limited Maintenance Plans 

EPA is finalizing three rule revisions 

that would make the conformity rule 

consistent with EPA’s existing limited 

maintenance plan policies for the 1-

hour ozone, CO, and PM10 standards. 

Today’s rule revisions also allow for any 

future limited maintenance plan 

policies for other standards to be 

considered in the conformity process. In 

general, a limited maintenance plan 

policy allows a nonattainment area with 

air quality that is significantly below a 

standard to request redesignation 

through a more streamlined 

maintenance plan. EPA received no 

comments on its proposed conformity 

revisions for limited maintenance plan 

areas. 

First, EPA is adding a basic definition 

for ‘‘limited maintenance plan’’ to 

§ 93.101 of the conformity rule. Second, 

we are including a new paragraph 

§ 93.109(j) that states that a regional 

emissions analysis is not required to 

satisfy §§ 93.118 and/or 93.119 for 

pollutants in areas that have an 

adequate or approved limited 

maintenance plan for a given pollutant 

and standard. However, a conformity 

determination that meets other 

applicable criteria, including the hotspot requirements for projects in CO and 

PM10 nonattainment and maintenance 

areas, interagency and public 

consultation, and timely 

implementation of TCMs in an 

approved SIP, is still required in these 

areas. A regional analysis also is 

required for any other pollutants or 

standards that otherwise apply but 

which are not the subject of a limited 

maintenance plan. The new § 93.109(j) 

requires a limited maintenance plan 

recognized under the conformity rule to 

have demonstrated that it would be 

unreasonable to expect that an area 

would experience enough motor vehicle 

emissions growth to cause a violation. 

The interagency consultation process 

should be used to discuss the 

development of a limited maintenance 

plan SIP (40 CFR 93.105(b)). 

Third, EPA is adding a new provision, 

§ 93.121(c), to clarify when funding and 

approval for new regionally significant 

non-federal projects is granted in areas 

with limited maintenance plans. 

Consistent with the new § 93.109(j) for 

federal projects in areas with limited 

maintenance plans, this provision 

would not require a regional emissions 

analysis per §§ 93.118 and/or 93.119 to 

be satisfied for regionally significant 

non-federal projects for the pollutant 

and standard that is addressed by the 

limited maintenance plan. However, the 

requirements in either § 93.121(a) or (b) 

are required to be satisfied for any 

remaining pollutants or standards that 

apply in such an area that are not 

addressed by the limited maintenance 

plan.

Based on the criteria for approving 

limited maintenance plans, EPA 

believes that violations of a standard for 

a pollutant due to unexpected regional 

growth would be highly unlikely in 

limited maintenance plan areas, 

although hot-spot violations could still 

occur. Furthermore, EPA considers it a 

reasonable assumption that motor 

vehicle emissions in an area that 

qualifies for a limited maintenance plan 

could increase to any realistic level 

during the maintenance period without 

causing or contributing to a violation of 

the standard. As a result, the budgets in 

limited maintenance plans are treated as 

essentially not constraining for the 

length of the maintenance period, and 

EPA believes that the Clean Air Act 

requirements to not worsen air quality 

are met presumptively without a 

regional conformity analysis. While this 

policy does not exempt an area from the 

need to determine conformity, it does 

eliminate the need for the regional 

emission analysis since EPA would be 

concluding through our adequacy 

review or approval of the limited 

maintenance plan that limits on motor 

vehicle emissions during the 

maintenance period are unnecessary, as 

long as the area maintains the standard. 

The revisions to §§ 93.101, 93.109 and 

93.121 in this final rule will not have a 

practical impact on how conformity is 

demonstrated in areas with applicable 

limited maintenance plans, as EPA is 

simply incorporating into the 

conformity rule our existing policies for 

these areas. The purpose of these rule 

revisions is to assist limited 

maintenance plan areas in their efforts 

to implement conformity. These 

revisions would in no way impose 

additional requirements for limited 

maintenance plan areas, nor would it 

eliminate any existing requirements 

applicable to such areas that could 

compromise air quality. 

For more information on 

transportation conformity and limited 

maintenance plans, see the preamble to 

the July 9, 1996 proposed conformity 

rule (61 FR 36118) and EPA’s existing 

limited maintenance plan policies, 

which are available in the docket for 

this rulemaking as listed in Section 

I.B.1. For a discussion on EPA’s 

adequacy review of limited maintenance 

plans, see the preamble to the June 30, 

2003 proposal (68 FR 38974). 

D. Grace Period for Transportation 

Modeling and Plan Content 

Requirements in Certain Ozone and CO 

Areas 

EPA is finalizing three changes to the 

conformity rule to clarify when more 

rigorous transportation modeling and 

plan content requirements apply when 

circumstances change in certain ozone 

and CO areas. Today’s rule revisions do 

not make any changes to the existing 

transportation plan content and 

modeling requirements. 

First, EPA is providing a two-year 

grace period in § 93.122(c) before the 

more advanced transportation modeling 

requirements in § 93.122(b) are required 

in the following types of nonattainment 

areas or portions of such areas that are 

40064 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

not already required to meet these 

provisions: 

• Ozone and CO areas that have an 

urbanized area population over 200,000 

and are reclassified to a serious or 

higher classification (e.g., such a 

moderate ozone area that is reclassified 

to serious); 

• Serious and above ozone and CO 

areas in which the urbanized area 

population increases to over 200,000; 

and 

• Newly designated ozone and CO 

nonattainment areas that are classified 

as serious or above in which the 

urbanized area population is over 

200,000.

EPA is clarifying in the final rule that 

the grace period covers areas or portions 

of areas that need additional start-up 

time to meet new requirements, as 

described further below. 

Second, EPA is expanding the types 

of areas covered by the current rule’s 

grace period for transportation plan 

content requirements. Under the 

previous rule, § 93.106(b) provided a 

two-year grace period before the more 

specific transportation plan 

requirements in § 93.106(a) applied in 

moderate ozone and CO areas that were 

reclassified to serious and had 

urbanized populations over 200,000. 

EPA crafted the rule that way because 

it believed at the time that only such 

areas would need additional time to 

implement the more sophisticated 

transportation planning requirements. 

Today’s final rule provides that same 

flexibility to nonattainment areas or 

portions of areas that are not already 

required to meet these requirements and 

are: 

• Ozone areas that have an urbanized 

area population over 200,000 that are 

reclassified to a serious or higher 

classification (e.g., such a moderate 

ozone area that is reclassified to 

serious), 

• Serious and above ozone and CO 

areas in which the urbanized area 

population increases to over 200,000; 

and 

• Newly designated ozone and CO 

nonattainment areas that are classified 

as serious or above in which the 

urbanized area population is over 

200,000.

EPA is clarifying the final rule so that 

these types of areas and portions of such 

areas which will also need time to 

implement newly applicable planning 

requirements are explicitly covered by 

the grace period, as originally intended. 

Third, EPA is clarifying in both 

§§ 93.106(b) and 93.122(c) that the twoyear grace periods begins upon either 

the: 

• Effective date of EPA’s action that 

reclassifies an ozone or CO area with an 

urbanized area population over 200,000, 

to a serious or higher classification, 

• Official notice by the Census 

Bureau that the urbanized area 

population is over 200,000, or 

• Effective date of EPA’s action that 

initially designates an area as a serious 

or above ozone or CO nonattainment 

area. 

An example of an official notice by the 

Census Bureau would be an 

announcement in the Federal Register

that the urbanized population in a 

metropolitan area has increased to over 

200,000. 

Rationale and Response to Comments 

In general, several commenters 

supported the two-year grace period as 

proposed, because it will allow 

additional time to meet new 

requirements when applicable. EPA is 

promulgating these rule revisions to 

provide flexibility as originally 

intended. For the reasons stated in the 

November 5, 2003 proposal (68 FR 

62717–8), EPA believes the final rule 

achieves the appropriate flexibility by 

providing the grace period to all areas 

or portions of areas that become newly 

subject to these requirements, but need 

start-up time because they have not 

previously been subject to these 

requirements. In addition, EPA 

originally intended §§ 93.106 and 

93.122 of the conformity rule to work 

together to provide start-up time when 

circumstances change, and providing a 

two-year grace period for both the plan 

content and modeling requirements 

achieves this goal. 

EPA is clarifying that the grace period 

will apply in portions of nonattainment 

areas, rather than entire areas, that are 

newly affected and are then required to 

meet the more rigorous requirements. 

For example, if a serious 8-hour 

nonattainment area is designated and 

includes additional counties to those 

within the previous serious 1-hour 

nonattainment area, the grace period 

would only apply to those additional 

counties.

In addition, the final rule clarifies 

how the grace period applies in newly 

designated 8-hour ozone nonattainment 

areas, or portions of such areas, that are 

initially classified as serious or above 

with an urbanized area population over 

200,000, and that have not previously 

been subject to §§ 93.106(a) and 

93.122(b) requirements. EPA believes 

that it has good cause to finalize a grace 

period for these newly designated areas, 

even though the proposal did not 

specifically propose to provide the grace 

period to such areas. EPA intended the 

grace period to apply to these newly 

designated areas as well, since it is 

reasonable that such an area, or portion 

of such an area, would also need 

additional time to specify its networks 

and gather additional data to develop a 

more specific plan and conduct more 

advanced transportation modeling. 

Requesting further public comment on 

this detail is unnecessary, since EPA 

believes it has already received any 

comments that would have been 

submitted on such a minor clarification. 

Consistent with the intention and spirit 

of the proposal, EPA has clarified the 

final regulatory language to provide the 

grace period in these areas. 

One commenter believed that 

allowing a two-year grace period for the 

development of regional transportation 

plans is not reasonable for areas that 

were already subject to this requirement 

because they have previously been 

designated serious or above. An 

example of this case would be an 8-hour 

ozone area classified as moderate that 

was previously classified as serious 

under the 1-hour ozone standard. The 

commenter argued that Clean Air Act 

section 176(c)(6) requires that these 

areas continue to be subject to the 

requirements that applied under the 

‘‘preexisting’’ air quality standard. 

EPA agrees with the commenter that 

areas that were previously subject to 

more rigorous transportation plan 

content and modeling requirements 

should continue to meet them. EPA did 

not intend to change this aspect of the 

existing rule with the proposal. Sections 

93.106(c) and 93.122(d) (formerly 

§ 93.122(c)) already require that if it had 

been the previous practice of MPOs to 

meet these requirements, they must 

continue to do so. In response, EPA has 

revised the final rule language to clarify 

that the grace period does not apply to 

those areas, or portions of such areas, 

that are already required to meet these 

requirements for an existing NAAQS. 

Another commenter supported EPA’s 

proposal, but noted that some 

transportation legislative proposals may 

change the transportation plan and TIP 

update intervals. This commenter 

suggested that EPA synchronize the 

grace period with the plan and TIP 

update periods to reduce the overall 

workload for planning agencies. 

EPA recognizes that Congress is 

currently considering various proposals 

for surface transportation 

reauthorization, which may amend 

transportation planning and/or 

transportation conformity provisions. 

However, EPA cannot promulgate 

regulations now against possible future 

statutory changes. We must promulgate 

regulations in light of the current law. 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40065

If changes to the transportation planning 

and conformity processes are passed 

into law, and those changes necessitate 

a regulatory change, EPA will propose 

and promulgate appropriate 

amendments to the rule at that time. 

In a similar light, a few other 

commenters stated that they opposed 

EPA’s proposal because they believed 

that the grace period should be aligned 

with the transportation plan 3-year 

update cycle. They believed that such a 

grace period would be more adequate. 

EPA did not propose to change the 

length of the grace period, which was 

originally finalized as part of the 

November 24, 1993 conformity rule (58 

FR 62188). EPA continues to believe 

that two years is an adequate time to 

meet applicable requirements. EPA 

must balance the benefits achieved by 

meeting the plan and modeling 

requirements, with the time needed to 

specify networks and perform the other 

data and collection activities necessary 

to develop network models and specific 

plans. See the preamble in the proposal 

for that rulemaking (January 11, 1993, 

58 FR 3776) for a discussion on the 

length of the two-year grace period. EPA 

continues to believe that a two-year 

period is an appropriate time span to 

accommodate these dual goals. 

EPA also intends to provide a full 

two-year grace period in all cases. The 

commenters’ suggestion would result in 

a shorter grace period in cases where an 

area is covered by the new regulation in 

the middle of the plan update cycle. For 

example, suppose an area updates its 

plan in 2009, and receives official notice 

in 2011 from the Census Bureau that its 

population has increased above 200,000, 

based on the 2010 census. Under 

commenters’ suggestion that the grace 

period correspond to the plan update 

cycle, this area would have only one 

year to implement the transportation 

plan content and modeling 

requirements because its plan update 

and conformity determination, required 

every three years, would be due in 2012. 

EPA does not believe this would 

provide sufficient time for such an area 

to implement the plan content and 

modeling requirements. 

In cases of areas increasing in 

population, several commenters 

believed that the grace period should 

begin when DOT notifies an area of the 

change in population, rather than upon 

the Census Bureau’s official notification 

in the Federal Register. They believed 

that such a change would allow for a 

more stable planning process and a 

more reliable start to the grace period. 

EPA disagrees with this approach for 

the following reasons. First, DOT does 

not issue formal notifications for all 

urbanized area definitions and changes. 

This is a Census Bureau function, and 

only the Census Bureau issues these 

notices. Although DOT issues a formal 

notice on the designation of 

transportation management areas 

(TMAs), this notification does not 

necessarily mean that the transportation 

plan content and modeling 

requirements in the conformity rule 

apply. Although most TMAs correspond 

to urbanized areas over 200,000 in 

population, DOT may also designate 

TMAs for certain areas under 200,000 

population, at the request of the 

Governor of a State. As described above, 

the current rule is based on urbanized 

area population, rather than TMA 

status. Therefore, changing the plan and 

modeling requirements to align with 

TMA designations may unintentionally 

apply these requirements to additional 

areas. Therefore, EPA is finalizing the 

rule as proposed, utilizing the Census 

Bureau’s notification as the starting date 

for the grace period. 

Finally, one commenter who also 

supported the proposal requested 

further information regarding the 

selection of 200,000 as the threshold 

population. The 200,000 population 

threshold was finalized as part of the 

August 15, 1997 conformity rule (62 FR 

43780). The preamble in the proposal 

for that rulemaking (July 9, 1996, 61 FR 

36122) discussed EPA’s rationale to 

limiting these requirements to areas 

with urbanized area populations over 

200,000. In general, EPA chose the 

200,000 population level because it is 

also the population level used to 

delineate transportation management 

areas (TMAs), and because this 

limitation would ensure that smaller 

urban or rural areas would not be 

subject to more rigorous network 

modeling procedures and methods. EPA 

continues to believe that the 200,000 

level in urbanized areas is appropriate 

for the plan content and modeling 

requirements. EPA did not propose any 

changes to the 200,000 urbanized 

population level in this rulemaking, and 

this final rule does not amend this 

threshold established in the 1997 

rulemaking. 

E. Minor Clarification to the List of PM10

Precursors 

Today’s final rule clarifies the list of 

PM10 precursors in §§ 93.102(b)(2)(iii) 

and 93.119(f)(5) of the conformity rule. 

Under the revised § 93.102(b)(2)(iii), 

only VOC and NOX are identified as 

PM10 precursors; i.e., PM10 is deleted 

from the list of PM10 precursors in this 

paragraph. We are finalizing this 

clarification because § 93.102(b)(1) 

already requires that direct PM10

emissions be addressed in conformity 

analyses in PM10 nonattainment and 

maintenance areas. Therefore, inclusion 

of direct PM10 as a PM10 precursor in 

§ 93.102(b)(2)(iii) is duplicative. 

The revisions to § 93.119(f)(5) provide 

consistency with other pollutants and 

precursors discussed in this paragraph. 

Neither of these rule changes will affect 

conformity determinations in PM10

nonattainment and maintenance areas. 

EPA received two comments on this 

clarification to the rule. Both 

commenters supported the change 

because it eliminates a source of 

confusion in the rule’s references to 

PM10 and clarifies the requirements of 

the rule. One of these commenters 

requested that EPA further clarify a 

number of additional terms. EPA does 

not agree that further changes to the rule 

are required, since these terms are not 

used in the proposal for this final rule. 

Please see a more detailed response in 

the response-to-comments document for 

this rulemaking in our docket. 

F. Clarification of Requirements for 

Non-Federal Projects in Isolated Rural 

Areas

EPA is finalizing a minor clarification 

to § 93.121(b)(1) of the conformity rule 

that addresses the conformity 

requirements for non-federal projects in 

isolated rural nonattainment and 

maintenance areas. Specifically, the 

final rule requires a regionally 

significant non-federal project to be 

included in the regional emissions 

analysis of the most recent conformity 

determination ‘‘that reflects’’ the portion 

of the statewide transportation plan and 

statewide transportation improvement 

program (STIP) which includes projects 

planned for the isolated rural 

nonattainment or maintenance area 

before the projects can be approved. 

Today’s revision to 93.121(b)(1) is 

intended to clarify that conformity 

determinations in isolated rural 

nonattainment and maintenance areas 

should not be ‘‘for’’ the statewide 

transportation plan or STIP, as written 

in the previous rule. In the proposal for 

the original 1993 conformity rule, we 

explained that ‘‘STIPs are not TIPs as 

the latter term is meant in Clean Air Act 

section 176(c), and that conformity 

therefore does not apply to [STIPs] 

directly’’ (January 11, 1993, 58 FR 

62206). However, isolated rural areas do 

not develop metropolitan transportation 

plans and TIPs per DOT’s planning 

regulations. Instead, conformity 

determinations in isolated rural 

nonattainment and maintenance areas 

should include those existing and 

planned projects that are within the area 

and that are reflected in the statewide 

40066 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

transportation plan and STIP, as well as 

any other regionally significant projects. 

This rule change simply clarifies the 

conformity requirements for isolated 

rural nonattainment and maintenance 

areas and should not have a practical 

impact on how conformity is 

demonstrated in these areas. 

EPA received one comment on this 

clarification to the rule. The commenter 

stated that as written the rule would 

allow regionally significant non-federal 

projects to be approved even if the most 

recent conformity determination for a 

plan and TIP was not approved. The 

commenter also indicated that EPA 

must change the rule to require that 

such approvals only occur when nonfederal projects are included in a 

conformity determination for a 

conforming plan and TIP. 

EPA agrees that regionally significant 

non-federal projects in isolated rural 

areas can only be approved if they have 

been included in a regional emissions 

analysis supporting the most recent 

conformity determination for the 

nonattainment or maintenance area or if 

they have been included in a regional 

emissions analysis showing that the area 

would continue to conform consistent 

with the requirements of §§ 93.118 and/

or 93.119 for projects not from a 

conforming transportation plan and TIP. 

We agree that the term ‘‘most recent 

conformity determination’’ refers to the 

most recent conformity determination 

that has been made by U.S. DOT. 

However, we do not agree that the rule 

needs to be revised to address the 

commenter’s concern that a regionally 

significant non-federal project could be 

approved even if the most recent 

conformity determination has not been 

approved. EPA promulgated this part of 

the regulatory text for isolated rural 

areas in 1997, and EPA did not propose 

a change through this rulemaking. EPA 

understands that in practice, areas have 

always interpreted this provision to 

refer to approved conformity 

determinations. Therefore, we believe 

that the regulated community 

understands that ‘‘most recent 

conformity determination’’ applies to 

the most recent approved determination 

since we are not aware that language in 

the rule has resulted in any issues or 

problems. 

The commenter also asserted that 

non-federal projects can only be 

approved if they are included in a 

conformity determination for a 

conforming TIP and plan. We disagree 

with the commenter’s assertion as it 

pertains to the approval of regionally 

significant non-federal projects in 

isolated rural areas. Isolated rural areas 

are not required to prepare TIPs and 

plans. Only metropolitan areas are 

required to prepare these documents. 

Therefore, regionally significant nonfederal projects in isolated rural projects 

may be approved as long as they meet 

the requirements of § 93.121(b)(1) or (2), 

which are described above. That is, 

although emissions from the project 

would be included in emissions 

analyses, the projects themselves would 

not require conformity determinations. 

G. Use of Adequate and Approved 

Budgets in Conformity 

As described in the June 30, 2003 and 

November 5, 2003 proposals to this final 

rule, EPA proposed to clarify in § 93.109 

for each criteria pollutant and standard 

that the budget test must be satisfied as 

required by § 93.118 for conformity 

determinations made on or after any one 

of the following: 

• The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted SIP is adequate, 

• The publication date of EPA’s 

approval of such a budget in the Federal 

Register, or 

• The effective date of EPA’s approval 

of such a budget in the Federal Register,

if the approval is completed through 

direct final rulemaking.

Under this final rule change, the budget 

would be used in any conformity 

determination conducted after the first 

time one of these three EPA actions 

occurs. See Section XV. for further 

information. 

H. Budget Test Requirements for the 

Attainment Year 

In this final rule, EPA is clarifying 

how § 93.118(b) and (d) should be 

implemented when a budget is 

established for a year prior to the 

attainment year (e.g., a reasonable 

further progress budget). Specifically, 

we are amending § 93.118(b) so that 

once an area has any control strategy 

SIP budget available for conformity 

purposes, conformity must be 

demonstrated using the ‘‘budget test’’

for the attainment year if the attainment 

year is within the time frame of the 

transportation plan. EPA believes that it 

is always appropriate to conduct a 

budget test for the attainment year if it 

is within the time frame of the 

transportation plan and an applicable 

control strategy budget is established, as 

explained in the June 30, 2003 proposal. 

Areas should use the interagency 

consultation process to determine the 

appropriate years for which the budget 

test must be performed. EPA received 

no comments on this proposed revision 

to the conformity rule. 

I. Budget Test Requirements Once a 

Maintenance Plan Is Submitted 

EPA is also finalizing two minor 

changes to § 93.118(b)(2) to clarify 

which budgets apply when an area has 

both control strategy SIP and 

maintenance plan budgets. First, EPA is 

clarifying § 93.118(b)(2)(iii) so that 

when a maintenance plan has been 

submitted, the budget test is also 

completed for a submitted adequate 

control strategy SIP budget that is 

established for any year within the time 

frame of the transportation plan. The 

previous § 93.118(b)(2)(iii) explicitly 

required areas with submitted 

maintenance plans to show consistency 

only to approved control strategy SIPs, 

but not adequate control strategy SIPs. 

Today’s action will ensure that new 

transportation plans and TIPs conform 

to all adequate and approved budgets 

that are established for years within the 

time frame of the transportation plan. 

Second, we are adding 

§ 93.118(b)(2)(iv) to clarify that the 

budget(s) established for the most recent 

prior year must be used for any analysis 

years that are selected before the last 

year of the maintenance plan to meet 

the requirements of § 93.118(d)(2). The 

previous conformity rule did not 

explicitly cover the situation where an 

analysis year is selected before the last 

year of the maintenance plan. The final 

rule provides consistency between the 

budget test requirements for control 

strategy SIPs and maintenance plans, 

since today’s § 93.118(b)(2) language for 

maintenance plans mirrors language 

that already exists in § 93.118(b)(1) for 

control strategy SIPs. If an area analyzes 

a year for which no applicable budgets 

exist (e.g., an intermediate year between 

an area’s attainment year and the first 

maintenance budget year), the area 

should always use the most recent prior 

adequate or approved budget to 

demonstrate conformity. This rationale 

also applies in areas that are submitting 

their second required 10-year 

maintenance plan. 

EPA received several comments 

requesting further clarification of our 

proposed revisions to § 93.118(b)(2). 

First, one commenter believed that the 

addition of § 93.118(b)(2)(iv) that 

requires conformity to prior budgets 

preempted the requirements for a 

qualitative finding under 

§ 93.118(b)(2)(i). This commenter asked 

that the preamble explain under what 

circumstances a qualitative finding 

would be appropriate. 

Section 93.118(b)(2)(i) states that 

when a maintenance plan is submitted 

that does not establish budgets for any 

years other than the last year of the 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40067

maintenance plan, a qualitative finding 

must be made to ensure 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. In our July 9, 1996 

proposal, we stated our conclusion that 

a ‘‘qualitative finding is necessary if the 

budget only addresses the last year of 

the maintenance plan, because the 

budget test alone is not sufficient to 

determine, as required by the Clean Air 

Act, that the transportation action will 

not cause a new violation. The 

emissions impacts in the initial ten 

years of the maintenance plan must be 

considered in some manner in order to 

determine conformity.’’

EPA still believes that a qualitative 

finding is necessary in all cases where 

a maintenance plan establishes budgets 

only for the last year of the 10-year 

maintenance period. However, we also 

believe that a regional emissions 

analysis and budget test using a 

previously established budget for a year 

prior to the last year of a maintenance 

plan, pursuant to § 93.118(b)(2)(iv), may 

fulfill the requirement for a qualitative 

finding in certain cases where the 

analysis is done for a year early in the 

term of the maintenance plan. Areas 

should use the interagency consultation 

process to determine the specific basis 

and necessary level of analysis to meet 

the qualitative finding requirement 

under § 93.118(b)(2)(i) as described in 

the June 1996 rulemaking. 

Another commenter stated that the 

proposed revisions to § 93.118(b)(2) do 

not clearly reflect their understanding 

that a budget established for a year 

beyond the time frame of a SIP (i.e., an 

‘‘outyear’’ budget) may be greater than 

the budgets established for a reasonable 

further progress, attainment or 

maintenance year. This commenter 

appears to have misinterpreted 

§ 93.118(b)(2)(iii) and (iv), as EPA did 

not intend for these provisions to mean 

that budgets established for any years 

within the time frame of the 

transportation plan (e.g., outyear 

budgets) must be less than or equal to 

a control strategy or maintenance plan 

budget. EPA intended for the phrase 

‘‘emissions * * * must be less than or 

equal’’ to refer to the emissions 

projected from planned and existing 

transportation activities in a specific 

analysis year for the conformity analysis 

that would be compared to an 

applicable control strategy or 

maintenance plan budget. EPA agrees 

that budgets apply only for the year they 

are established and for any future 

analysis years up until the next future 

budget year. Areas may submit larger 

budgets for outyears so long as they 

demonstrate that the SIP continues to 

provide for attainment or maintenance 

of the relevant air quality standard in 

those years. 

Finally, one commenter requested 

that EPA clarify the regional emissions 

analysis requirements in § 93.118(b) and 

(d) so that conformity to the applicable 

motor vehicle emissions budgets will 

continue to be affirmatively 

demonstrated during each of the years 

between budget years and not just for 

years in which the budget test is 

required. The commenter suggested that 

if regional emissions analyses are 

conducted for a budget year and a 

subsequent year during the time frame 

of the transportation plan, and both 

analyses are consistent with the SIP, 

then emissions in intervening years can 

be assumed to conform. However, if 

such analyses are not conducted and 

shown to conform in this manner (e.g., 

when the first analysis year is chosen 

for a year some time after the first 

applicable budget), the commenter 

believed a more targeted analysis is 

required to ensure conformity in 

intervening years. By not addressing 

this alleged deficiency in the rule, the 

commenter believed that EPA has failed 

to include the clarification in 

§ 93.118(b) and (d) most needed to serve 

the purposes of the Clean Air Act. 

EPA disagrees with this commenter 

and believes that the current rule’s 

budget test and regional emissions 

analysis requirements in § 93.118(b) and 

(d) are adequate for ensuring that 

transportation plans, programs and 

projects meet the conformity 

requirements of the Clean Air Act. Clean 

Air Act section 176(c) specifically 

requires emissions from transportation 

activities to be consistent with the 

motor vehicle emissions limits 

established in the SIP. However, the 

Clean Air Act is ambiguous about the 

specific time frame or years in which 

emissions tests or analyses must be 

conducted. In the 1993 conformity rule 

(58 FR 62188), EPA concluded as a legal 

matter that a demonstration of 

conformity for specific budget test years 

reasonably spaced over the time frame 

of the transportation plan is sufficient 

for meeting the Clean Air Act 

requirements and ensuring that 

emissions from transportation activities 

do not cause violations, worsen existing 

violations or delay timely attainment of 

the air quality standards. 

Furthermore, conducting conformity 

determinations and regional emissions 

analyses in accordance with the current 

rule’s requirements demands a 

significant amount of time and state and 

local resources. EPA believes it would 

be impractical and overly burdensome 

to require MPOs and state DOTs to 

conduct a budget test and regional 

emissions analysis for additional years 

within the time frame of a 20-year 

transportation plan than are already 

required. Based on EPA’s interpretation 

of the Clean Air Act since 1993, we 

believe that the current rule’s budget 

test and emissions analysis year 

requirements are consistent with the 

statute, reasonable to implement, and 

protective of public health. Moreover, 

EPA did not propose to alter this 

interpretation and thus, has not reopened this aspect of the conformity 

rule in this rulemaking. 

J. Exempt Projects 

Finally, we are making a minor 

revision to the list of exempt projects in 

§ 93.126 of the conformity rule. On 

December 21, 1999, DOT published a 

rule revision to its right-of-way 

regulation (64 FR 71284) that changed 

the citation for emergency or hardship 

advance land acquisitions (revised 

citation: 23 CFR 710.503) — activities 

that are currently exempt from the 

conformity process. As a result, we are 

revising § 93.126 to make the conformity 

rule fully consistent with DOT’s 

December 1999 rulemaking. This 

proposed revision in no way expands or 

reduces the types of land acquisitions 

that are exempt from transportation 

conformity; it merely updates the 

conformity rule’s reference to be 

consistent with DOT’s regulations. 

Commenters supported EPA’s 

proposal to make the conformity 

regulations consistent with DOT’s rightof-way regulations. However, one 

commenter asked EPA to broaden its 

revisions to the conformity rule’s list of 

exempt projects. This commenter 

believed that the current list of exempt 

projects does not fully reflect all the 

types of projects that should be exempt 

from conformity, given the progress over 

the last decade in understanding the 

real-world air quality impacts of 

different types of transportation 

projects. 

EPA did not propose amendments or 

clarifications to the list of exempt 

projects in §§ 93.126, 93.127 and 93.128, 

and therefore, cannot address the 

changes this commenter has suggested. 

Areas should use the interagency 

consultation process, including 

consultation with EPA, FHWA and 

FTA, to determine which projects in the 

area’s transportation plan and TIP 

should be considered exempt under 

§§ 93.126, 93.127 and 93.128 of the rule. 

40068 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

XXIV. Comments Not Related to 

Rulemaking 

Several commenters offered 

suggestions or raised concerns about 

aspects of the transportation conformity 

program that are not germane to this 

specific rulemaking. These aspects 

included the process for revising 

outyear SIP budgets; implementation of 

EPA and DOT’s April 9, 2000 

Memorandum of Understanding; 

reauthorization of the Surface 

Transportation Act, currently entitled 

Transportation Equity Act for the 21st

Century (or TEA–21), and other topics. 

These comments do not affect whether 

EPA should proceed with this final 

action. Because these comments are not 

germane to this action, EPA has not 

responded substantively to them.

In addition, two commenters urged 

EPA to publish the entire conformity 

regulatory text when we issued today’s 

final rule. These commenters stated that 

publication of the entire rule would 

make the regulation easier to 

understand and implement. In response 

to this comment, EPA will provide a 

complete version of the conformity 

regulations that includes today’s final 

rule on our transportation conformity 

website listed in Section I.B.2. of this 

notice. Individuals can also obtain a 

copy of the conformity regulations that 

incorporate today’s rule amendments 

from the next codification of the U.S. 

Code of Federal Regulations after this 

final rule is published in the Federal 

Register. A complete response to 

comments document is in the docket for 

this rulemaking. See Section I.B.2. of 

this final rule for more information 

regarding the relevant dockets and how 

to access additional information 

associated with this final rule. 

XXV. How Does Today’s Final Rule 

Affect Conformity SIPs? 

Clean Air Act section 176(c)(4)(C) 

currently requires states to submit 

revisions to their SIPs to reflect all of 

the federal criteria and procedures for 

determining conformity. States can 

choose to develop conformity SIPs as a 

memorandum of understanding (MOU), 

memorandum of agreement (MOA), or 

state rule. However, a state must have 

and use its authority to make an MOU 

or MOA enforceable as a matter of state 

law, if such mechanisms are used. 

Section 51.390(b) of the conformity rule 

specifies that after EPA approves any 

conformity SIP revision, the federal 

conformity rule no longer governs 

conformity determinations (for the 

sections of the federal conformity rule 

that are covered by the approved 

conformity SIP). 

EPA would like to clarify when 

provisions of today’s final rule apply in 

nonattainment and maintenance areas 

with and without EPA-approved 

conformity SIPs: 

• All provisions relating to the new 

standards apply immediately in all 

nonattainment and maintenance areas 

upon the effective date of today’s action 

because no prior conformity rules (or 

approved conformity SIPs) address 

these new standard requirements. 

• All amendments that address 

provisions directly impacted by the 

March 2, 1999 court decision apply 

immediately in all nonattainment and 

maintenance areas upon the effective 

date of today’s action. Although some 

areas have conformity SIPs that were 

approved prior to March 1999, 

provisions included in these SIPs that 

the court subsequently remanded to 

EPA for further rulemaking are no 

longer enforceable by law. As a result, 

all areas, including those with a 

previously approved conformity SIPs, 

have been operating under EPA and 

DOT’s guidance that implements the 

court decision and will be governed by 

the relevant court-related provisions of 

today’s action when they become 

effective. 

• In some areas, EPA has already 

approved conformity SIPs that include 

other provisions from previous 

conformity rulemakings that EPA is 

revising in this final rule. In these areas, 

the Clean Air Act prohibits today’s 

federal rule amendments that are not a 

direct result of the March 1999 court 

decision or specifically related to the 

new standards (e.g., streamlining the 

frequency of conformity determinations; 

revision to the latest planning 

assumptions requirement) from 

superceding the previously approved 

state rules. Therefore, these specific rule 

amendments will be effective in areas 

with approved conformity SIPs that 

include related rule provisions only 

when the state includes them in a SIP 

revision and EPA approves that SIP 

revision. EPA has no authority to 

disregard this statutory requirement for 

those portions of today’s final rule. 

• Areas without any approved 

conformity SIPs will be able to use 

immediately all of the conformity 

amendments that are included in 

today’s final rule.

EPA will provide further guidance on 

when sections of the conformity rule 

can be used in the conformity process 

in areas with approved conformity SIPs 

to assist states in implementing these 

provisions. This guidance will be posted 

on EPA’s transportation conformity Web 

site listed in Section I.B.2. of today’s 

final rule. 

One commenter did not agree that 

areas with approved conformity SIPs 

should have to revise their SIP before 

provisions of the final rule become 

effective. The commenter argued that 

this requirement penalizes areas with 

approved conformity SIPs and poses an 

undue burden on these areas to develop 

and gain EPA’s approval of a SIP 

revision. 

EPA believes that this commenter 

misunderstood the proposal which 

stated that amendments that address 

specific conformity requirements for the 

new standards can be used by all areas 

upon the effective date of today’s final 

rule, whether or not an area currently 

has an approved conformity SIP 

addressing pre-existing standards. This 

is possible since specific conformity 

requirements for the new standards 

should not be included in any currently 

approved conformity SIPs. 

However, amendments in today’s 

final rule that are for sections of the 

federal rule that are not specifically 

related to the new standards and that 

are not affected by a March 1999 court 

decision finding certain provisions 

illegal become effective in states with 

approved conformity SIPs only when 

the state includes the amended section 

in a conformity SIP revision and EPA 

approves that SIP revision. This is 

because such provisions of the federal 

rule that are being changed no longer 

apply directly in states with approved 

conformity SIPs covering those 

provisions. EPA will work with states to 

approve such revisions as expeditiously 

as possible through flexible 

administrative techniques, such as 

parallel processing or direct final 

rulemaking. EPA’s further guidance, as 

described above, will assist in 

conformity SIP revisions for today’s 

final rule. 

This same commenter supported a 

process such as that proposed in the 

Administration’s SAFETEA legislation 

that would streamline the conformity 

SIP requirement so that only 

interagency consultation requirements 

would need to be included in such SIP 

revisions. EPA supports this legislation, 

and if it becomes law, EPA agrees that 

the conformity SIP requirement will be 

significantly streamlined without 

practically affecting the conformity 

process. However, until such legislation 

is adopted, EPA is bound by the current 

Clean Air Act, and § 51.390 of the 

conformity rule continues to apply for 

conformity SIP revisions for this final 

rule. 

One commenter requested that EPA 

coordinate the finalization of the 

rulemakings that address the new 

standards and the March 1999 court 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40069

decision so that area’s will only need to 

revise their conformity SIPs once. 

Coordinating the release of the two final 

rules will assist in using state resources 

most efficiently and avoid duplication. 

EPA agrees with this commenter, and 

recommends that state and local air 

agencies should address both 

rulemakings in the same conformity SIP 

revision, since today’s final rule 

combines the majority of the conformity 

provisions from the previously separate 

rulemakings. 

XXVI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, [58 FR 

51735 (October 4, 1993)] the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may:

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

state, local, or tribal governments or 

communities; 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Under the terms of Executive Order 

12866, it has been determined that 

amendments in this rule that are related 

to conformity under the new air quality 

standards are a ‘‘significant regulatory 

action.’’ As such, this action was 

submitted to OMB for E.O. 12866 

review. Changes made in response to 

OMB suggestions or recommendations 

will be documented in the public 

record. 

B. Paperwork Reduction Act 

The information collection 

requirements for this final rule will be 

submitted for approval to the Office of 

Management and Budget (OMB) under 

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

3501 et seq. and as ICR 2130.02. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

Transportation conformity 

determinations are required under Clean 

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

7506(c)) to ensure that federally 

supported highway and transit project 

activities are consistent with (‘‘conform 

to’’) the purpose of the SIP. Conformity 

to the purpose of the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing violations, or delay timely 

attainment of the relevant air quality 

standards. Transportation conformity 

applies under EPA’s conformity 

regulations at 40 CFR parts 51.390 and 

93 to areas that are designated 

nonattainment and those redesignated 

to attainment after 1990 (‘‘maintenance 

areas’’ with SIPs developed under Clean 

Air Act section 175A) for transportationsource criteria pollutants. The Clean Air 

Act gives EPA the statutory authority to 

establish the criteria and procedures for 

determining whether transportation 

activities conform to the SIP. 

Amendments in today’s final rule that 

are related to conformity requirements 

in existing nonattainment and 

maintenance areas do not impose any 

new information collection 

requirements from EPA that require 

approval by OMB under the Paperwork 

Reduction Act of 1980, 44 U.S.C. 3501 

et seq. An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information, 

unless it displays a currently valid OMB 

control number. The information 

collection requirements of EPA’s 

existing transportation conformity rule 

and any revisions in today’s action for 

existing areas are covered under the 

DOT information collection request 

(ICR) entitled, ‘‘Metropolitan and 

Statewide Transportation Planning,’’

with the OMB control number of 2132–

0529. 

EPA provided two opportunities for 

public comment on the incremental 

burden estimates for transportation 

conformity determinations under the 

new 8-hour ozone and PM2.5 standards. 

First, the November 5, 2003 proposal 

contained an initial annual burden 

estimate for conducting conformity 

determinations of $6,750 and 275 hours 

for each metropolitan area designated 

nonattainment for the first time for the 

8-hour ozone and PM2.5 standards (e.g., 

areas that have never been subject to 

transportation conformity for any 

standard). EPA refined this burden 

estimate in the ICR that it released for 

public comment on January 5, 2004 (69 

FR 336). As described in the January 

2004 ICR (ICR 2130.01), the estimated 

annual state and local burden for 

conformity activities in each 

metropolitan nonattainment area that is 

expected to incur additional burden 

under the new ozone and PM2.5

standards is estimated at 325 hours/year 

at a cost of $16,320/year. Additional 

federal burden associated with 

conformity for each of these 

metropolitan nonattainment areas is 

approximately 127 hours/year at a cost 

of $6,400/year. Average state and local 

burden associated with conformity for 

each isolated rural nonattainment area 

that incurs new burden under the new 

standards is 42 hours/year at a cost of 

$2,111/year. New federal burden 

associated with each of these areas is 

calculated to be 10 hours/year at a cost 

of $503/year. 

EPA received comments on both the 

initial burden estimates provided in the 

November 5, 2003 proposal and on the 

revised estimates in the January 2004 

ICR. EPA will respond to all of these 

comments in the final ICR that will be 

submitted to OMB for approval (ICR 

2130.02). 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a federal 

agency. This includes the time needed 

to review instructions; develop, acquire, 

install and utilize technology and 

systems for the purposes of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and, transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

ICR 2130.02 is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, requires the Agency to conduct a 

regulatory flexibility analysis of any 

significant impact a rule will have on a 

substantial number of small entities. 

Small entities include small businesses, 

40070 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

small not-for-profit organizations and 

small government jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This regulation directly affects federal 

agencies and metropolitan planning 

organizations that, by definition, are 

designated under federal transportation 

laws only for metropolitan areas with a 

population of at least 50,000. These 

organizations do not constitute small 

entities within the meaning of the 

Regulatory Flexibility Act. 

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘federal mandates’’ that may result 

in expenditures to state, local, and tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. Before promulgating an 

EPA rule for which a written statement 

is needed, section 205 of the UMRA 

generally requires EPA to identify and 

consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective or least 

burdensome alternative that achieves 

the objectives of the rule. The 

provisions of section 205 do not apply 

when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this final 

rule does not contain a federal mandate 

that may result in expenditures of $100 

million or more for state, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. The 

primary purpose of this rulemaking is to 

amend the existing federal conformity 

regulations to cover areas newly 

designated nonattainment under the 

recently promulgated 8-hour ozone and 

PM2.5 air quality standards. Clean Air 

Act section 176(c)(5) requires the 

applicability of conformity to such areas 

as a matter of law one year after 

nonattainment designations. Thus, 

although this rule explains how 

conformity should be conducted, it 

merely implements already established 

law that imposes conformity 

requirements and does not itself impose 

requirements that may result in 

expenditures of $100 million or more in 

any year. 

This rulemaking also formalizes what 

the U.S. Court of Appeals for the District 

of Columbia Circuit has already decided 

as a legal matter, and that is currently 

being implemented in practice. 

Additional rule amendments also 

addressed in this final rule simply serve 

to improve the conformity regulation by 

implementing the rule in a more 

practicable manner and/or to clarify 

conformity requirements that already 

exist. None of these rule amendments 

impose any additional burdens beyond 

that already imposed by applicable 

federal law; thus, today’s final rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA and 

EPA has not prepared a statement with 

respect to budgetary impacts. 

E. Executive Order 13132: Federalism 

Executive Order 13132, Federalism 

(64 FR 43255, August 10, 1999), revokes 

and replaces Executive Orders 12612 

(Federalism) and 12875 (Enhancing the 

Intergovernmental Partnership). 

Executive Order 13132 requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, EPA may not issue a 

regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with state 

and local officials early in the process 

of developing the regulation. EPA also 

may not issue a regulation that has 

federalism implications and that 

preempts state law unless the Agency 

consults with state and local officials 

early in the process of developing the 

proposed regulation. 

If EPA complies by consulting, 

Executive Order 13132 requires EPA to 

provide to the Office of Management 

and Budget (OMB), in a separately 

identified section of the preamble to the 

rule, a federalism summary impact 

statement (FSIS). The FSIS must include 

a description of the extent of EPA’s 

prior consultation with state and local 

officials, a summary of the nature of 

their concerns and the Agency’s 

position supporting the need to issue 

the regulation, and a statement of the 

extent to which the concerns of state 

and local officials have been met. Also, 

when EPA transmits a draft rule with 

federalism implications to OMB for 

review pursuant to Executive Order 

12866, EPA must include a certification 

from the Agency’s Federalism Official 

stating that EPA has met the 

requirements of Executive Order 13132 

in a meaningful and timely manner. 

This final rule, that amends a 

regulation that is required by statute, 

will not have substantial direct effects 

on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132. The 

Clean Air Act requires conformity to 

apply in certain nonattainment and 

maintenance areas as a matter of law, 

and this final rule merely establishes 

and revises procedures for 

transportation planning entities in 

subject areas to follow in meeting their 

existing statutory obligations. 

In addition, the U.S. Court of Appeals 

for the District of Columbia Circuit has 

determined that projects requiring 

federal approval and funding are 

affected when a nonattainment or 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40071

maintenance area is unable to 

demonstrate conformity. Specifically, 

under Clean Air Act section 176(c) those 

phases (NEPA approval, right-of-way 

acquisition, final design, or 

construction) in a federal project’s 

development that have not received 

federal approval or funding prior to a 

conformity lapse cannot be granted 

approval or funding, and thus proceed 

during a conformity lapse. Furthermore, 

the court directed EPA to establish new 

procedures for determining the 

adequacy of motor vehicle emissions 

estimates before such estimates can be 

used in conformity determinations to 

comply with Clean Air Act 

requirements. Similarly, other 

amendments included in this final rule 

are the result of either the court’s order 

concerning the proper interpretation of 

the Clean Air Act and other related 

administrative matters, or have been 

proposed simply to make the rule more 

workable and/or to clarify requirements 

that already exist under the current 

conformity regulation. 

In summary, this final rule is required 

primarily by the statutory requirements 

imposed by the Clean Air Act, and the 

final rule by itself will not have a 

substantial impact on states. Thus, the 

requirements of section 6 of the 

Executive Order do not apply to this 

final rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175: ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

6, 2000) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

Today’s amendments to the 

conformity rule do not significantly or 

uniquely affect the communities of 

Indian tribal governments, as the Clean 

Air Act requires transportation 

conformity to apply in any area that is 

designated nonattainment or 

maintenance by EPA. Specifically, this 

final rule incorporates into the 

conformity rule provisions addressing 

newly designated nonattainment areas 

subject to conformity requirements 

under the Act, the court’s interpretation 

of the Act, as well as several other 

clarifications and improvements, that 

have no substantial direct effects on 

tribal governments, on the relationship 

between the federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

federal government and Indian tribes, as 

specified in Executive Order 13175. 

Accordingly, the requirements of 

Executive Order 13175 are not 

applicable to this rulemaking.

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to 

Executive Order 13045 because it is not 

economically significant within the 

meaning of Executive Order 12866 and 

does not involve the consideration of 

relative environmental health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Action Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355; May 22, 2001) because it will 

not have a significant adverse effect on 

the supply, distribution, or use of 

energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, the use 

of voluntary consensus standards does 

not apply to this final rule. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit this final 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 final 

rule in the Federal Register. This rule 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). This rule will be effective 

on August 2, 2004. 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by August 30, 2004. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review, nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such a rule or action. This action may 

not be challenged later in proceeding to 

enforce its requirements. (See section 

307(b)(2) of the Administrative 

Procedures Act.)

List of Subjects in 40 CFR Part 93 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Inter governmental relations, Nitrogen 

Dioxide, Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds.

Dated: June 14, 2004. 

Michael O. Leavitt, 

Administrator.

For the reasons set out in the 

preamble, 40 CFR part 93 is amended as 

follows:

40072 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

PART 93—[AMENDED]

■ 1. The authority citation for part 93 

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

■ 2. Section 93.101 is amended by 

adding, in alphabetical order, new 

definitions for ‘‘1-hour ozone NAAQS,’’

‘‘8-hour ozone NAAQS,’’ ‘‘Donut areas,’’

‘‘Isolated rural nonattainment and 

maintenance areas,’’ and ‘‘Limited 

maintenance plan,’’ and by revising 

definitions for ‘‘Control strategy 

implementation plan revision’’ and 

‘‘Milestone’’ to read as follows:

§ 93.101 Definitions.

* * * * *

1-hour ozone NAAQS means the 1-

hour ozone national ambient air quality 

standard codified at 40 CFR 50.9.

* * * * *

8-hour ozone NAAQS means the 8-

hour ozone national ambient air quality 

standard codified at 40 CFR 50.10.

* * * * *

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 (including 

implementation plan revisions 

submitted to satisfy CAA sections 

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

182(c)(2)(B), 187(a)(7), 187(g), 

189(a)(1)(B), 189(b)(1)(A), and 189(d); 

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

dioxide; and any other applicable CAA 

provision requiring a demonstration of 

reasonable further progress or 

attainment).

* * * * *

Donut areas are geographic areas 

outside a metropolitan planning area 

boundary, but inside the boundary of a 

nonattainment or maintenance area that 

contains any part of a metropolitan 

area(s). These areas are not isolated 

rural nonattainment and maintenance 

areas.

* * * * *

Isolated rural nonattainment and 

maintenance areas are areas that do not 

contain or are not part of any 

metropolitan planning area as 

designated under the transportation 

planning regulations. Isolated rural 

areas do not have Federally required 

metropolitan transportation plans or 

TIPs and do not have projects that are 

part of the emissions analysis of any 

MPO’s metropolitan transportation plan 

or TIP. Projects in such areas are instead 

included in statewide transportation 

improvement programs. These areas are 

not donut areas.

* * * * *

Limited maintenance plan is a 

maintenance plan that EPA has 

determined meets EPA’s limited 

maintenance plan policy criteria for a 

given NAAQS and pollutant. To qualify 

for a limited maintenance plan, for 

example, an area must have a design 

value that is significantly below a given 

NAAQS, and it must be reasonable to 

expect that a NAAQS violation will not 

result from any level of future motor 

vehicle emissions growth.

* * * * *

Milestone has the meaning given in 

CAA sections 182(g)(1) and 189(c) for 

serious and above ozone nonattainment 

areas and PM10 nonattainment areas, 

respectively. For all other 

nonattainment areas, a milestone 

consists of an emissions level and the 

date on which that level is to be 

achieved as required by the applicable 

CAA provision for reasonable further 

progress towards attainment.

* * * * *

■ 3. Section 93.102 is amended by:

■ a. Revising paragraphs (b)(1), (b)(2) 

introductory text and (b)(2)(iii);

■ b. Redesignating paragraph (b)(3) as 

paragraph (b)(4);

■ c. Adding a new paragraph (b)(3);

■ d. Revising paragraph (c); and

■ e. Revising paragraph (d).

The revisions and additions read as 

follows:

§ 93.102 Applicability.

* * * * *

(b) * * * 

(1) The provisions of this subpart 

apply with respect to emissions of the 

following criteria pollutants: ozone, 

carbon monoxide (CO), nitrogen dioxide 

(NO2), particles with an aerodynamic 

diameter less than or equal to a nominal 

10 micrometers (PM10); and particles 

with an aerodynamic diameter less than 

or equal to a nominal 2.5 micrometers 

(PM2.5). 

(2) The provisions of this subpart also 

apply with respect to emissions of the 

following precursor pollutants:

* * * * *

(iii) VOC and/or NOX in PM10 areas if 

the EPA Regional Administrator or the 

director of the State air agency has made 

a finding that transportation-related 

emissions of one or both of these 

precursors 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 an approved (or adequate) 

budget for such emissions as part of the 

reasonable further progress, attainment 

or maintenance strategy. 

(3) The provisions of this subpart 

apply to PM2.5 nonattainment and 

maintenance areas with respect to PM2.5

from re-entrained road dust if the EPA 

Regional Administrator or the director 

of the State air agency has made a 

finding that re-entrained road dust 

emissions within the area are a 

significant contributor to the PM2.5

nonattainment problem and has so 

notified the MPO and DOT, or if the 

applicable implementation plan (or 

implementation plan submission) 

includes re-entrained road dust in the 

approved (or adequate) budget as part of 

the reasonable further progress, 

attainment or maintenance strategy. Reentrained road dust emissions are 

produced by travel on paved and 

unpaved roads (including emissions 

from anti-skid and deicing materials).

* * * * *

(c) Limitations. In order to receive any 

FHWA/FTA approval or funding 

actions, including NEPA approvals, for 

a project phase subject to this subpart, 

a currently conforming transportation 

plan and TIP must be in place at the 

time of project approval as described in 

§ 93.114, except as provided by 

§ 93.114(b). 

(d) Grace period for new 

nonattainment areas. For areas or 

portions of areas which have been 

continuously designated attainment or 

not designated for any NAAQS for 

ozone, CO, PM10, PM2.5 or NO2 since 

1990 and are subsequently redesignated 

to nonattainment or designated 

nonattainment for any NAAQS for any 

of these pollutants, the provisions of 

this subpart shall not apply with respect 

to that NAAQS for 12 months following 

the effective date of final designation to 

nonattainment for each NAAQS for such 

pollutant.

■ 4. Section 93.104 is amended by:

■ a. Revising the first sentence in 

paragraph (b)(3);

■ b. Revising the first sentence in 

paragraph (c)(3), and removing 

paragraph (c)(4);

■ c. Revising paragraph (d); and

■ d. Removing paragraphs (e)(1) and 

(e)(4) and redesignating paragraphs 

(e)(2), (e)(3) and (e)(5) as paragraphs 

(e)(1), (e)(2) and (e)(3), and by revising 

newly redesignated paragraphs (e)(2) 

and (e)(3). 

The revisions read as follows:

§ 93.104 Frequency of conformity 

determinations.

* * * * *

(b) * * * 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40073

(3) The MPO and DOT must 

determine the conformity of the 

transportation plan (including a new 

regional emissions analysis) no less 

frequently than every three years. * * *

(c) * * *

(3) The MPO and DOT must 

determine the conformity of the TIP 

(including a new regional emissions 

analysis) no less frequently than every 

three years. * * *

(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 one of the following occurs: a 

significant change in the project’s 

design concept and scope; three years 

elapse since the most recent major step 

to advance the project; or initiation of a 

supplemental environmental document 

for air quality purposes. Major steps 

include NEPA process completion; start 

of final design; acquisition of a 

significant portion of the right-of-way; 

and, construction (including Federal 

approval of plans, specifications and 

estimates). 

(e) * * *

(2) The effective date of EPA approval 

of a control strategy implementation 

plan revision or maintenance plan 

which establishes or revises a motor 

vehicle emissions budget if that budget 

has not yet been used in a conformity 

determination prior to approval; and 

(3) The effective date of EPA 

promulgation of an implementation 

plan which establishes or revises a 

motor vehicle emissions budget.

■ 5. Section 93.105(c)(1)(vii) is amended 

by revising the reference 

‘‘§ 93.109(g)(2)(iii)’’ to read 

‘‘§ 93.109(l)(2)(iii).’’

■ 6. Section 93.106 is amended by 

revising paragraph (b) to read as follows:

§ 93.106 Content of transportation plans.

* * * * *

(b) Two-year grace period for 

transportation plan requirements in 

certain ozone and CO areas. The 

requirements of paragraph (a) of this 

section apply to such areas or portions 

of such areas that have previously not 

been required to meet these 

requirements for any existing NAAQS 

two years from the following: 

(1) The effective date of EPA’s 

reclassification of an ozone or CO 

nonattainment area that has an 

urbanized area population greater than 

200,000 to serious or above; 

(2) The official notice by the Census 

Bureau that determines the urbanized 

area population of a serious or above 

ozone or CO nonattainment area to be 

greater than 200,000; or, 

(3) The effective date of EPA’s action 

that classifies a newly designated ozone 

or CO nonattainment area that has an 

urbanized area population greater than 

200,000 as serious or above.

* * * * *

■ 7. Section 93.109 is amended by:

■ a. Revising the paragraph (b) 

introductory text;

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

the entry for ‘‘§ 93.118 or § 93.119’’

under ‘‘Transportation Plan:’’ and the 

entry for ‘‘§ 93.118 or § 93.119’’ under 

‘‘TIP:’’, and revising the entry for 

‘‘§ 93.117’’ under ‘‘Project (From a 

Conforming Plan and TIP):’’ and the 

entries for ‘‘§ 93.117’’ and ‘‘§ 93.118 or 

§ 93.119’’ under ‘‘Project (Not From a 

Conforming Plan and TIP):’’

■ c. Revising paragraph (c);

■ d. Redesignating paragraphs (d), (e), (f) 

and (g) as paragraphs (f), (g), (h) and (l);

■ e. Adding new paragraphs (d), (e), (i), 

(j) and (k);

■ f. Revising newly redesignated 

paragraphs (f) introductory text, (f)(2), 

(f)(3) and (f)(4)(i) and (ii);

■ g. Revising newly redesignated 

paragraphs (g) introductory text, (g)(2), 

and (g)(3);

■ h. Revising newly redesignated 

paragraph (h); and

■ i. Revising newly redesignated 

paragraph (l)(2) introductory text; in 

newly redesignated paragraph 

(l)(2)(ii)(B), revising ‘‘§ 93.119(d)(2)’’ to 

read ‘‘§ 93.119(f)(2)’’ and, in newly 

redesignated paragraph (l)(2)(iii), 

revising ‘‘paragraph (g)(2)(ii)’’ and 

‘‘paragraph (g)(2)(ii)(C)’’ to read 

‘‘paragraph (l)(2)(ii)’’ and ‘‘paragraph 

(l)(2)(ii)(C)’’, respectively. 

The revisions and additions read as 

follows:

§ 93.109 Criteria and procedures for 

determining conformity of transportation 

plans, programs, and projects: General.

* * * * *

(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/

FTA projects. Paragraphs (c) through (i) 

of this section explain when the budget, 

interim emissions, and hot-spot tests are 

required for each pollutant and NAAQS. 

Paragraph (j) of this section addresses 

conformity requirements for areas with 

approved or adequate limited 

maintenance plans. Paragraph (k) of this 

section addresses nonattainment and 

maintenance areas which EPA has 

determined have insignificant motor 

vehicle emissions. Paragraph (l) of this 

section addresses isolated rural 

nonattainment and maintenance areas. 

Table 1 follows:

TABLE 1.—CONFORMITY CRITERIA

*******

Transportation Plan: 

*******

§ 93.118 and/or § 93.119 ......................................................................................................... Emissions budget and/or Interim emissions. 

*******

TIP: 

*******

§ 93.118 and/or § 93.119 ......................................................................................................... Emissions budget and/or Interim emissions. 

*******

Project (From a Conforming Plan and TIP): 

*******

§ 93.117 ................................................................................................................................... PM10 and PM2.5 control measures. 

40074 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

TABLE 1.—CONFORMITY CRITERIA—Continued

*******

Project (Not From a Conforming Plan and TIP): 

*******

§ 93.117 ................................................................................................................................... PM10 and PM2.5 control measures. 

§ 93.118 and/or § 93.119 ......................................................................................................... Emissions budget and/or Interim emissions. 

*******

(c) 1-hour ozone NAAQS 

nonattainment and maintenance areas.

This paragraph applies when an area is 

nonattainment or maintenance for the 1-

hour ozone NAAQS (i.e., until the 

effective date of any revocation of the 1-

hour ozone NAAQS for an area). 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 

such ozone nonattainment and 

maintenance areas conformity 

determinations must include a 

demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) In all 1-hour ozone nonattainment 

and maintenance areas the budget test 

must be satisfied as required by § 93.118 

for conformity determinations made on 

or after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for the 1-hour ozone 

NAAQS is adequate for transportation 

conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(2) In ozone nonattainment areas that 

are required to submit a control strategy 

implementation plan revision for the 1-

hour ozone NAAQS (usually moderate 

and above areas), the interim emissions 

tests must be satisfied as required by 

§ 93.119 for conformity determinations 

made when there is no approved motor 

vehicle emissions budget from an 

applicable implementation plan for the 

1-hour ozone NAAQS and no adequate 

motor vehicle emissions budget from a 

submitted control strategy 

implementation plan revision or 

maintenance plan for the 1-hour ozone 

NAAQS.

(3) An ozone nonattainment area must 

satisfy the interim emissions 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 for the 

1-hour ozone NAAQS 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 for the 1-hour ozone NAAQS 

(usually marginal and below areas) must 

satisfy one of the following 

requirements: 

(i) The interim emissions tests 

required by § 93.119; or 

(ii) The State shall submit to EPA an 

implementation plan revision for the 1-

hour ozone NAAQS that contains motor 

vehicle emissions budget(s) and a 

reasonable further progress or 

attainment demonstration, and the 

budget test required by § 93.118 must be 

satisfied using the adequate or approved 

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 for the 1-hour 

ozone NAAQS 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 

for the 1-hour ozone NAAQS must 

satisfy one of the following 

requirements: 

(i) The interim emissions tests as 

required by § 93.119; 

(ii) The budget test as required by 

§ 93.118, using the adequate or 

approved motor vehicle emissions 

budgets in the submitted or applicable 

control strategy implementation plan for 

the 1-hour ozone NAAQS (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 for the 1-hour ozone 

NAAQS. 

(d) 8-hour ozone NAAQS 

nonattainment and maintenance areas 

without motor vehicle emissions budgets 

for the 1-hour ozone NAAQS for any 

portion of the 8-hour nonattainment 

area. This paragraph applies to areas 

that were never designated 

nonattainment for the 1-hour ozone 

NAAQS and areas that were designated 

nonattainment for the 1-hour ozone 

NAAQS but that never submitted a 

control strategy SIP or maintenance plan 

with approved or adequate motor 

vehicle emissions budgets. This 

paragraph applies 1 year after the 

effective date of EPA’s nonattainment 

designation for the 8-hour ozone 

NAAQS for an area, according to 

§ 93.102(d). 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 such 8-hour ozone 

nonattainment and maintenance areas 

conformity determinations must include 

a demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) In such 8-hour ozone 

nonattainment and maintenance areas 

the budget test must be satisfied as 

required by § 93.118 for conformity 

determinations made on or after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for the 8-hour ozone 

NAAQS is adequate for transportation 

conformity purposes; 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40075

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(2) In ozone nonattainment areas that 

are required to submit a control strategy 

implementation plan revision for the 8-

hour ozone NAAQS (usually moderate 

and above and certain Clean Air Act, 

part D, subpart 1 areas), the interim 

emissions tests must be satisfied as 

required by § 93.119 for conformity 

determinations made when there is no 

approved motor vehicle emissions 

budget from an applicable 

implementation plan for the 8-hour 

ozone NAAQS and no adequate motor 

vehicle emissions budget from a 

submitted control strategy 

implementation plan revision or 

maintenance plan for the 8-hour ozone 

NAAQS. 

(3) Such an 8-hour ozone 

nonattainment area must satisfy the 

interim emissions 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 other control strategy 

SIP that addresses reasonable further 

progress that does not include a motor 

vehicle emissions budget for NOX. The 

implementation plan for the 8-hour 

ozone NAAQS 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 2002. 

(4) Ozone nonattainment areas that 

have not submitted a maintenance plan 

and that are not required to submit a 

control strategy implementation plan 

revision for the 8-hour ozone NAAQS 

(usually marginal and certain Clean Air 

Act, part D, subpart 1 areas) must satisfy 

one of the following requirements: 

(i) The interim emissions tests 

required by § 93.119; or 

(ii) The State shall submit to EPA an 

implementation plan revision for the 8-

hour ozone NAAQS that contains motor 

vehicle emissions budget(s) and a 

reasonable further progress or 

attainment demonstration, and the 

budget test required by § 93.118 must be 

satisfied using the adequate or approved 

motor vehicle emissions budget(s) (as 

described in paragraph (d)(1) of this 

section). 

(5) Notwithstanding paragraphs (d)(1) 

and (d)(2) of this section, ozone 

nonattainment areas with three years of 

clean data for the 8-hour ozone NAAQS 

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 

for the 8-hour ozone NAAQS must 

satisfy one of the following 

requirements: 

(i) The interim emissions tests as 

required by § 93.119; 

(ii) The budget test as required by 

§ 93.118, using the adequate or 

approved motor vehicle emissions 

budgets in the submitted or applicable 

control strategy implementation plan for 

the 8-hour ozone NAAQS (subject to the 

timing requirements of paragraph (d)(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 for the 8-hour ozone 

NAAQS. 

(e) 8-hour ozone NAAQS 

nonattainment and maintenance areas 

with motor vehicle emissions budgets 

for the 1-hour ozone NAAQS that cover 

all or a portion of the 8-hour 

nonattainment area. This provision 

applies 1 year after the effective date of 

EPA’s nonattainment designation for the 

8-hour ozone NAAQS for an area, 

according to § 93.102(d). 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 

such 8-hour ozone nonattainment and 

maintenance areas conformity 

determinations must include a 

demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) In such 8-hour ozone 

nonattainment and maintenance areas 

the budget test must be satisfied as 

required by § 93.118 for conformity 

determinations made on or after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for the 8-hour ozone 

NAAQS is adequate for transportation 

conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking.

(2) Prior to paragraph (e)(1) of this 

section applying, the following test(s) 

must be satisfied, subject to the 

exception in paragraph (e)(2)(v): 

(i) If the 8-hour ozone nonattainment 

area covers the same geographic area as 

the 1-hour ozone nonattainment or 

maintenance area(s), the budget test as 

required by § 93.118 using the approved 

or adequate motor vehicle emissions 

budgets in the 1-hour ozone applicable 

implementation plan or implementation 

plan submission; 

(ii) If the 8-hour ozone nonattainment 

area covers a smaller geographic area 

within the 1-hour ozone nonattainment 

or maintenance area(s), the budget test 

as required by § 93.118 for either: 

(A) The 8-hour nonattainment area 

using corresponding portion(s) of the 

approved or adequate motor vehicle 

emissions budgets in the 1-hour ozone 

applicable implementation plan or 

implementation plan submission where 

such portion(s) can reasonably be 

identified through the interagency 

consultation process required by 

§ 93.105; or 

(B) The 1-hour nonattainment area 

using the approved or adequate motor 

vehicle emissions budgets in the 1-hour 

ozone applicable implementation plan 

or implementation plan submission. If 

additional emissions reductions are 

necessary to meet the budget test for the 

8-hour ozone NAAQS in such cases, 

these emissions reductions must come 

from within the 8-hour nonattainment 

area; 

(iii) If the 8-hour ozone nonattainment 

area covers a larger geographic area and 

encompasses the entire 1-hour ozone 

nonattainment or maintenance area(s): 

(A) The budget test as required by 

§ 93.118 for the portion of the 8-hour 

ozone nonattainment area covered by 

the approved or adequate motor vehicle 

emissions budgets in the 1-hour ozone 

applicable implementation plan or 

implementation plan submission; and 

(B) The interim emissions tests as 

required by § 93.119 for either: the 

portion of the 8-hour ozone 

nonattainment area not covered by the 

approved or adequate budgets in the 1-

hour ozone implementation plan, the 

entire 8-hour ozone nonattainment area, 

or the entire portion of the 8-hour ozone 

nonattainment area within an 

individual state, in the case where 

separate 1-hour SIP budgets are 

established for each state of a multi-state 

1-hour nonattainment or maintenance 

area; 

(iv) If the 8-hour ozone nonattainment 

area partially covers a 1-hour ozone 

nonattainment or maintenance area(s): 

(A) The budget test as required by 

§ 93.118 for the portion of the 8-hour 

40076 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

ozone nonattainment area covered by 

the corresponding portion of the 

approved or adequate motor vehicle 

emissions budgets in the 1-hour ozone 

applicable implementation plan or 

implementation plan submission where 

they can be reasonably identified 

through the interagency consultation 

process required by § 93.105; and 

(B) The interim emissions tests as 

required by § 93.119, when applicable, 

for either: the portion of the 8-hour 

ozone nonattainment area not covered 

by the approved or adequate budgets in 

the 1-hour ozone implementation plan, 

the entire 8-hour ozone nonattainment 

area, or the entire portion of the 8-hour 

ozone nonattainment area within an 

individual state, in the case where 

separate 1-hour SIP budgets are 

established for each state in a multistate 1-hour nonattainment or 

maintenance area. 

(v) Notwithstanding paragraphs 

(e)(2)(i), (ii), (iii), or (iv) of this section, 

the interim emissions tests as required 

by § 93.119, where the budget test using 

the approved or adequate motor vehicle 

emissions budgets in the 1-hour ozone 

applicable implementation plan(s) or 

implementation plan submission(s) for 

the relevant area or portion thereof is 

not the appropriate test and the interim 

emissions tests are more appropriate to 

ensure that the transportation plan, TIP, 

or project not from a conforming plan 

and TIP will not create new violations, 

worsen existing violations, or delay 

timely attainment of the 8-hour ozone 

standard, as determined through the 

interagency consultation process 

required by § 93.105. 

(3) Such an 8-hour ozone 

nonattainment area must satisfy the 

interim emissions test for NOX, as 

required by § 93.119, if the only 

implementation plan or plan 

submission that is applicable for the 

purposes of conformity determinations 

is a 15% plan or other control strategy 

SIP that addresses reasonable further 

progress that does not include a motor 

vehicle emissions budget for NOX. The 

implementation plan for the 8-hour 

ozone NAAQS 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 2002. Prior to an adequate or 

approved NOX motor vehicle emissions 

budget in the implementation plan 

submission for the 8-hour ozone 

NAAQS, the implementation plan for 

the 1-hour ozone NAAQS will be 

considered to establish a motor vehicle 

emissions budget for NOX if the 

implementation plan 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) Notwithstanding paragraphs (e)(1) 

and (e)(2) of this section, ozone 

nonattainment areas with three years of 

clean data for the 8-hour ozone NAAQS 

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 

for the 8-hour ozone NAAQS must 

satisfy one of the following 

requirements: 

(i) The budget test and/or interim 

emissions tests as required by §§ 93.118 

and 93.119 and as described in 

paragraph (e)(2) of this section; 

(ii) The budget test as required by 

§ 93.118, using the adequate or 

approved motor vehicle emissions 

budgets in the submitted or applicable 

control strategy implementation plan for 

the 8-hour ozone NAAQS (subject to the 

timing requirements of paragraph (e)(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 for the 8-hour ozone 

NAAQS. 

(f) 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 interim emissions tests 

are satisfied as described in the 

following:

* * * * *

(2) In CO nonattainment and 

maintenance areas the budget test must 

be satisfied as required by § 93.118 for 

conformity determinations made on or 

after:

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan is adequate for 

transportation conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(3) Except as provided in paragraph 

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

nonattainment areas the interim 

emissions tests must be satisfied as 

required by § 93.119 for conformity 

determinations made when there is no 

approved motor vehicle emissions 

budget from an applicable 

implementation plan and no adequate 

motor vehicle emissions budget from a 

submitted control strategy 

implementation plan revision or 

maintenance plan. 

(4) * * *

(i) The interim emissions 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 adequate or approved motor 

vehicle emissions budget(s) (as 

described in paragraph (f)(2) of this 

section). 

(g) 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 interim emissions tests 

are satisfied as described in the 

following: 

(1) * * *

(2) In PM10 nonattainment and 

maintenance areas the budget test must 

be satisfied as required by § 93.118 for 

conformity determinations made on or 

after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan is adequate for 

transportation conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(3) In PM10 nonattainment areas the 

interim emissions tests must be satisfied 

as required by § 93.119 for conformity 

determinations made: 

(i) If there is no approved motor 

vehicle emissions budget from an 

applicable implementation plan and no 

adequate motor vehicle emissions 

budget from a submitted control strategy 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40077

implementation plan revision or 

maintenance plan; or 

(ii) If the submitted implementation 

plan revision is a demonstration of 

impracticability under CAA section 

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

demonstrate attainment. 

(h) 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 

interim emissions 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 on or 

after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan is adequate for 

transportation conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(2) In NO2 nonattainment areas the 

interim emissions tests must be satisfied 

as required by § 93.119 for conformity 

determinations made when there is no 

approved motor vehicle emissions 

budget from an applicable 

implementation plan and no adequate 

motor vehicle emissions budget from a 

submitted control strategy 

implementation plan revision or 

maintenance plan. 

(i) PM 2.5 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 PM2.5

nonattainment and maintenance areas 

conformity determinations must include 

a demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) In PM2.5 nonattainment and 

maintenance areas the budget test must 

be satisfied as required by § 93.118 for 

conformity determinations made on or 

after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan is adequate for 

transportation conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(2) In PM2.5 nonattainment areas the 

interim emissions tests must be satisfied 

as required by § 93.119 for conformity 

determinations made if there is no 

approved motor vehicle emissions 

budget from an applicable 

implementation plan and no adequate 

motor vehicle emissions budget from a 

submitted control strategy 

implementation plan revision or 

maintenance plan. 

(j) Areas with limited maintenance 

plans. Notwithstanding the other 

paragraphs of this section, an area is not 

required to satisfy the regional 

emissions analysis for § 93.118 and/or 

§ 93.119 for a given pollutant and 

NAAQS, if the area has an adequate or 

approved limited maintenance plan for 

such pollutant and NAAQS. A limited 

maintenance plan would have to 

demonstrate that it would be 

unreasonable to expect that such an area 

would experience enough motor vehicle 

emissions growth for a NAAQS 

violation to occur. A conformity 

determination that meets other 

applicable criteria in Table 1 of 

paragraph (b) of this section is still 

required, including the hot-spot 

requirements for projects in CO and 

PM10 areas. 

(k) Areas with insignificant motor 

vehicle emissions. Notwithstanding the 

other paragraphs in this section, an area 

is not required to satisfy a regional 

emissions analysis for § 93.118 and/or 

§ 93.119 for a given pollutant/precursor 

and NAAQS, if EPA finds through the 

adequacy or approval process that a SIP 

demonstrates that regional motor 

vehicle emissions are an insignificant 

contributor to the air quality problem 

for that pollutant/precursor and 

NAAQS. The SIP would have to 

demonstrate that it would be 

unreasonable to expect that such an area 

would experience enough motor vehicle 

emissions growth in that pollutant/

precursor for a NAAQS violation to 

occur. Such a finding would be based 

on a number of factors, including the 

percentage of motor vehicle emissions 

in the context of the total SIP inventory, 

the current state of air quality as 

determined by monitoring data for that 

NAAQS, the absence of SIP motor 

vehicle control measures, and historical 

trends and future projections of the 

growth of motor vehicle emissions. A 

conformity determination that meets 

other applicable criteria in Table 1 of 

paragraph (b) of this section is still 

required, including regional emissions 

analyses for § 93.118 and/or § 93.119 for 

other pollutants/precursors and NAAQS 

that apply. Hot-spot requirements for 

projects in CO and PM10 areas in 

§ 93.116 must also be satisfied, unless 

EPA determines that the SIP also 

demonstrates that projects will not 

create new localized violations and/or 

increase the severity or number of 

existing violations of such NAAQS. If 

EPA subsequently finds that motor 

vehicle emissions of a given pollutant/

precursor are significant, this paragraph 

would no longer apply for future 

conformity determinations for that 

pollutant/precursor and NAAQS. 

(l) * * *

(2) Isolated rural nonattainment and 

maintenance areas are subject to the 

budget and/or interim emissions tests as 

described in paragraphs (c) through (k) 

of this section, with the following 

modifications:

* * * * *

■ 8. Section 93.110(a) is revised to read 

as follows:

§ 93.110 Criteria and procedures: Latest 

planning assumptions. 

(a) Except as provided in this 

paragraph, 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 the conformity analysis begins. 

The conformity determination must 

satisfy the requirements of paragraphs 

(b) through (f) of this section using the 

planning assumptions available at the 

time the conformity analysis begins as 

determined through the interagency 

consultation process required in 

§ 93.105(c)(1)(i). The ‘‘time the 

conformity analysis begins’’ for a 

transportation plan or TIP 

determination is the point at which the 

MPO or other designated agency begins 

to model the impact of the proposed 

transportation plan or TIP on travel and/

or emissions. New data that becomes 

available after an analysis begins is 

required to be used in the conformity 

determination only if a significant delay 

in the analysis has occurred, as 

determined through interagency 

consultation.

* * * * *

■ 9. Section 93.116 is revised to read as 

follows:

§ 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 

40078 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

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 during the time frame 

of the transportation plan (or regional 

emissions analysis) no new local 

violations will be created and the 

severity or number of existing violations 

will not be increased as a result of the 

project. The demonstration must be 

performed according to the consultation 

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

methodology requirements of § 93.123. 

(b) This paragraph applies for CO 

nonattainment areas as described in 

§ 93.109(f)(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 during the time frame 

of the transportation plan (or regional 

emissions analysis) 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.

■ 10. Section 93.117 is revised to read as 

follows:

§ 93.117 Criteria and procedures: 

Compliance with PM10 and PM2.5 control 

measures. 

The FHWA/FTA project must comply 

with any PM10 and PM2.5 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 and PM2.5

emissions from the construction 

activities and/or normal use and 

operation associated with the project) 

that are contained in the applicable 

implementation plan.

■ 11. Section 93.118 is amended by:

■ a. Revising the reference ‘‘§ 93.109(c) 

through (g)’’ in paragraph (a) to read 

‘‘§ 93.109(c) through (l)’’;

■ b. Revising paragraphs (b) introductory 

text and (b)(2)(iii), adding paragraph 

(b)(2)(iv), and removing the word ‘‘and’’

at the end of paragraph (b)(2)(ii);

■ c. Revising paragraphs (e)(1), (e)(2) and 

(e)(3); and

■ d. Adding new paragraph (f).

The revisions and additions read as 

follows:

§ 93.118 Criteria and procedures: Motor 

vehicle emissions budget.

* * * * *

(b) Consistency with the motor 

vehicle emissions budget(s) must be 

demonstrated for each year for which 

the applicable (and/or submitted) 

implementation plan specifically 

establishes motor vehicle emissions 

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

is within the timeframe of the 

transportation plan), 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:

* * * * *

(2) * * *

(iii) If an approved and/or submitted 

control strategy implementation plan 

has established motor vehicle emissions 

budgets for years in the time frame 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; and 

(iv) For any analysis years before the 

last year of the maintenance plan, 

emissions must be less than or equal to 

the motor vehicle emissions budget(s) 

established for the most recent prior 

year.

* * * * *

(e) * * *

(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, and the adequacy finding is 

effective. However, motor vehicle 

emissions budgets in submitted 

implementation plans do not supersede 

the motor vehicle emissions budgets in 

approved implementation plans for the 

same Clean Air Act requirement and the 

period of years addressed by the 

previously approved implementation 

plan, unless EPA specifies otherwise in 

its approval of a SIP. 

(2) If EPA has not declared an 

implementation plan submission’s 

motor vehicle emissions budget(s) 

adequate for transportation conformity 

purposes, the 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 previously approved 

implementation plans or 

implementation plan submissions with 

adequate motor vehicle emissions 

budgets, the interim emissions 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 after 

EPA had previously found the budget(s) 

adequate, 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.

* * * * *

(f) Adequacy review process for 

implementation plan submissions. EPA 

will use the procedure listed in 

paragraph (f)(1) or (f)(2) of this section 

to review the adequacy of an 

implementation plan submission: 

(1) When EPA reviews the adequacy 

of an implementation plan submission 

prior to EPA’s final action on the 

implementation plan, 

(i) EPA will notify the public through 

EPA’s website when EPA receives an 

implementation plan submission that 

will be reviewed for adequacy. 

(ii) The public will have a minimum 

of 30 days to comment on the adequacy 

of the implementation plan submission. 

If the complete implementation plan is 

not accessible electronically through the 

internet and a copy is requested within 

15 days of the date of the website notice, 

the comment period will be extended 

for 30 days from the date that a copy of 

the implementation plan is mailed. 

(iii) After the public comment period 

closes, EPA will inform the State in 

writing whether EPA has found the 

submission adequate or inadequate for 

use in transportation conformity, 

including response to any comments 

submitted directly and review of 

comments submitted through the State 

process, or EPA will include the 

determination of adequacy or 

inadequacy in a proposed or final action 

approving or disapproving the 

implementation plan under paragraph 

(f)(2)(iii) of this section. 

(iv) EPA will publish a Federal 

Register notice to inform the public of 

EPA’s finding. If EPA finds the 

submission adequate, the effective date 

of this finding will be 15 days from the 

date the notice is published as 

established in the Federal Register

notice, unless EPA is taking a final 

approval action on the SIP as described 

in paragraph (f)(2)(iii) of this section. 

(v) EPA will announce whether the 

implementation plan submission is 

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40079

adequate or inadequate for use in 

transportation conformity on EPA’s 

website. The website will also include 

EPA’s response to comments if any 

comments were received during the 

public comment period. 

(vi) If after EPA has found a 

submission adequate, EPA has cause to 

reconsider this finding, EPA will repeat 

actions described in paragraphs (f)(1)(i) 

through (v) or (f)(2) of this section 

unless EPA determines that there is no 

need for additional public comment 

given the deficiencies of the 

implementation plan submission. In all 

cases where EPA reverses its previous 

finding to a finding of inadequacy under 

paragraph (f)(1) of this section, such a 

finding will become effective 

immediately upon the date of EPA’s 

letter to the State. 

(vii) If after EPA has found a 

submission inadequate, EPA has cause 

to reconsider the adequacy of that 

budget, EPA will repeat actions 

described in paragraphs (f)(1)(i) through 

(v) or (f)(2) of this section. 

(2) When EPA reviews the adequacy 

of an implementation plan submission 

simultaneously with EPA’s approval or 

disapproval of the implementation plan, 

(i) EPA’s Federal Register notice of 

proposed or direct final rulemaking will 

serve to notify the public that EPA will 

be reviewing the implementation plan 

submission for adequacy. 

(ii) The publication of the notice of 

proposed rulemaking will start a public 

comment period of at least 30 days. 

(iii) EPA will indicate whether the 

implementation plan submission is 

adequate and thus can be used for 

conformity either in EPA’s final 

rulemaking or through the process 

described in paragraphs (f)(1)(iii) 

through (v) of this section. If EPA makes 

an adequacy finding through a final 

rulemaking that approves the 

implementation plan submission, such a 

finding will become effective upon the 

publication date of EPA’s approval in 

the Federal Register, or upon the 

effective date of EPA’s approval if such 

action is conducted through direct final 

rulemaking. EPA will respond to 

comments received directly and review 

comments submitted through the State 

process and include the response to 

comments in the applicable docket.

■ 12. Section 93.119 is amended by:

■ a. Revising the section heading and 

paragraphs (a) and (b);

■ b. Redesignating paragraphs (c), (d), 

(e), (f), (g) and (h) as paragraphs (d), (f), 

(g), (h), (i) and (j);

■ c. Adding new paragraphs (c) and (e);

■ d. Revising newly redesignated 

paragraphs (d) introductory text and 

(d)(1);

■ e. Revising newly redesignated 

paragraph (f)(5), removing the period at 

the end of newly redesignated paragraph 

(f)(6) and adding a semicolon in its place, 

and adding new paragraphs (f)(7) and 

(f)(8);

■ f. Revising newly redesignated 

paragraph (g);

■ g. In newly redesignated paragraphs 

(h) introductory text and (i) introductory 

text, revising the reference ‘‘paragraphs 

(b) and (c)’’ to read ‘‘paragraphs (b) 

through (e)’’; and,

■ h. In newly redesignated paragraph (j), 

revising the reference ‘‘paragraphs (b) 

and (c)’’ to read ‘‘paragraphs (b) through 

(e)’’. 

The revisions and additions read as 

follows:

§ 93.119 Criteria and procedures: Interim 

emissions in areas without motor vehicle 

emissions budgets. 

(a) The transportation plan, TIP, and 

project not from a conforming 

transportation plan and TIP must satisfy 

the interim emissions test(s) as 

described in § 93.109(c) through (l). This 

criterion applies to the net effect of the 

action (transportation plan, TIP, or 

project not from a conforming plan and 

TIP) on motor vehicle emissions from 

the entire transportation system. 

(b) Ozone areas. The requirements of 

this paragraph apply to all 1-hour ozone 

and 8-hour ozone NAAQS areas, except 

for certain requirements as indicated. 

This criterion may be met: 

(1) In moderate and above ozone 

nonattainment areas that are subject to 

the reasonable further progress 

requirements of CAA section 182(b)(1) if 

a regional emissions analysis that 

satisfies the requirements of § 93.122 

and paragraphs (g) through (j) of this 

section demonstrates that for each 

analysis year and for each of the 

pollutants described in paragraph (f) of 

this section: 

(i) 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 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are lower than: 

(A) 1990 emissions by any nonzero 

amount, in areas for the 1-hour ozone 

NAAQS as described in § 93.109(c); or 

(B) 2002 emissions by any nonzero 

amount, in areas for the 8-hour ozone 

NAAQS as described in § 93.109(d) and 

(e). 

(2) In 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) if 

a regional emissions analysis that 

satisfies the requirements of § 93.122 

and paragraphs (g) through (j) of this 

section demonstrates that for each 

analysis year and for each of the 

pollutants described in paragraph (f) of 

this section: 

(i) The emissions predicted in the 

‘‘Action’’ scenario are not greater 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 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are not greater than: 

(A) 1990 emissions, in areas for the 1-

hour ozone NAAQS as described in 

§ 93.109(c); or 

(B) 2002 emissions, in areas for the 8-

hour ozone NAAQS as described in 

§ 93.109(d) and (e). 

(c) CO areas. This criterion may be 

met: 

(1) In moderate areas with design 

value greater than 12.7 ppm and serious 

CO nonattainment areas that are subject 

to CAA section 187(a)(7) if a regional 

emissions analysis that satisfies the 

requirements of § 93.122 and paragraphs 

(g) through (j) of this section 

demonstrates that for each analysis year 

and for each of the pollutants described 

in paragraph (f) of this section: 

(i) 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 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are lower than 1990 

emissions by any nonzero amount. 

(2) In moderate areas with design 

value less than 12.7 ppm and not 

classified CO nonattainment areas if a 

regional emissions analysis that satisfies 

the requirements of § 93.122 and 

paragraphs (g) through (j) of this section 

demonstrates that for each analysis year 

and for each of the pollutants described 

in paragraph (f) of this section: 

(i) The emissions predicted in the 

‘‘Action’’ scenario are not greater 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 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are not greater than 

1990 emissions. 

(d) PM10 and NO2 areas. This criterion 

may be met in PM10 and NO2

nonattainment areas if a regional 

emissions analysis that satisfies the 

requirements of § 93.122 and paragraphs 

(g) through (j) of this section 

demonstrates that for each analysis year 

and for each of the pollutants described

40080 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 

in paragraph (f) of this section, one of 

the following requirements is met: 

(1) The emissions predicted in the 

‘‘Action’’ scenario are not greater 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

* * * * *

(e) PM2.5 areas. This criterion may be 

met in PM2.5 nonattainment areas if a 

regional emissions analysis that satisfies 

the requirements of § 93.122 and 

paragraphs (g) through (j) of this section 

demonstrates that for each analysis year 

and for each of the pollutants described 

in paragraph (f) of this section, one of 

the following requirements is met: 

(1) The emissions predicted in the 

‘‘Action’’ scenario are not greater 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 

2002 emissions. 

(f) * * * 

(5) VOC and/or NOx in PM10 areas if 

the EPA Regional Administrator or the 

director of the State air agency has made 

a finding that one or both of such 

precursor emissions from within the 

area are a significant contributor to the 

PM10 nonattainment problem and has so 

notified the MPO and DOT; 

(6) * * * 

(7) PM2.5 in PM2.5 areas; and 

(8) Reentrained road dust in PM2.5

areas only if the EPA Regional 

Administrator or the director of the 

State air agency has made a finding that 

emissions from reentrained road dust 

within the area are a significant 

contributor to the PM2.5 nonattainment 

problem and has so notified the MPO 

and DOT. 

(g) Analysis years. (1) 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 the transportation plan’s forecast 

period must also be an analysis year. 

(2) For areas using paragraphs 

(b)(2)(i), (c)(2)(i), (d)(1), and (e)(1) of this 

section, a regional emissions analysis 

that satisfies the requirements of 

§ 93.122 and paragraphs (g) through (j) 

of this section would not be required for 

analysis years in which the 

transportation projects and planning 

assumptions in the ‘‘Action’’ and 

‘‘Baseline’’ scenarios are exactly the 

same. In such a case, paragraph (a) of 

this section can be satisfied by 

documenting that the transportation 

projects and planning assumptions in 

both scenarios are exactly the same, and 

consequently, the emissions predicted 

in the ‘‘Action’’ scenario are not greater 

than the emissions predicted in the 

‘‘Baseline’’ scenario for such analysis 

years.

* * * * *

■ 13. Section 93.120 is amended by 

revising paragraph (a)(2) to read as 

follows:

§ 93.120 Consequences of control strategy 

implementation plan failures. 

(a) * * * 

(2) If EPA disapproves a submitted 

control strategy implementation plan 

revision without making a protective 

finding, only projects in the first three 

years of the currently conforming 

transportation plan and TIP may be 

found to conform. This means that 

beginning on the effective date of a 

disapproval without a protective 

finding, no transportation plan, TIP, or 

project not in the first three years of the 

currently conforming transportation 

plan and TIP may be found to conform 

until another control strategy 

implementation plan revision fulfilling 

the same CAA requirements is 

submitted, EPA finds its motor vehicle 

emissions budget(s) adequate pursuant 

to § 93.118 or approves the submission, 

and conformity to the implementation 

plan revision is determined.

* * * * *

■ 14. Section 93.121 is amended by:

■ a. Revising paragraph (a)(1), 

redesignating paragraph (a)(2) as (a)(3), 

adding a new paragraph (a)(2) and 

revising newly redesignated paragraph 

(a)(3);

■ b. Amending paragraph (b) 

introductory text by removing the 

reference ‘‘§ 93.109(g)’’ and adding in its 

place a reference for ‘‘§ 93.109(l)’’, and 

revising paragraph (b)(1); and

■ c. Adding new paragraph (c).

The revisions and additions read as 

follows:

§ 93.121 Requirements for adoption or 

approval of projects by other recipients of 

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

the Federal Transit Laws. 

(a) * * * 

(1) The project comes from the 

currently conforming transportation 

plan and TIP, and the project’s design 

concept and scope have not changed 

significantly from those which were 

included in the regional emissions 

analysis for that transportation plan and 

TIP; 

(2) The project is included in the 

regional emissions analysis for the 

currently conforming transportation 

plan and TIP conformity determination 

(even if the project is not strictly 

included in the transportation plan or 

TIP for the purpose of MPO project 

selection or endorsement) and the 

project’s design concept and scope have 

not changed significantly from those 

which were included in the regional 

emissions analysis; or 

(3) 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) * * * 

(1) The project was included in the 

regional emissions analysis supporting 

the most recent conformity 

determination that reflects the portion 

of the statewide transportation plan and 

statewide TIP which are in the 

nonattainment or maintenance area, and 

the project’s design concept and scope 

has not changed significantly; or

* * * * *

(c) Notwithstanding paragraphs (a) 

and (b) of this section, in nonattainment 

and maintenance areas subject to 

§ 93.109(j) or (k) for a given pollutant/

precursor and NAAQS, 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 for that pollutant/

precursor and NAAQS: 

(1) The project was included in the 

most recent conformity determination 

for the transportation plan and TIP and 

the project’s design concept and scope 

has not changed significantly; or 

(2) The project was included in the 

most recent conformity determination 

that reflects the portion of the statewide 

transportation plan and statewide TIP 

which are in the nonattainment or 

maintenance area, and the project’s 

design concept and scope has not 

changed significantly.

■ 15. Section 93.122 is amended by:

■ (a) Redesignating paragraphs (c), (d), 

and (e) as paragraphs (d), (e) and (g), 

respectively;

■ (b) Adding new paragraphs (c) and (f); 

and

■ (c) Revising newly redesignated 

paragraphs (g)(1) and (g)(2) introductory 

text, and adding new paragraph (g)(3). 

The revisions and additions read as 

follows:

Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40081

§ 93.122 Procedures for determining 

regional transportation-related emissions.

* * * * *

(c) Two-year grace period for regional 

emissions analysis requirements in 

certain ozone and CO areas. The 

requirements of paragraph (b) of this 

section apply to such areas or portions 

of such areas that have not previously 

been required to meet these 

requirements for any existing NAAQS 

two years from the following: 

(1) The effective date of EPA’s 

reclassification of an ozone or CO 

nonattainment area that has an 

urbanized area population greater than 

200,000 to serious or above; 

(2) The official notice by the Census 

Bureau that determines the urbanized 

area population of a serious or above 

ozone or CO nonattainment area to be 

greater than 200,000; or, 

(3) The effective date of EPA’s action 

that classifies a newly designated ozone 

or CO nonattainment area that has an 

urbanized area population greater than 

200,000 as serious or above.

* * * * *

(f) PM2.5 from construction-related 

fugitive dust. (1) For PM2.5 areas in 

which the implementation plan does 

not identify construction-related 

fugitive PM2.5 as a significant 

contributor to the nonattainment 

problem, the fugitive PM2.5 emissions 

associated with highway and transit 

project construction are not required to 

be considered in the regional emissions 

analysis. 

(2) In PM2.5 nonattainment and 

maintenance areas with implementation 

plans which identify constructionrelated fugitive PM2.5 as a significant 

contributor to the nonattainment 

problem, the regional PM2.5 emissions 

analysis shall consider constructionrelated fugitive PM2.5 and shall account 

for the level of construction activity, the 

fugitive PM2.5 control measures in the 

applicable implementation plan, and 

the dust-producing capacity of the 

proposed activities. 

(g) * * * 

(1) Conformity determinations for a 

new transportation plan and/or TIP may 

be demonstrated to satisfy the 

requirements of §§ 93.118 (‘‘Motor 

vehicle emissions budget’’) or 93.119 

(‘‘Interim emissions in areas without 

motor vehicle emissions budgets’’) 

without new regional emissions analysis 

if the previous regional emissions 

analysis also applies to the new plan 

and/or TIP. This requires a 

demonstration that: 

(i) The new plan and/or TIP contain 

all projects which must be started in the 

plan and TIP’s timeframes in order to 

achieve the highway and transit system 

envisioned by the transportation plan; 

(ii) All plan and 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 and/or TIP’s 

regional emissions at the time of the 

previous conformity determination; 

(iii) The design concept and scope of 

each regionally significant project in the 

new plan and/or TIP are not 

significantly different from that 

described in the previous transportation 

plan; and 

(iv) The previous regional emissions 

analysis is consistent with the 

requirements of §§ 93.118 (including 

that conformity to all currently 

applicable budgets is demonstrated) 

and/or 93.119, as applicable. 

(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, the previous 

regional emissions analysis is still 

consistent with the requirements of 

§ 93.118 (including that conformity to 

all currently applicable budgets is 

demonstrated) and/or § 93.119, as 

applicable, and if the project is either:

* * * * *

(3) A conformity determination that 

relies on paragraph (g) of this section 

does not satisfy the frequency 

requirements of § 93.104(b) or (c).

§ 93.124 [Amended]

■ 16. Section 93.124 is amended by 

removing paragraph (b) and 

redesignating paragraphs (c) through (e) 

as paragraphs (b) through (d).

§ 93.125 [Amended]

■ 17. In § 93.125, paragraph (a) is 

amended by revising the reference 

‘‘93.119 (‘‘Emissions reductions in areas 

without motor vehicle emissions 

budgets’’)’’ to read ‘‘93.119 (‘‘Interim 

emissions in areas without motor vehicle 

emissions budgets’’),’’ and paragraph (d) 

is amended by revising the phrase 

‘‘emission reduction requirements of 

§ 93.119’’ to read ‘‘interim emissions 

requirements of § 93.119.’’

§ 93.126 [Amended]

■ 18. In § 93.126, Table 2 is amended 

under the heading ‘‘Other’’ by revising 

the entry for ‘‘Emergency or hardship 

advance land acquisitions (23 CFR 

712.204(d))’’ to read ‘‘Emergency or 

hardship advance land acquisitions (23 

CFR 710.503).’’

[FR Doc. 04–14213 Filed 6–30–04; 8:45 am] 

BILLING CODE 6560–50–P