[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Proposed Rules]
[Pages 36112-36151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16581]



[[Page 36111]]


_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 51 and 93



Transportation Conformity Rule Amendments: Flexibility and 
Streamlining; Proposed Rule

Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / 
Proposed Rules

[[Page 36112]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5527-8]
RIN 2060-AG16


Transportation Conformity Rule Amendments: Flexibility and 
Streamlining

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing a more streamlined and flexible 
transportation conformity rule. The conformity rule requires that 
transportation plans, programs, and projects conform to state air 
quality implementation plans (SIPs) and establishes the criteria and 
procedures for determining whether or not they do. Conformity to a SIP 
means that transportation activities will not produce new air quality 
violations, worsen existing violations, or delay timely attainment of 
national ambient air quality standards.
    Since publication of the original rule in November 1993, EPA, the 
Department of Transportation (DOT), and state and local air and 
transportation officials have had considerable experience implementing 
the criteria and procedures in the rule. The changes proposed today are 
a result of this experience and are intended to make the conformity 
rule less complex and make it a more effective planning tool. The 
proposed changes will not result in any change in health and 
environmental benefits.
    This proposed rule would give state and local governments more 
authority in setting the performance measures used as tests of 
conformity and more discretion when a transportation plan does not 
conform to a SIP. The proposal would allow motor vehicle emissions 
budgets in a submitted SIP to be used to determine conformity instead 
of the ``build/no-build'' test. Modeling requirements would be tailored 
for different types of areas, and rural areas would be able to choose 
among several conformity tests.

DATES: Comments on this action must be submitted on or before September 
9, 1996. EPA will conduct one public hearing on this proposal beginning 
at 10 a.m. on Tuesday, August 6, 1996, in Washington, DC. As described 
in section XVI. of today's action, the hearing will continue throughout 
the day until all testimony has been presented.

ADDRESSES: Interested parties may submit written comments (in 
duplicate, if possible) to: Air and Radiation Docket and Information 
Center, U.S. Environmental Protection Agency, Attention: Docket No. A-
96-05, 401 M Street, SW., Washington, DC 20460. (Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped postcard.)
    The public hearing will be held in Washington, DC, at the Holiday 
Inn Capitol Hill, 550 C Street, SW., Washington, DC 20024, (202) 479-
4000.
    Materials relevant to this rulemaking are contained in Public 
Docket A-96-05 by EPA. The docket is located at the above EPA address 
in room M-1500 Waterside Mall (ground floor) and may be inspected from 
8 a.m. to 5:30 p.m., Monday through Friday, including all non-
government holidays.

FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Transportation and 
Market Incentives Group, Regional and State Programs Division, U.S. 
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 
48105, (313) 668-4441.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by the conformity rule are those 
which adopt, approve, or fund transportation plans, programs, or 
projects under the Intermodal Surface Transportation Efficiency Act or 
Federal Transit Laws. Regulated categories and entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Local government..........................  Local transportation and air
                                             quality agencies.          
State government..........................  State transportation and air
                                             quality agencies.          
Federal government........................  EPA and Department of       
                                             Transportation (Federal    
                                             Highway Administration and 
                                             Federal Transit            
                                             Administration).           
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by the conformity rule. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your organization is regulated by this action, you should 
carefully examine the applicability in Sec. 51.394/Sec. 93.102 of the 
conformity rule. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    The contents of this preamble are listed in the following outline:

I. Background on Transportation Conformity Rule
II. Applicability of the Budget Test and Emission Reduction Tests
III. Implementation of the Budget Test
IV. Non-federal Projects
V. Rural Nonattainment and Maintenance Areas
VI. Modeling Requirements
VII. Consequences of SIP Disapproval
VIII. Mismatch in SIP/Transportation Plan Timeframe
IX. Public Participation
X. Interagency Consultation
XI. Streamlining and Clarification
XII. TCM Flexibility
XIII. PM<INF>10 Hot Spots
XIV. Signalization Projects
XV. Conformity SIPs
XVI. Public Hearing
XVII. Administrative Requirements

I. Background on Transportation Conformity Rule

    Today's action proposes to amend the transportation conformity 
rule, ``Criteria and Procedures for Determining Conformity to State or 
Federal Implementation Plans of Transportation Plans, Programs, and 
Projects Funded or Approved Under Title 23 U.S.C. or the Federal 
Transit Act'' (58 FR 62188, November 24, 1993). Required under section 
176(c) of the Clean Air Act, as amended in 1990, the transportation 
conformity rule established the criteria and procedures by which the 
Federal Highway Administration (FHWA), the Federal Transit 
Administration (FTA), and metropolitan planning organizations (MPOs) 
determine the conformity of federally funded or approved highway and 
transit plans, programs, and projects to state implementation plans 
(SIPs). Conformity ensures that transportation plans, programs, and 
projects do not produce new air quality violations, worsen existing 
violations, or delay timely attainment of national ambient air quality 
standards (NAAQS). According to the Clean Air Act, federally supported 
activities must conform to the implementation plan's purpose of 
attaining and maintaining these standards.
    Since publication of the transportation conformity rule in November 
1993, EPA, the Department of Transportation (DOT), and state and local 
air and transportation officials have had considerable experience 
implementing the criteria and procedures in the rule. It is that mutual

[[Page 36113]]

experience which leads to today's proposal, which is the third of a 
series of three anticipated amendments to the transportation conformity 
rule. In each case, the amendments were needed to clarify ambiguities, 
correct errors, or make the conformity process more logical and 
feasible. The first set of amendments was published as an interim final 
rule on February 8, 1995 (60 FR 7449), and was finalized on August 7, 
1995 (60 FR 40098). The first set of amendments aligned the dates of 
conformity lapses (i.e., halting of new federally funded highway/
transit projects) due to SIP failures with the application of Clean Air 
Act highway sanctions for certain ozone areas and all areas with 
disapproved SIPs with a protective finding.
    The second set of amendments was proposed on August 29, 1995 (60 FR 
44790), and was finalized on November 14, 1995 (60 FR 57179). The 
second set of amendments allowed any transportation control measure 
(TCM) from an approved SIP to proceed during a conformity lapse; 
aligned the date of conformity lapses with the date of application of 
Clean Air Act highway sanctions for any failure to submit or submission 
of an incomplete control strategy SIP; extended the grace period before 
which areas must determine conformity to a submitted control strategy 
SIP; established a grace period before which transportation plan and 
program conformity must be determined in newly designated nonattainment 
areas; and corrected the nitrogen oxides (NO<INF>x) provisions of the 
transportation conformity rule consistent with the Clean Air Act and 
previous commitments made by EPA.
    Today's proposal would further amend the conformity rule in 
response to several issues raised by conformity implementers and other 
interested parties. EPA has worked closely with these conformity 
stakeholders to develop this proposal. In March 1995, the National 
Governors' Association (NGA) and the Environmental Council of States 
(ECOS) hosted a meeting of state DOTs, environmental agencies, EPA, and 
DOT to discuss the conformity rule. At this meeting, ECOS presented 
nine specific proposals to change the conformity rule. EPA and DOT 
committed to address all nine issues. EPA requested that state 
workgroups prepare white papers examining four issues in greater depth: 
the build/no- build test, non-federal projects, rural nonattainment 
areas, and adding non-exempt projects to the transportation plan and 
transportation improvement program (TIP) without full regional 
analysis. The remaining five issues are being addressed 
administratively.
    In April 1995, EPA hosted in Washington, DC a conformity 
stakeholder meeting of state DOTs, state environmental agencies, MPOs, 
environmentalists, industry groups, and other public interest groups. 
EPA substantially shaped the meeting's agenda around NGA's four white 
papers in order to provide groundwork for stakeholder discussion on 
these issues. On June 30, 1995, EPA distributed to conformity 
stakeholders draft regulatory language addressing the issues discussed 
at the April meeting. EPA received written comments and followed up 
with a series of four conference calls in July 1995 to solicit 
additional reaction to the June draft language. The draft language and 
comments are available in the public docket.
    On September 1, 1995, EPA distributed a letter to conformity 
stakeholders indicating what EPA and DOT intended to propose regarding 
key conformity issues. Today's proposal is based substantially on the 
approach described in the September letter.

II. Applicability of the Budget Test and Emission Reduction Tests

A. Description of Proposal

    The proposal would change the time periods during which the budget 
test and the ``emission reduction tests,'' commonly known as the 
``build/no-build test,'' are required. The proposal would eliminate the 
requirements for the emission reduction tests once a control strategy 
SIP or maintenance plan has been submitted to EPA and EPA has had 45 
days to review the adequacy of the SIP submission and its motor vehicle 
emissions budget(s). The budget test would replace the emission 
reduction tests 45 days after the control strategy SIP or maintenance 
plan was submitted to EPA (provided EPA has not found the submission 
inadequate), or earlier if EPA has found the submission adequate.
    Under the existing transportation conformity rule, both the 
emission reduction tests and the budget test are required until EPA's 
final approval of the control strategy SIP (or maintenance plan, where 
control strategy SIPs are not required). In addition, under the 
existing rule EPA has a review period of 90 days before the motor 
vehicle emissions budget in a newly submitted SIP may replace a 
previously submitted motor vehicle emissions budget.
    The proposal would streamline the conformity process by eliminating 
the existing transportation conformity rule's reliance on the 
classification system of ``Phase II interim period,'' ``transitional 
period,'' ``control strategy period,'' and ``maintenance period'' to 
determine whether the budget test and/or emission reduction tests 
apply.
    1. Applicability of Nitrogen Oxides (NO<INF>X) Emission Reduction 
Tests and Budget Tests in Ozone Areas
    Under the proposal, the budget test would replace the emission 
reduction tests only for those pollutants for which the submitted SIP 
establishes a motor vehicle emissions budget. For example, 15% SIPs for 
ozone areas are only required to address volatile organic compounds 
(VOC), and as a result, most will not address NO<INF>X or establish a 
NO<INF>X emissions budget. In these areas, the VOC emission reduction 
tests (``build/no-build'' and less-than-1990 tests) would no longer be 
required, but the NO<INF>X emission reduction tests would continue to 
be required until a NO<INF>X budget is established in a submitted SIP 
(unless the area had received a NO<INF>X waiver). In ozone 
nonattainment areas, Phase II attainment SIPs will establish NO<INF>X 
motor vehicle emissions budgets.
    A submitted 15% or Phase I attainment SIP would be considered to 
establish a NO<INF>X motor vehicle emissions budget if the submitted 
SIP contains an explicit NO<INF>X budget that is intended to act as a 
ceiling on future NO<INF>X emissions and if the NO<INF>X budget 
represents a net reduction from 1990 NO<INF>X emissions levels. A 
submitted SIP that achieves 15% or reasonable further progress 
reductions by substituting some NO<INF>X reductions for the required 
VOC reductions would establish a NO<INF>X motor vehicle emissions 
budget.
2. EPA 45-Day Review Period
    This proposal would allow conformity to be determined based on 
consistency with a submitted SIP's motor vehicle emissions budget(s), 
once the submitted SIP had been reviewed by EPA. (Of course, the 
submitted SIP cannot override the motor vehicle emissions budgets in an 
approved SIP for the years addressed by the approved SIP. See Section 
III.A.1.) The submitted SIP budget(s) would be used for conformity 
purposes beginning 45 days after the SIP's submission to EPA, provided 
EPA had not found the SIP and its budget(s) inadequate. The submitted 
SIP budget(s) would be used for determining conformity before EPA's 45-
day review period expires if EPA finds the SIP and its budget(s) 
adequate before expiration of such 45-day period.
    If EPA finds the submitted SIP and its budget(s) to be inadequate, 
they could not be used for conformity purposes, and conformity would 
have to be

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determined using the previously established SIP budget(s), or the 
emission reduction tests, if there are no previously established SIP 
budgets. If EPA finds the submitted SIP and its budget(s) to be 
inadequate after EPA's 45-day review period and after conformity had 
already been determined using the submitted SIP, the conformity 
determination would still be valid. However, that submitted SIP and 
budget(s) could not be used for future conformity determinations. 
Projects would still be considered to come from a conforming plan and 
TIP if they were included in the transportation plan and TIP that were 
found to conform to a budget that was later declared inadequate.
    In order for EPA to consider a submitted SIP's motor vehicle 
emissions budget(s) adequate for transportation conformity purposes, 
the submitted SIP must have been endorsed by the Governor (or his or 
her designee) and have been subject to a public hearing. The emissions 
budget(s) would have to be clearly identified and precisely quantified. 
Each emissions budget would have to be consistent with reasonable 
further progress, attainment, or maintenance, based upon a 
consideration of all emissions sources. The emissions budget(s) would 
have to be consistent with the area's emissions inventory and modeling 
assumptions for all sources and show a clear relationship between the 
control measures, the emissions reductions, and the resulting budgets. 
Each revision to a previously submitted SIP would have to identify the 
impacts on point, area, and mobile source emissions, as well as changes 
to any established safety margins. Changes to previously submitted 
budgets and the reasons for the changes would have to be explained and 
documented, including the basis for any changes related to emission 
factors or estimates of vehicle miles traveled (VMT), and what those 
changes imply for control strategies. If the revised emissions budget 
requires additional emission control strategies to demonstrate 
attainment or maintenance, such new strategies would have to be 
specified in the SIP submission. The SIP submission would have to 
contain a quantification of the emissions impacts of such new 
strategies and, at a minimum, commitments by appropriate agencies to a 
schedule for adoption and implementation, and the draft regulations or 
other relevant documents. Consultation among federal, state, and local 
agencies would have to occur and full documentation and justifications 
would have to be provided to EPA before the SIP is submitted. Any EPA 
concerns would have to be addressed before submission if the SIP and 
its budget(s) are to be found adequate for conformity purposes. If a 
SIP submission does not satisfy these conditions, EPA may find it 
inadequate for conformity purposes.
    EPA's review of the adequacy of a SIP submission for transportation 
conformity purposes is separate from EPA's completeness review. EPA may 
find a SIP incomplete after 45 days or after finding the SIP submission 
adequate for transportation conformity purposes. An incomplete SIP may 
still have appropriate motor vehicle emissions budgets for use in the 
conformity process, as recognized by EPA's use of ``protective 
findings'' under the November 1993 transportation conformity rule. If 
the SIP submission is both incomplete and inadequate for transportation 
conformity purposes, EPA would have to declare the submission 
inadequate for conformity purposes in addition to finding it 
incomplete.
3. Areas That Are Not Required to Submit Control Strategy SIPs
    Background. Under the existing transportation conformity rule, 
areas that are not required to submit control strategy SIPs have two 
options for demonstrating conformity. The first option is to satisfy 
the ``build/no-build'' and less-than-1990 emission reduction tests; the 
second is to submit a SIP that demonstrates attainment and use the 
budget test to determine conformity. In the latter option, such an area 
would be required under the existing rule to satisfy both of the 
emission reduction tests until the SIP is approved by EPA.
    Areas affected by proposal. Marginal and below ozone nonattainment 
areas, not classified carbon monoxide (CO) nonattainment areas, and 
moderate CO nonattainment areas with a design value of 12.7 ppm or less 
are not required by the Clean Air Act to submit control strategy SIPs. 
These classifications are listed in Secs. 51.464 and 93.136 of the 
existing transportation conformity rule.
    In addition, some moderate and above ozone nonattainment areas that 
are meeting the ozone NAAQS are not required to submit control strategy 
SIPs (see May 10, 1995, memorandum from John S. Seitz, Director of the 
Office of Air Quality Planning and Standards, to Regional Air Division 
Directors, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard'').
    Through today's action, EPA is proposing alternatives for 
demonstrating conformity for particular pollutants if areas are not 
required to submit control strategy SIPs for that pollutant. The first 
alternative is currently allowed under the existing transportation 
conformity rule and would continue to be available under this proposal 
with some additional flexibilities. The second and third options would 
provide new alternatives to these areas for demonstrating conformity. 
EPA would require these areas to satisfy only one of the alternatives 
described below in order to demonstrate conformity.
    Create a budget through the SIP process and use the budget test. As 
stated above, the existing transportation conformity rule and this 
proposal would allow these areas to submit a SIP that establishes a 
motor vehicle emissions budget consistent with attainment or 
maintenance. These areas would then be required to satisfy the budget 
test for each emissions budget. However, unlike the existing rule, this 
proposal would allow the SIP budget to be used after the SIP has been 
submitted to EPA and before EPA approval. The emission reduction tests 
would not be required once a SIP is submitted and EPA's 45-day review 
period has occurred (as described above).
    Default budget for clean data areas. This proposal would provide 
another alternative for demonstrating conformity in areas that are not 
required to submit control strategy SIPs, and have monitoring data 
indicating attainment of the standard (``clean data''), but have not 
yet submitted a maintenance plan. These clean data areas could 
demonstrate conformity using the budget test instead of the emission 
reduction tests, using as a ``motor vehicle emissions budget'' the 
motor vehicle emissions levels in the most recent year of clean data. 
The motor vehicle emissions levels in the most recent year of clean 
data would be determined by the state air quality agency through the 
interagency consultation process. This default ``budget'' would not 
have to be submitted as a SIP revision and would not require special 
public participation in addition to that otherwise required by the 
transportation conformity rule. If a clean data area wishes to use a 
budget other than emissions levels in the most recent year of clean 
data, the area could submit that budget through the SIP process as 
described above.
    Emission reduction test flexibility. Today's action would allow 
areas that are not required to submit control strategy SIPs another 
alternative when demonstrating conformity. If these areas

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do not have a SIP with a motor vehicle emissions budget, this proposal 
would allow these areas a choice of emission reduction tests. 
Specifically, this proposal would allow them to demonstrate conformity 
by either satisfying the build/no-build test or demonstrating that 
annual motor vehicle emissions will not be greater than 1990 levels 
(i.e., the ``1990 test'').
    Under the existing transportation conformity rule, these areas are 
required to satisfy both the build/no-build and less-than-1990 emission 
reduction tests in the absence of a budget. For the reasons explained 
below, this proposal would offer CO and ozone areas not required to 
submit control strategy SIPs the same flexibility currently available 
to PM<INF>10 (particles with an aerodynamic diameter of less than or 
equal to a nominal 10 micrometers) and nitrogen dioxide (NO<INF>2) 
nonattainment areas, which are required to satisfy either the build/no-
build emission reduction test or ensure that annual motor vehicle 
emissions will not be greater than 1990 levels.

B. Rationale

1. Elimination of the Emission Reduction Tests
    A broad consensus of conformity implementers and interested parties 
have advised EPA that the ``build/no-build test'' has limited value in 
demonstrating contribution to emission reductions, or serving as the 
primary criterion on which conformity is based. Because of the 
limitations of currently available modeling tools, the build/no-build 
test may yield only slight differences in emissions, well within the 
range of modeling error. The parties have indicated that when motor 
vehicle emissions budget(s) have been established in submitted SIPs, 
they provide a more relevant basis for conformity determinations.
    EPA agrees with this assessment by the transportation conformity 
stakeholders. EPA originally created the ``build/no build test'' and 
less-than-1990 tests (required by Secs. 51.436-51.446 of the November 
1993 transportation conformity rule) in order to implement the emission 
reduction requirements of Clean Air Act section 176(c)(3)(A)(iii) (for 
ozone and CO nonattainment areas), and to ensure that transportation 
activities would not increase the frequency or severity of existing 
violations (for PM<INF>10 and NO<INF>2 nonattainment areas), as 
required by Clean Air Act section 176(c)(1)(B)(ii). In light of the 
stakeholders' input, EPA now believes that consistency with the motor 
vehicle emissions budget(s) in a submitted control strategy SIP or 
maintenance plan is sufficient to satisfy these Clean Air Act 
requirements.
    Clean Air Act section 176(c)(3)(A)(iii) requires transportation 
plans, TIPs, and projects in ozone and CO nonattainment areas to 
contribute to annual emissions reductions consistent with sections 
182(b)(1) and 187(a)(7). EPA believes that consistency with the motor 
vehicle emissions budgets in a submitted ozone or CO attainment SIP 
satisfies Clean Air Act section 176(c)(3)(A)(iii), because these 
budgets are intended to represent the emissions reductions necessary to 
attain the ozone or CO standard, as required by sections 182(b)(1) and 
187(a)(7). Similarly, consistency with a submitted maintenance plan's 
emissions budgets fulfills the requirement to contribute to emissions 
reductions necessary to attain the standard, because the maintenance 
plan's emissions budgets represent emission levels consistent with 
attainment.
    EPA carefully considered whether the motor vehicle emissions 
budget(s) established by an ozone area's submitted 15% SIP or post-1996 
reasonable further progress SIP are sufficient to satisfy the 
requirements of Clean Air Act section 176(c)(3)(a)(iii), because such 
budgets do not necessarily represent the full emissions reductions 
necessary to attain the ozone standard. However, the motor vehicle 
emissions budgets in these SIPs do represent VOC emission reductions 
from 1990 levels. As a result, EPA believes that consistency with such 
a VOC budget is sufficient to satisfy the requirement of Clean Air Act 
section 176(c)(3)(A)(iii) for contribution to necessary emissions 
reductions.
    EPA considered not allowing a submitted 15% SIP or post-1996 
reasonable further progress SIP to establish a NO<INF>X motor vehicle 
emissions budget that would be used for determining conformity instead 
of the NO<INF>X emission reduction tests. The Clean Air Act does not 
require such SIPs to address NO<INF>X, so a NO<INF>X emissions budget 
in such a SIP could be unconstrained and would not necessarily be 
sufficient to satisfy section 176(c)(3)(A)(iii)'s requirement to 
contribute to annual emissions reductions. However, if a state 
establishes a NO<INF>X emissions budget that it intends to constrain 
future emissions and that does represent emissions reductions from 1990 
levels, EPA now believes this budget would be a better basis for 
determining conformity than the ``build/no-build test.'' As a result, 
EPA is proposing that a 15% SIP or post-1996 reasonable further 
progress SIP (Phase I attainment SIP) that addresses NO<INF>X would be 
considered to establish a NO<INF>X emissions budget for the purposes of 
transportation conformity only if that budget represented net emission 
reductions from 1990. Whether or not a SIP establishes a NO<INF>X motor 
vehicle emissions budget should be determined in consultation with the 
SIP agency and the EPA Region.
    For PM<INF>10 and NO<INF>2 nonattainment areas, the ``build/no-
build test'' and the less-than-1990 test were intended to satisfy the 
general definition of conformity in section 176(c)(1)(B)(ii) that 
transportation activities not increase the frequency or severity of any 
existing violation. EPA believes that consistency with the motor 
vehicle emissions budget(s) established in the submitted attainment SIP 
or maintenance plan ensures that existing violations will not be 
worsened by transportation projects, because these budgets represent 
emissions levels that are consistent with attainment of the standards.
2. Adequacy of Submitted (But Not Approved) Budgets
    The November 1993 transportation conformity rule requires emission 
reduction tests as well as budget tests until EPA approves the 
submitted SIP, because EPA believed it could not be certain that 
submitted emissions budgets are consistent with Clean Air Act 
requirements for reasonable further progress, attainment, and 
maintenance until EPA approves the SIP. In contrast, this proposal 
would allow the motor vehicle emissions budgets established by 
submitted SIPs to be the basis of conformity determinations. (Of 
course, the submitted SIP cannot override the motor vehicle emissions 
budgets in an approved SIP for the years addressed by the approved SIP. 
See Section III.A.1.)
    EPA now believes this is appropriate because a submitted SIP is a 
product of a state's interagency consultation process, which encourages 
discussion among state and local air quality and transportation 
agencies, and is ultimately endorsed by the Governor (or his/her 
designee). During the SIP process, states also gather information and 
comment from environmental groups and other interested parties at 
public hearings. EPA believes that these processes would ensure the 
credibility of a submitted SIP (and its motor vehicle emissions 
budgets) for the purposes of transportation conformity especially where 
the only alternative conformity test is the emission reduction tests. 
Given the limitations to the usefulness of the emission reduction 
tests, a submitted SIP's motor vehicle

[[Page 36116]]

emissions budgets are likely to be at least as good a basis for making 
conformity determinations, even if they are not yet approved by EPA.
    EPA's proposed 45-day review period for newly submitted SIPs is 
intended to prevent conformity from being based on motor vehicle 
emissions budgets that are clearly not consistent with attainment, 
maintenance, or reasonable further progress. If EPA was not consulted, 
given sufficient information, or EPA's concerns were not satisfied 
prior to SIP submission sufficient for EPA to determine that the motor 
vehicle emissions budgets are adequate for conformity purposes during 
this 45-day review period, EPA could declare the motor vehicle 
emissions budgets inadequate and prevent their use for conformity 
purposes. In addition, if EPA finds the motor vehicle emissions budgets 
inadequate even after the 45-day review period, further conformity 
determinations may not be based on those budgets.
    EPA considered a range of review periods after which submitted 
motor vehicle emissions budgets could replace emission reduction tests 
for determining conformity. Under the November 1993 transportation 
conformity rule, EPA has used a 90-day review period before a newly 
submitted SIP budget could replace a previously submitted budget. Many 
conformity stakeholders suggested a 30-day review period. EPA is 
proposing a 45-day review period as a compromise to balance the 
conflicting goals of using submitted SIP budgets as quickly as possible 
and preventing transportation investments from being made based on 
budgets that are not consistent with attainment, maintenance, or 
reasonable further progress. If budgets are found inadequate after 
conformity has already been determined, future plans and TIPs would 
have to offset the emissions from grandfathered projects that may have 
been inappropriately allowed under the inadequate budgets. This 
disruption could be avoided by allowing EPA enough time initially to 
determine the adequacy of budgets and prevent the use of inadequate 
budgets.
    Regardless of the 45-day review period, EPA cannot ultimately 
ensure that a submitted SIP's motor vehicle emissions budget is 
consistent with reasonable further progress, attainment, or 
maintenance--and thus adequate to fulfill the conformity requirements 
of Clean Air Act section 176(c)--until EPA fully approves the SIP 
through notice-and-comment rulemaking. As a result, the proposal 
provides that reliance on a submitted SIP's motor vehicle emissions 
budgets 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 budgets would cause or 
contribute to any new violation of the relevant standard(s); increase 
the frequency or severity of any existing violation of the relevant 
standard(s); or delay timely attainment of the relevant standards or 
any required interim emissions reductions or other milestones. (This 
provision clarifies that, in the absence of EPA approval of the 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.)
3. Areas Not Required to Submit Control Strategy SIPs
    EPA has received public comment to extend certain flexibilities to 
areas that are not required to submit control strategy SIPs. The 
existing transportation conformity rule requires these areas to either 
satisfy the ``build/no-build'' and less-than-1990 emission reduction 
tests or submit a control strategy SIP or maintenance plan and satisfy 
the budget test. Today's action proposes additional flexibilities for 
areas that are not required to submit control strategy SIPs, including 
marginal and below ozone nonattainment areas, not classified CO 
nonattainment areas, moderate CO nonattainment areas with a design 
value of 12.7 ppm or less, and some moderate and above ozone areas that 
are meeting the ozone standard. Please refer to section II.A.3. for 
additional background material.
    Create a budget through the SIP process and use the budget test. 
Although the areas discussed in this section are not required by the 
Clean Air Act to submit control strategy SIPs, these areas could choose 
to submit a control strategy SIP or maintenance plan (which contains a 
motor vehicle emissions budget) and demonstrate conformity by using the 
budget test. The existing transportation conformity rule requires 
consistency with the SIP's motor vehicle emissions budget as stipulated 
in Clean Air Act section 176(c)(2)(A). This option is available both in 
the existing transportation conformity rule and this proposal.
    Default budget for clean data areas. This proposal would allow 
areas with clean monitoring data but no submitted or approved budget to 
determine conformity using the budget test, with the motor vehicle 
emissions levels in the most recent year of clean data serving as the 
``budget.'' In order for data to be considered ``clean,'' it must meet 
EPA's requirements and guidance for acceptable monitoring. EPA is also 
proposing this second option because many areas would prefer to 
determine conformity using a budget test rather than the emission 
reduction tests, but are nevertheless unwilling to devote resources to 
creating a motor vehicle emissions budget through the SIP process. The 
motor vehicle emissions in the most recent year with clean data is an 
adequate ``default budget'' that can be determined without using the 
formal SIP process. This level of motor vehicle emissions does not 
automatically demonstrate attainment, because it does not consider the 
levels of emissions from other sources. However, these areas are not 
required by the Clean Air Act to submit attainment demonstrations. 
Furthermore, this level of motor vehicle emissions does produce clean 
data. Therefore, EPA believes that requiring consistency with the level 
of motor vehicle emissions in the most recent year of clean data is a 
reasonable test, and one that is likely to be more meaningful than the 
emission reduction test (for the reasons discussed earlier).
    Emission reduction test flexibility. This proposed alternative 
would allow areas that are not required to submit control strategy SIPs 
that do not choose the other two options in this section to satisfy 
either the build/no-build test or demonstrate that annual motor vehicle 
emissions will not be greater than 1990 levels (i.e., the ``1990 
test''), provided these areas do not have an approved budget in a 
control strategy SIP or maintenance plan. EPA is proposing this 
flexibility because conformity stakeholders have indicated that, like 
PM<INF>10 and NO<INF>2 areas, the ozone and CO classifications listed 
in Secs. 51.464 and 93.136 of the transportation conformity rule and 
moderate and above ozone nonattainment areas that are affected by the 
May 10, 1995, EPA memorandum (see section II.A.3. for more information) 
are not subject to sections 182(b)(1) and 187(a)(7) of the Clean Air 
Act.
    The existing transportation conformity rule requires that areas 
without motor vehicle emissions budgets must satisfy both the build/no-
build and less-than-1990 emission reduction tests in order to 
demonstrate conformity. EPA originally created these tests in order to 
implement the emission reduction provisions of Clean Air Act section 
176(c)(3)(A)(iii), which requires ozone and CO areas to contribute to 
annual emission reductions consistent with sections 182(b)(1) and 
187(a)(7). However, sections 182(b)(1) and 187(a)(7) only apply to 
moderate and above ozone nonattainment areas and

[[Page 36117]]

CO nonattainment areas that are moderate greater than 12.7 ppm.
    PM<INF>10 and NO<INF>2 areas are similarly not required to satisfy 
the annual emission reduction provisions of Clean Air Act section 
176(c)(3)(A)(iii). The existing transportation conformity rule and this 
proposal require PM<INF>10 and NO<INF>2 areas to satisfy either the 
build/no-build or 1990 test in order to demonstrate conformity.
    EPA originally required both the build/no-build and less-than-1990 
tests for all ozone and CO areas in order to ensure that transportation 
planning does not produce new air quality violations, worsen existing 
violations, or delay timely attainment of the NAAQS, as required by 
Clean Air Act section 176(c)(1)(B). However, EPA now believes that, for 
these areas which were never subject to the emission reduction mandate 
of section 176(c)(3)(A)(iii), either the build/no-build test or the 
1990 test is sufficient to satisfy the requirements of the Clean Air 
Act.

III. Implementation of the Budget Test

A. Which Budgets Apply?

1. Approved SIPs Versus Submitted SIPs
    Years that are directly addressed by the approved SIP. Motor 
vehicle emissions budgets in an approved SIP (i.e., the applicable 
implementation plan) must always be used for demonstrating satisfaction 
of the budget test for those years in the timeframe of the 
transportation plan that are addressed by the approved SIP. That is, if 
the approved SIP establishes a motor vehicle emissions budget for a 
year in the timeframe of the transportation plan, consistency with that 
budget must be demonstrated for that year. A submitted SIP cannot 
override the motor vehicle emissions budgets in an approved SIP for the 
years addressed by the approved SIP.
    Clean Air Act section 176(c) specifically requires conformity to 
approved implementation plans. The provisions of an implementation plan 
that EPA has approved under Clean Air Act section 110 are enforceable 
and cannot be changed on the basis of a submission. As a result, 
although some conformity implementers and interested parties requested 
that they be permitted to replace approved SIP budgets with submitted 
SIP budgets, EPA believes that this cannot be legally allowed. In 
addition, approved SIP budgets have been subject to full technical 
review and public comment and should not be replaced by budgets that 
have not yet been fully analyzed and reviewed.
    Years that are not directly addressed by the approved SIP. However, 
this proposal would allow a submitted SIP's motor vehicle emissions 
budgets to be used instead of the approved SIP's budgets for those 
years not directly addressed by the approved SIP. For example, for a 
serious ozone nonattainment area, the approved 15% SIP's VOC budget 
would have to be used to demonstrate the budget test for 1996, but the 
submitted attainment SIP's budget would be used to demonstrate the 
budget test for the attainment year (1999).
    Similarly, this proposal would allow a submitted maintenance plan's 
motor vehicle emissions budgets to be used for the years after the 
attainment year, instead of continuing to use the approved attainment 
year budget for those subsequent years. Under the existing 
transportation conformity rule, a submitted maintenance plan's motor 
vehicle emissions budget(s) may not be used for transportation 
conformity purposes until the maintenance plan has been approved.
    EPA believes this flexibility is appropriate because any given 
approved SIP is only intended to address a certain period of time. In 
general, attainment SIPs address only the period through the attainment 
year, and maintenance plans address at a minimum a ten-year period. EPA 
believes that the Clean Air Act's reference to conformity to ``approved 
implementation plans'' applies to the years which the approved SIP 
addresses, and that this language should not prohibit using as the 
relevant test of conformity subsequent SIP submissions that address 
later years. EPA believes that the submitted maintenance plan's motor 
vehicle emissions budgets are more relevant to the years after the 
attainment year than the attainment year budget in the approved 
attainment SIP. Similarly, a submitted attainment SIP's budget is more 
relevant for the attainment year than an approved post-1996 SIP budget. 
EPA had previously required use of the last budget in the approved SIP 
for all subsequent years only because there was no other budget against 
which to determine conformity. Once such a budget is submitted, it 
provides the most relevant basis for testing conformity.
    If no SIP is submitted that addresses the years after the approved 
SIP, the approved SIP's budget(s) would continue to apply for the 
future years in the timeframe of the transportation plan.
    Changes to approved SIPs. This proposal would not alter the fact 
that proposed changes to an approved SIP cannot be used for the 
purposes of transportation conformity until those changes are approved. 
For example, if an area submits a proposed revision to a SIP with an 
attainment year budget to replace the approved attainment SIP, that SIP 
submission cannot be used until it is approved by EPA.
2. Multiple SIP Submissions
    How soon can a newly submitted SIP replace a previously submitted 
SIP? Under this proposal, the most recent SIP submissions would replace 
other prior SIP submissions that have not yet been approved. If an area 
submits a SIP to revise motor vehicle emissions budgets in a SIP that 
has not yet been approved, the most recent SIP submission would be used 
for demonstrating the budget test beginning 45 days after submission to 
EPA (provided EPA has not found the submission inadequate), or earlier, 
if EPA has found the submission to be adequate.
    Under the existing transportation conformity rule, a newly 
submitted SIP is not permitted to replace a complete SIP submission for 
90 days. If EPA found the newly submitted SIP complete in less than 90 
days, either SIP submission could be used for conformity determinations 
made during the first 90 days after SIP submission. This proposal would 
require the most recent SIP submission to be used for conformity 
purposes after 45 days (if it has not been found inadequate), or as 
soon as it has been found adequate, if this occurs in less than 45 days 
after submission to EPA.
    EPA is proposing this change for several reasons. First, due to 
conformity stakeholder suggestions that submitted SIPs should be used 
sooner for conformity purposes, EPA is proposing to shorten the 
existing transportation conformity rule's 90-day grace period to 45 
days. In addition, EPA is interested in streamlining the transportation 
conformity rule and reducing ambiguity in its implementation. There has 
been substantial confusion in implementation of the existing 
transportation conformity rule regarding which submitted SIP's budgets 
should be used for conformity purposes, and at which times. EPA 
believes that it is simpler and truer to the spirit of conformity to 
require the most recently submitted SIP (that has undergone 45-day EPA 
review) to be used for determining conformity.
    EPA believes that the simplicity gained from this change outweighs 
any potential limitation to the flexibility of areas to choose among 
SIP submissions in the first few weeks after submission. In many 
instances, SIP submissions intended to replace previous SIP submissions 
were either inspired by conformity considerations or represent a more 
accurate basis for conformity. As

[[Page 36118]]

a result, most areas would not choose to use the previous SIP 
submission even if given the opportunity.
    In addition, the protection EPA originally intended the 90-day 
grace period to provide is under the state's control. EPA did not 
originally require newly submitted SIPs to be used in the first 90 
days, because EPA did not want conformity determinations that were 
underway at the time of the SIP submission to be disrupted. However, 
this protection is not necessary in the conformity rule itself, because 
the state controls when it submits a SIP, and the interagency 
consultation process gives state and local agencies an opportunity to 
coordinate conformity determinations and SIP submissions to avoid 
disruption of the conformity process. EPA believes that the ambiguity 
regarding which SIP submission is used for conformity is more 
problematic than the remote possibility that a SIP submission would 
interfere with a conformity determination that was underway.
    When should different submitted SIPs be used? When a series of 
control strategy SIPs have been submitted to fulfill different Clean 
Air Act requirements for a particular pollutant, the budget test would 
be demonstrated using each relevant submitted SIP that is adequate for 
conformity purposes. For example, the proposal would require the 
submitted post-1996 reasonable further progress SIP's motor vehicle 
emissions budgets to be used for demonstrating the budget test for 
milestone years, and would require the submitted attainment 
demonstration's budget(s) to be used for demonstrating the budget test 
for the attainment year. SIP budget(s) that address the latest future 
year would apply for all subsequent years in the timeframe of the 
transportation plan.

B. Control Strategy SIPs and Maintenance Plans That Do Not Establish 
Motor Vehicle Emissions Budgets

    This proposal would clarify that the emissions budget test must be 
satisfied only for those pollutants and pollutant precursors for which 
a motor vehicle emissions budget is established. Normally, a control 
strategy SIP or maintenance plan would by its nature include a motor 
vehicle emissions budget for each pollutant and pollutant precursor for 
which the area was designated nonattainment. These budgets are created 
by the control strategy SIP or maintenance plan even if they are not 
clearly identified, and failure to clearly identify a motor vehicle 
emissions budget does not relieve the requirement to satisfy the budget 
test. However, as explained further below, there are some cases in 
which a SIP could specifically provide that no motor vehicle emissions 
budget was established for transportation conformity purposes, and in 
such cases, the budget test would not have to be satisfied for that 
pollutant or precursor.
    Certain nonclassifiable ozone areas have the option to submit a 
``limited maintenance plan,'' which would not establish motor vehicle 
emissions budgets. According to the November 16, 1994, memorandum from 
Sally Shaver, Director of EPA's Air Quality Strategies and Standards 
Division, to EPA Regional Air Division Directors, entitled ``Limited 
Maintenance Plan Option for Nonclassifiable Ozone Nonattainment 
Areas,'' nonclassifiable ozone areas whose design values are at or 
below 0.106 ppm (85% of exceedance levels of the ozone standard) at the 
time of redesignation may choose to submit a less rigorous maintenance 
plan than required for other areas. This ``limited maintenance plan'' 
would not be required to project emissions over the maintenance period, 
and as a result, no motor vehicle emissions budget would be 
established. There are similar policies for CO and PM<INF>10 areas that 
may also result in no motor vehicle emissions budgets being 
established.
    In other cases, the control strategy SIP or maintenance plan could 
explicitly demonstrate that motor vehicle emissions are not a 
significant contributor to the nonattainment problem, and the SIP could 
explicitly state that it is not establishing a motor vehicle emissions 
budget for transportation conformity purposes. This could occur, for 
example, in CO and PM<INF>10 areas that are dominated by stationary 
sources. In order for EPA to approve or find adequate for conformity 
purposes a SIP that makes a claim of insignificance, the SIP would have 
to demonstrate that it would be unreasonable to expect that such an 
area would experience enough motor vehicle emissions growth for a 
violation to occur. Such a demonstration would have to be based on a 
number of factors, including the percentage of the inventory comprised 
by motor vehicle-related emissions currently and in the future, how 
close the monitoring data is to the standard, the absence of SIP motor 
vehicle control measures, historical trends in the growth of motor 
vehicle emissions and VMT, and projections of motor vehicle emissions 
and VMT.
    If EPA's 45-day review period expires without EPA finding the SIP 
either adequate or inadequate for conformity purposes, the submitted 
SIP's claim of insignificance may be used to justify not demonstrating 
satisfaction of the budget test (unless or until EPA finds the SIP 
inadequate).
    When a control strategy SIP or maintenance plan does not establish 
motor vehicle emissions budgets, no regional emissions tests would be 
required to be satisfied. That is, neither the emissions budget test 
nor the emission reduction tests would be required to be satisfied.

C. For Which Years Would the Budget Test Be Demonstrated?

    This proposal would clarify (without changing the substance of) the 
existing transportation conformity rule's requirements regarding the 
years for which the budget test must be demonstrated. The proposal 
would explicitly require the budget test to be demonstrated for each 
year for which the SIP establishes a motor vehicle emissions budget. 
For example, the attainment SIP generally establishes a budget for the 
attainment year, and the 15% SIP establishes a VOC budget for 1996. 
SIPs may explicitly include motor vehicle emissions budgets for other 
years not specifically required to be addressed by the Clean Air Act. 
For example, an attainment SIP or a maintenance plan may address more 
years than required by the Clean Air Act and explicitly include motor 
vehicle emissions budgets for those years. In such cases, the budget 
test would have to be demonstrated for the years for which a budget was 
specifically established.
    The budget test must be demonstrated for the last year of the 
maintenance plan and any other years for which the maintenance plan 
establishes motor vehicle emissions budgets. An area may choose to 
explicitly establish motor vehicle emissions budgets for years in the 
timeframe of the maintenance plan other than the last year. In such 
cases, compliance with the budget test would have to be demonstrated 
for those years. Some maintenance plans may include specific motor 
vehicle emissions projections for some or all years in the timeframe of 
the maintenance plan, without intending that such projections operate 
as limitations on emissions. The budget test would not be required to 
be demonstrated for these years unless it was the intent of the 
maintenance plan to establish a budget for these years. Such issues 
should be addressed when developing the control strategy SIP or 
maintenance plan. For control strategy SIPs and maintenance plans that 
have already been submitted, the state's intent regarding the use of 
motor vehicle emissions budgets may be clarified

[[Page 36119]]

through the interagency consultation process.
    In addition to the years for which the SIP establishes a motor 
vehicle emissions budget, the budget test must be demonstrated for the 
last year of the transportation plan's forecast period. If there are 
more than ten years between the years for which the SIP specifically 
establishes motor vehicle emissions budgets, the budget test must also 
be demonstrated for some intermediate years so that the budget test is 
demonstrated at ten-year (or shorter) intervals.
    Regional emissions analysis. Satisfaction of the budget test 
requires comparison of the motor vehicle emissions budget with regional 
emissions predicted for a given year. A regional emissions analysis 
must be performed for each pollutant and precursor for the last year of 
the transportation plan's forecast period and the attainment year (if 
it is in the timeframe of the transportation plan). For the other years 
for which the budget test is required to be demonstrated, the estimate 
of regional emissions does not necessarily need to be based on a 
regional emissions analysis performed for that specific year; the 
estimate of regional emissions may be based on an interpolation between 
the years for which the regional emissions analysis was performed. 
However, the years for which the regional emissions analysis is 
performed must be no more than ten years apart.

D. Maintenance Plans

    The proposal would require that if the maintenance plan does not 
establish motor vehicle emissions budgets for any years other than the 
last year of the maintenance plan, the demonstration of consistency 
with the motor vehicle emissions budget(s) must be accompanied by a 
qualitative finding that there are no factors which would cause or 
contribute to a new violation or exacerbate an existing violation in 
the years before the last year of the maintenance plan.
    Because the maintenance plan is required by the Clean Air Act to 
demonstrate maintenance of the standards over a 10-year period, general 
consistency between the latest planning assumptions and the maintenance 
plan's assumptions and projections is a basis for finding that there 
will not be new or worsened violations during that period. Each 
maintenance plan will have different assumptions and projections, so 
the specific basis for an area's qualitative finding will need to be 
determined through the interagency consultation process. The 
qualitative finding would be contained in the documentation that 
demonstrates that the budget test has been satisfied.
    EPA believes 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 believes that requiring a qualitative finding is preferable to 
requiring maintenance plans to establish motor vehicle emissions 
budgets for specific years. Although maintenance plans contain 
projections for intermediate years that could be used as motor vehicle 
emissions budgets, EPA believes that the years for which budgets are 
established should be decided by the state. EPA is willing to allow 
states to establish budgets only for the last year of the maintenance 
plan, provided conformity determinations are accompanied by a 
qualitative finding addressing the intermediate years. Alternatively, 
states could choose to establish motor vehicle emissions budgets for 
intermediate years in the maintenance plan, which would then be used to 
determine conformity.

IV. Non-federal Projects

A. Description of Proposal

    This proposal would allow regionally significant transportation 
projects that are funded or approved by a recipient of federal funds 
designated under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. 
Chapter 53) which do not rely at all on any FHWA/FTA funding or 
approvals (i.e., ``non-federal projects'') to be adopted or approved 
during a transportation plan/TIP conformity lapse, provided the project 
was included in the regional emissions analysis supporting the most 
recent transportation plan and TIP conformity determination. Also, the 
project's design concept and scope could not have changed significantly 
from that included in the previous emissions analysis.
    The existing transportation conformity rule requires a currently 
conforming transportation plan and TIP to be in place at the time a 
recipient of federal funds adopts or approves a regionally significant 
non-federal project. As a result, no regionally significant non-federal 
projects can be adopted or approved during a transportation plan/TIP 
conformity lapse.
    Under both this proposal and the existing transportation conformity 
rule, adoption or approval of non-federal projects that are not 
regionally significant is not subject to any transportation conformity 
requirements. In addition, under both this proposal and the existing 
transportation conformity rule, there is a provision for regionally 
significant non-federal projects to be added to the existing 
transportation plan and TIP's regional emissions analysis, if the 
transportation plan and TIP are currently conforming. That is, if a 
regionally significant non-federal project has not previously been 
included in the regional emissions analysis supporting the 
transportation plan and TIP conformity determinations, another regional 
emissions analysis could be performed including the transportation plan 
and TIP projects and the additional regionally significant non-federal 
project. If this analysis demonstrates that the currently conforming 
transportation plan and TIP would still conform if the non-federal 
project were implemented, the non-federal project could be adopted or 
approved.
    Some commenters have suggested that if certain non-federal projects 
are to be permitted to be adopted or approved during a transportation 
conformity lapse as EPA is currently proposing, each such project 
should be approved by the Governor. This provision would provide 
greater assurance that the emissions consequences of proceeding with 
projects during a conformity lapse are consciously accepted. However, 
EPA is not proposing this limitation at this time because such a 
limitation is not explicitly required by the Clean Air Act, and it is 
not clear which state and local government officials should have the 
authority to adopt or approve non-federal projects during a conformity 
lapse. EPA is interested in receiving comment on this subject.

B. Rationale

    EPA is proposing to allow some regionally significant non-federal 
projects to be adopted or approved during a conformity lapse in 
response to comments from conformity implementers. These comments 
stated that state and local governments should have the discretion to 
accept the emissions consequences of projects that are under their 
control to fund and approve, even when there was not a conforming 
transportation plan and TIP. Future transportation plans and TIPs are 
required to consider the emissions from regionally significant non-
federal

[[Page 36120]]

projects, so any necessary offsets would ultimately be achieved.
    EPA believes this proposal is consistent with the requirements of 
Clean Air Act section 176(c). Section 176(c)(2)(C) requires 
transportation projects to ``come from a conforming plan and TIP.'' EPA 
has interpreted this in the existing conformity rule to mean that a 
conforming transportation plan and TIP must be in place at the time of 
project adoption or approval, and that the project must be included in 
the transportation plan and TIP (or regional emissions analysis 
supporting the conformity determination for the transportation plan and 
TIP). EPA now believes that because non-federal projects are not 
federally funded or approved, it is not necessary for a conforming 
transportation plan and TIP to be in place at the time of project 
adoption or approval. The transportation plan and TIP are not relevant 
as a funding mechanism for non-federal projects. The crucial 
requirement for non-federal projects is previous inclusion in the 
regional emissions analysis supporting a conforming transportation plan 
and TIP. That is, the area had previously considered the emissions of 
the non-federal project and concluded that they could be accommodated 
in the planned transportation network without adversely affecting air 
quality.
    The option provided in section 176(c)(2)(D) for new projects that 
were not previously included in a transportation plan/TIP or supporting 
regional emissions analysis to demonstrate conformity cannot apply 
during a transportation plan/TIP conformity lapse, because it requires 
a demonstration that ``conforming transportation plans and TIPs'' would 
still conform when the emissions of the new project are considered. 
Without a conforming transportation plan and TIP in place, this cannot 
be demonstrated.
    This proposal would require that a regionally significant non-
federal project be included in the regional emissions analysis 
supporting the most recent transportation plan and TIP conformity 
determinations, rather than any previous conformity determination. This 
is because each regional emissions analysis must include all regionally 
significant transportation projects in the timeframe of the 
transportation plan. Therefore, even if there is no current activity on 
a particular non-federal project at the time of the most recent 
transportation plan/TIP conformity determination, it still will have 
been included in the regional emissions analysis. If a non-federal 
project were included in the regional emissions analysis from an older 
transportation plan/TIP conformity determination and not from the most 
recent, this would indicate that the project is no longer expected to 
occur in the timeframe of the transportation plan and TIP. As a result, 
it could no longer be assumed that implementation of the project could 
be accommodated with no adverse air quality impact.
    EPA has received comment opposing the adoption or approval of non-
federal projects during a transportation conformity lapse. Commenters 
believe that building new projects during a time when a conforming 
transportation plan and TIP has not been developed would only increase 
the difficulty of plan/TIP development in the future. However, as 
described above, EPA believes that this proposal is consistent with the 
Clean Air Act. In addition, the limitation that regionally significant 
non-federal projects must have been part of the most recent prior 
regional emissions analysis supporting the most recent conforming 
transportation plan and TIP ensures that the emissions consequences of 
the projects have been considered, and the decision to proceed with 
such projects during a conformity lapse could be made with full 
knowledge of the possible emissions implications. These non-federal 
projects would then have been considered as part of the transportation 
planning process, and because these projects are not able to avoid the 
scrutiny of the metropolitan planning process during a conformity 
lapse, there would not be unequal requirements that would provide an 
incentive to shift the funding of projects from federal to non-federal 
sources.
    EPA has also received comment that any non-federal project, whether 
or not it has previously been included in a regional emissions analysis 
supporting a transportation plan/TIP conformity determination, should 
be allowed to proceed during a transportation plan/TIP conformity 
lapse. However, EPA continues to believe, as described in the preamble 
to the November 24, 1993, transportation conformity rule, that Clean 
Air Act section 176(c)(2)(C)'s requirements for ``transportation 
projects'' refer to any highway or transit projects, not just those 
that are federally funded or approved. Thus, EPA believes that 
regionally significant non-federal projects must have been considered 
in a previously conforming emissions analysis in order to be adopted or 
approved.

V. Rural Nonattainment and Maintenance Areas

A. Description of Proposal

    Isolated rural nonattainment and maintenance areas with submitted 
or approved control strategy SIPs or maintenance plans would be 
allowed, under this proposal, to choose among several tests for 
demonstrating conformity for years after the time period addressed by 
the SIP (e.g., years after the attainment year or the last year of the 
maintenance plan).
    These areas could either (1) demonstrate consistency with the most 
recent motor vehicle emissions budget(s), as normally required; (2) 
satisfy the emission reduction tests (``build/no-build test'' and/or 
less-than-1990 test, depending upon classification); or (3) demonstrate 
through air quality dispersion modeling that the FHWA/FTA project, in 
combination with all other regionally significant projects expected in 
the area in the timeframe of the statewide transportation plan, 
satisfies the general definition of conformity in Clean Air Act section 
176(c)(1) (i.e., the project will not cause or contribute to any new 
violations; increase the frequency or severity of any existing 
violation; or delay timely attainment or required interim emission 
reductions).
    The choice among these conformity tests and the methodology for air 
quality dispersion modeling would be determined through the interagency 
consultation process and reflect the consensus of the state and local 
air and transportation agencies and the project sponsor. EPA and DOT 
would also have to be consulted through the usual interagency 
consultation process.
    Isolated rural areas would be defined as nonattainment and 
maintenance areas (or portions thereof) that do not have a metropolitan 
transportation plan or TIP and whose projects are not part of the 
emissions analysis of any MPO's transportation plan or TIP. This would 
not include ``donut'' areas that are outside the metropolitan planning 
boundary and inside the nonattainment/maintenance area boundary, 
because these projects must be considered in the context of the MPO's 
transportation plan and TIP, even if the MPO does not specifically 
include them in the transportation plan/TIP or the MPO's own regional 
emissions analysis.
    Because air quality dispersion modeling for ozone is often complex 
and resource-intensive, EPA does not expect that this particular option 
will be viable for isolated rural ozone nonattainment and maintenance 
areas. However, this is a more realistic option

[[Page 36121]]

for such CO and PM<INF>10 nonattainment and maintenance areas and is 
being considered at the request of several commenters.
    This proposal differs from the existing transportation conformity 
rule by offering several options for demonstrating conformity in years 
after the time period addressed by the SIP. The existing transportation 
conformity rule would require the motor vehicle emissions budget 
established for the most recent prior year to be used for the purpose 
of demonstrating transportation conformity for all subsequent years in 
the timeframe of the transportation plan.

B. Rationale

    In response to comments from those implementing conformity as well 
as from other interested parties, EPA is proposing flexibility for 
isolated rural nonattainment and maintenance areas. The general issue 
of conformity for years outside the timeframe of the SIP is explained 
below in section VIII., ``Mismatch in SIP/Transportation Plan 
Timeframe.'' EPA is here proposing flexibility for isolated rural 
nonattainment and maintenance areas, and not for other areas, because 
isolated rural areas face unique challenges in addressing this issue.
    Isolated rural areas generally do not have a metropolitan 
transportation planning process that could serve as a forum for 
identifying and addressing long-term growth issues in years not 
addressed by the SIP. In addition, regionally significant, federally 
funded or approved projects usually occur infrequently in isolated 
rural areas. Conformity demonstrations for such areas as required by 
the existing conformity rule would place the burden of long-term 
planning on a few or even a single transportation project.
    EPA believes this places an inappropriately large burden on 
sponsors of such federally funded or approved transportation projects. 
Although conformity is intended to assure long-term planning, EPA 
believes it is appropriate to impose conformity requirements involving 
less rigorous long-term planning in areas where comprehensive planning 
processes including land use and other issues do not otherwise exist or 
are not otherwise required.
    Some conformity implementers suggested that the flexibility for 
isolated rural areas should apply for ``donut'' areas that are outside 
MPO planning boundaries but within urbanized nonattainment areas. EPA 
does not believe this is appropriate because donut areas do not face 
the same challenges as truly isolated rural areas. Conformity 
determinations by the MPO must consider motor vehicle emissions from 
all projects in the nonattainment or maintenance area, including 
emissions from projects in the donut area. Thus, there is a planning 
process that in some manner addresses the donut area. The Intermodal 
Surface Transportation Efficiency Act (ISTEA) envisioned that in most 
cases, the MPO planning boundary would be consistent with the 
nonattainment area boundary. To the extent that conformity poses a 
burden on the donut area because the area does not have long-term 
planning capabilities, arrangements could be made with the adjacent 
MPO.
    EPA believes that providing some flexibility for the years not 
addressed by the SIP is consistent with the Clean Air Act (see section 
VIII. below). The Clean Air Act requirement for consistency with the 
SIP's emissions reduction goals could be construed to apply only for 
the years that an individual SIP revision addresses. The time period 
later than that addressed by SIPs is in some ways analogous to the time 
period before SIPs are developed, and as such the emission reduction 
tests (``build/no-build'' and less-than-1990 tests) may also be 
appropriate for the time period after that addressed by SIPs. Air 
dispersion modeling that directly demonstrates satisfaction of the 
general definition of conformity is clearly also consistent with Clean 
Air Act section 176(c).
    EPA is proposing that the choice of conformity tests for isolated 
rural areas for years not addressed by a SIP should be made with the 
agreement of relevant state and local agencies. EPA believes this is 
necessary because MPOs are authorized by the Clean Air Act to determine 
conformity and there are no MPOs in isolated rural areas; thus, there 
is no single state or local agency with authority for determining 
conformity. Various state and local agencies may have differing 
perspectives on the practicality and benefits of the different 
conformity tests. As a result, EPA believes the method for 
demonstrating conformity should be a consensual decision by all 
relevant state and local agencies, so that all relevant actors in an 
area can weigh the advantages and disadvantages of each method of 
demonstrating conformity.
    EPA also believes that the methodology for performing air quality 
dispersion modeling should have the agreement of all relevant state and 
local agencies. The air agency traditionally has responsibility for 
performing air quality dispersion modeling, but some other agency may 
take responsibility for such modeling with respect to a given project 
for the purposes of transportation conformity in rural areas. 
Therefore, EPA believes that all agencies should agree on the 
methodology to be used.
    EPA considered requiring EPA approval of the modeling methodology 
used in isolated rural areas, because air quality dispersion modeling 
used in SIPs is traditionally governed by EPA guidance and regulations. 
If air quality dispersion modeling that is used to demonstrate 
conformity with the purpose of the SIP is based on different 
assumptions than the SIP itself used, the determination of conformity 
could be suspect. However, commenters convincingly argued that 
requiring concurrence of the state air agency accomplishes the goal of 
assuring consistency with the SIP's air quality dispersion modeling 
methodology, and that further concurrence by EPA would be an 
unnecessary administrative burden for isolated rural areas.
    The option to demonstrate conformity using air quality dispersion 
modeling in certain cases was specifically requested by conformity 
implementers. Because EPA believes using air quality dispersion 
modeling for conformity demonstrations for years not addressed by SIPs 
would be consistent with Clean Air Act section 176(c) requirements (see 
above), EPA is proposing this additional flexibility for all isolated 
rural areas. Areas for which air quality dispersion modeling is too 
resource-intensive may of course choose one of the other methods of 
demonstrating conformity.
    EPA considered allowing isolated rural areas to include non-federal 
projects in either the ``build'' or ``no-build'' case when performing 
the ``build/no-build test,'' at the discretion of state and local air 
and transportation agencies. Conformity implementers and interested 
parties had noted that because regionally significant federally funded 
or approved transportation projects occur relatively infrequently in 
isolated rural areas, considering (and potentially offsetting) the 
emissions impacts of non-federal projects posed an unfair burden on the 
few federal projects. However, EPA believes that despite the differing 
practical considerations for urban and rural areas, there is no legally 
defensible distinction between what constitutes a contribution to 
emissions reductions in rural vs. urban areas. Because EPA believes 
that the ``build/no-build'' test demonstrates contribution to emissions 
reductions only when new non-federal projects are included in the 
``build'' case, EPA is not proposing to alter the build/no-build test's 
treatment of non-federal projects in rural areas.

[[Page 36122]]

    Some conformity implementers suggested to EPA that conformity in 
isolated rural areas be demonstrated using a project-level ``build/no-
build test.'' Although it is true that isolated rural areas do not have 
local transportation plans and TIPs as referred to in Clean Air Act 
section 176(c)(2) (C) and (D), EPA believes that it is the intent of 
the Clean Air Act for the regional emissions impacts of transportation 
projects to be considered in the context of other transportation 
projects in the nonattainment or maintenance area. Furthermore, EPA 
questions whether it is possible for areas concerned with regional 
pollutants to determine whether a project will cause or contribute to 
new violations or exacerbate existing violations without considering 
other transportation projects planned for the area. Therefore, EPA is 
not proposing the option to use a project-level analysis for the build/
no-build test in rural areas.

VI. Modeling Requirements

A. Network Modeling Requirements

1. Deadline for Use of Network Models
    This proposal would require that serious CO and serious, severe, 
and extreme ozone areas use network models to support conformity 
determinations by January 1, 1997. This requirement would apply only to 
those metropolitan planning areas with an urbanized area population 
over 200,000. Areas that are already using accepted network modeling 
practices would be required to continue using them for conformity 
analyses performed before January 1, 1997. Areas would continue to be 
required to have a consultation process to select regional models and 
assumptions.
    The existing transportation conformity rule required that all 
serious CO and serious and above ozone areas use network modeling for 
conformity analyses by January 1, 1995. This proposal extends the 
deadline to January 1, 1997. EPA received several comments related to 
the ambitious nature of the 1995 deadline, and it has become 
increasingly apparent that the original deadline is creating 
difficulties for several areas that have been unable to comply by that 
date. Based on comments received, EPA has determined that January 1, 
1997, would be a reasonable extension of the deadline. EPA believes 
that this deadline would allow areas experiencing difficulties to 
improve and implement their network models, while requiring that areas 
currently using network modeling continue to do so prior to that date.
    In serious CO areas and serious and above ozone areas, conformity 
determinations may be made after January 1, 1997, based on regional 
emissions analysis that does not use network modeling only if that 
regional emissions analysis was performed in support of the proposed 
conformity determination before January 1, 1997. It is not necessary 
for the MPO or DOT to complete its determination process before January 
1, 1997, if the regional emissions analysis supporting the 
determination was completed before January 1, 1997. It is also 
permissible for a proposed transportation plan or TIP, and/or the 
regional emissions analysis associated with it, to be modified to a 
reasonable degree after January 1, 1997, as a result of the public 
participation process.
    This interpretation of the deadline for modeling improvements is 
described in a December 30, 1994, letter from Philip A. Lorang, EPA's 
Director of Emission Planning and Strategies Division, to Cynthia 
Burbank, FHWA's Environmental Analysis Division Chief, and Samuel 
Zimmerman, FTA's Director of the Office of Planning.
2. Areas Subject to Deadline for Use of Network Models
    This proposal would limit the requirement to use network modeling 
to metropolitan planning areas with an urbanized area population over 
200,000, whereas the existing rule's requirements apply to all 
nonattainment areas in these classifications, regardless of population 
or urbanization. The proposed limitation results from a general concern 
that the modeling requirements are overly burdensome for small and 
rural areas within serious ozone nonattainment areas, such as Martha's 
Vineyard Island, Massachusetts. EPA considered but is not proposing a 
three-tiered scenario in which an area's modeling requirements would 
have varying specificity based on its population and whether it was 
urban or rural. Commenters believed that such a detailed proposal would 
unnecessarily increase the rule's complexity. As a result, EPA decided 
to specify requirements only for those serious, severe and extreme 
areas with an urbanized area population over 200,000. The 200,000 
population level was chosen because it is also the population level 
used to delineate transportation management areas (TMAs). EPA believes 
that these limitations would ensure that smaller areas no longer are 
required to use unnecessarily stringent network modeling procedures and 
methods.
    EPA received a comment that suggested a specific, two-part process 
for network model improvements in serious CO and serious and above 
ozone nonattainment areas. The first part recommended an expanded, 
tiered set of deadlines based on nonattainment status, population, and 
growth rate, with added flexibility through a waiver provision if 
mobile sources were clearly not a factor in an area's nonattainment 
problem. The second part suggested that the MPO prepare a strategic 
plan for the area's modeling improvements. The MPO would also be 
responsible for encouraging public participation in this process and 
making available for public comment the documentation of conformity 
determinations and information relevant to improving the regional 
analysis systems.
    EPA decided not to propose this approach for several reasons. 
First, the tiered deadline concept would expand the modeling 
requirements to areas not currently affected under the existing rule. 
EPA believes that these modeling requirements are not necessary in all 
nonattainment areas and that this concept would further increase the 
rule's complexity. Second, although EPA agrees with the importance of 
strategic planning in modeling improvements, the Agency believes that 
the existing interagency consultation process provides areas with the 
necessary flexibility in planning for modeling improvements.
3. Content of Modeling Requirements: Request for Comment
    In today's proposal, EPA is proposing regulatory text that would 
amend the requirements addressing the characteristics of network 
models. Under Sec. 51.452(b)(93.130(b)) of the November 1993 conformity 
rule, network-based models used in serious and above CO and ozone areas 
for conformity analyses are required to possess eleven specific 
modeling attributes. EPA originally developed these eleven attributes 
in consultation with conformity stakeholders and with the understanding 
that they represented modeling procedures that are currently available 
and in practice. EPA continues to believe that these modeling 
attributes would encourage improved network-based modeling.
    However, stakeholders have since suggested that the modeling 
requirements in the existing rule create too much complexity and 
rigidity in the conformity rule. As a result, EPA is proposing 
regulatory text today that would remove these eleven modeling 
attributes from the rule and replace them with modeling guidance

[[Page 36123]]

periodically issued by EPA and DOT. Today's proposal is described below 
as Option 1.
    Since several stakeholders have expressed concern over the primary 
option EPA is proposing today (Option 1), two alternative options are 
also described below. All three of the options described below would 
apply to nonattainment areas with urbanized population over 200,000, as 
described above. EPA requests comment on all of these options, and 
depending on the public comment received, EPA may finalize one of these 
alternative approaches, instead of the primary option EPA is proposing 
today.
    EPA believes that the conformity rule would still be consistent 
with the letter and intent of Clean Air Act section 176(c) if any of 
the proposed changes to the modeling requirements are adopted. Since 
the statute does not specifically address modeling requirements, EPA 
believes that so long as the modeling requirements continue to ensure 
that conformity determinations are based on sound quantitative 
analysis, EPA has the discretion to determine appropriate methods for 
implementing those requirements.
    Option 1: Address Network Modeling Attributes in Guidance. EPA 
proposes today that the specific attributes of network models that are 
required under the existing transportation conformity rule be removed 
from the regulatory text and instead be addressed in guidance 
documentation. EPA believes that this proposal will simplify the 
conformity rule and ensure that areas will be able to choose the 
modeling procedures that best match their current modeling and air 
quality planning needs, resource constraints, and technical expertise 
capability.
    In order to ensure that appropriate modeling tools are employed, 
EPA and DOT will periodically issue modeling guidance comprised of 
technical documentation and other references describing available 
modeling procedures. This guidance is likely to be a combination of 
existing and new documents or references to technical information taken 
from a variety of sources. Many of the detailed attributes required 
under the existing transportation conformity rule will be referenced in 
this guidance. By issuing technical guidance documents on a regular 
basis, EPA and DOT will be able to communicate new modeling practices 
and encourage continuous improvement over time.
    EPA is aware that removing the regulatory requirements governing 
network model performance may be perceived by some to be an endorsement 
of less rigorous modeling practices. However, EPA and DOT remain 
committed to developing and encouraging improved transportation models 
and to ensuring that areas continue to employ good modeling practices. 
Today's proposal is intended as a streamlining measure, not a 
relaxation of standards for acceptable modeling. EPA believes that 
guidance regarding available modeling techniques will facilitate model 
improvement at least as well as including specific modeling 
requirements in the conformity rule, while responding to local needs 
for flexibility. The agencies believe that agreement regarding 
appropriate modeling techniques and improvements for each area should 
be an important focus of the interagency consultation process as 
currently required by Sec. 51.402 (c)(1)(i) and (c)(6) and Sec. 93.105 
(c)(1)(i) and (c)(6).
    Option 2: Retain Network Model Performance Requirements in Existing 
Conformity Rule. This option would retain all of the eleven 
characteristics of network models that are required in the November 
1993 conformity rule. For example, network models in these areas would 
continue to be required to meet performance-based standards such as 
capacity-sensitive assignment and reasonable agreement between travel 
times used in trip distribution and resulting from assignment. EPA 
continues to believe that these modeling attributes reflect the current 
consensus in the transportation and air quality planning professions on 
minimum acceptable modeling practices.
    Option 3: Streamline Existing Modeling Attributes and Address 
Additional Attributes in Guidance. This option would streamline the 
existing conformity rule, but retain certain requirements that provide 
for minimum acceptable model performance.
    The streamlined requirements would be as follows: (1) Network-based 
models must be validated against observed peak and off-peak ground 
counts for a base year that is not more than 10 years prior to the date 
of the conformity determination; (2) land use, population, employment, 
and other network-based modeling inputs must be based on the best 
available information and must be appropriate to the validation base 
year; (3) peak and off-peak travel demand and travel times must be 
provided, and a capacity-sensitive assignment methodology must be used; 
(4) the model(s) must use and document a logical correspondence between 
the assumed scenario of land development and use and the future 
transportation system for which emissions are being estimated; and (5) 
network-based models must be reasonably sensitive to trip-making 
changes due to changes in the cost, travel time, capacity, and quality 
of all travel choices, if the necessary information is available.
    EPA would address the remaining attributes in modeling guidance 
that would be jointly issued and regularly updated by EPA and DOT. 
Conformity stakeholders would be involved in the development of this 
modeling guidance to encourage a wide exchange of ideas about current 
and available modeling practices. EPA believes that this process itself 
would ensure that the modeling guidance is a useful, effective tool in 
informing areas about available modeling improvements.

B. Adding Non-exempt Projects to the Plan/TIP Without Regional Analysis

1. Description of Proposal
    This proposal would, under some circumstances, allow a 
transportation plan and TIP to be amended to include additional non-
exempt projects without a full-scale regional emissions analysis based 
on network modeling. The alternate emissions analysis procedure would 
require the concurrence of the federal, state, and local air and 
transportation agencies. This flexibility would not become effective 
until EPA and DOT have completed their review and evaluation of 
alternate procedures that are suggested during the public comment 
period (see ``Request for Information for Guidance,'' below) and made 
this documentation publicly available. This proposal would still 
require a conformity determination for the plan/TIP amendment, 
including public participation, interagency consultation, and other 
relevant requirements of the transportation conformity rule. This 
proposal would only change the rigor of the supporting regional 
emissions analysis.
    Under the existing rule, every plan/TIP and plan/TIP amendment 
requires a conformity determination based on a regional emissions 
analysis that meets the requirements of Sec. 51.452/Sec. 93.130. The 
regional emissions analysis, which includes projects in the plan/TIP 
and all other regionally significant projects in the nonattainment or 
maintenance area, is used to demonstrate that the budget test and/or 
emission reduction tests are satisfied. Under Sec. 51.452, certain 
areas are required to use network modeling to perform this regional 
emissions analysis.
    This proposal would allow less rigorous analysis to demonstrate 
that the plan/TIP as amended satisfies the budget test and/or emission 
reduction tests. Subsequent plan/TIP conformity

[[Page 36124]]

determinations based on full regional emissions analysis would, of 
course, include the recently added projects, because regional emissions 
analysis must include all regionally significant projects that are 
planned or underway. Any plan/TIP conformity determination based on 
less rigorous analysis would not be considered a conformity 
determination for the purposes of Sec. 51.400/Sec. 93.104, ``Frequency 
of Conformity Determinations,'' which require that conformity 
determinations be made no less frequently than every three years. The 
less rigorous analysis would not provide a complete consideration of 
projects in the transportation plan and TIP using the latest emissions 
projections and assumptions. The transportation plan and TIP would 
therefore have to be found to conform based on a full-scale regional 
emissions analysis (including network modeling, where required) at 
least every three years.
2. Rationale
    EPA is proposing this change in response to stakeholder requests 
for this flexibility. Some stakeholders commented that it may be costly 
and resource-intensive to perform a full-scale regional emissions 
analysis to add a regionally significant project to a transportation 
plan and TIP. These stakeholders proposed that the conformity rule 
allow areas the flexibility to establish alternative procedures for 
regional emissions analysis that would demonstrate that an additional 
project, when considered with emissions projected for the conforming 
transportation plan and TIP, does not cause the plan/TIP to exceed the 
motor vehicle emissions budget and/or fail to satisfy the emission 
reduction tests. Stakeholders supporting this flexibility suggested 
that it is necessary only in extraordinary circumstances and would not 
be used on a routine basis. Other stakeholders expressed concern that 
such flexibility could be used to advance significant projects without 
the full scrutiny of the conformity process.
    EPA agrees that there may be limited instances where the impact of 
regionally significant non-exempt projects on emissions from the 
currently conforming transportation plan and TIP could be determined 
without full-scale regional analysis, and that exceptional 
circumstances may arise where such flexibility is appropriate. However, 
this flexibility is to be exercised as an exception and not on a 
regular basis.
    EPA would allow this flexibility to be used only after a review and 
evaluation of types of alternate procedures has been documented, 
because of the potential for this flexibility to undermine the 
integrity of the conformity process if improperly used. Conformity's 
purpose is to consider the long-term impacts of projects and to make 
transportation planning decisions within the context of all proposed 
projects, instead of on a project-by-project basis. In almost all 
cases, regional emissions impacts cannot be determined on a project-by-
project basis or without considering the aggregate of projects in an 
area and the interactions among them. The conformity provisions were in 
part a response to the difficulty of assessing air quality impacts on a 
project-by-project basis. As a result, it is not clear what type of 
limited analysis would be appropriate and under what circumstances. 
Areas will need guidance to address these issues. This guidance will be 
provided in the review, evaluation, and documentation of alternate 
procedures that are suggested during the public comment period, through 
periodic updates of reasonable and available measures, and through the 
interagency consultation process.
    Stakeholders proposed that the federal, state, and local 
transportation and air agencies should concur on each use of this 
flexibility. EPA agrees with such a concurrence requirement since there 
are not well-established, existing alternatives and because the 
transportation planning process and the conformity process should not 
be compromised if there is not agreement among all of the agencies that 
the existing circumstances warrant the use of this flexibility. As 
described in the conformity rule's consultation requirements, conflicts 
among state agencies or between state agencies and an MPO shall be 
escalated to the Governor if they cannot be resolved by the heads of 
the involved agencies.
    EPA foresees instances where use of this flexibility would not be 
appropriate. For example, it would not be appropriate if planning 
assumptions have changed, or if other information indicates that the 
regional emissions analysis supporting the currently conforming 
transportation plan and TIP is not adequate to determine that the 
budget test and/or the emission reduction tests would be satisfied. It 
would also be inappropriate if the transportation plan and TIP 
amendment is not only adding projects, but deleting other projects and 
changing implementation dates in order to remain fiscally constrained. 
In this case, the plan/TIP amendment's scope would be too broad to 
justify a limited emissions analysis.
3. Request for Information for Guidance
    EPA and DOT recognize that there may be some alternate procedures 
for determining the impact projects would have on regional 
transportation-related emissions that are more expeditious and less 
costly than a network-based analysis. As a result, EPA and DOT are 
requesting suggestions for procedures to add non-exempt projects to the 
plan/TIP without a complete network-based analysis. If documentation is 
available for these procedures, please provide it if possible.
    Reasonable methods or approaches may be included in guidance. 
However, EPA and DOT believe that the flexibility for non-exempt 
projects (as described above) should not be finalized if reasonable 
alternate approaches have not been identified for determining the 
regional emissions impacts from individual transportation projects. 
Therefore, this flexibility would not be offered unless EPA and DOT 
receive comment that identifies such alternate methods or approaches.
    Some stakeholders commented about the resources needed to perform a 
full-scale regional emissions analysis to add a regionally significant 
project. EPA and DOT are therefore requesting information in the 
following areas: (1) How often the need arises to add non-exempt 
projects between TIP update cycles; (2) the number of projects that may 
be delayed without this flexibility; (3) the full-scale network 
modeling process currently used for the regional emissions analysis to 
support conformity determinations (including number of model runs, 
number of emissions model runs, etc.); (4) the difference in effort 
required to add a single or limited number of projects as compared to a 
full-scale conformity analysis; and (5) which agencies are responsible 
for socioeconomic data development, travel modeling, and emissions 
modeling, including the percentage of each agency's involvement in 
conducting the conformity analysis.

VII. Consequences of SIP Disapproval

A. Description of Proposal

    In today's action EPA proposes as a primary alternative regulatory 
language that specifies that following a 120-day grace period after 
final EPA disapproval of a control strategy SIP or maintenance plan 
without a protective finding, the only transportation projects that 
could be approved (and thus grandfathered from future conformity 
lapses) would be those included in the first three years of the 
currently conforming transportation plan and TIP (and exempt projects). 
No

[[Page 36125]]

new transportation plans, TIPs, plan/TIP amendments or projects (or 
projects in the out-years of the transportation plan and TIP) could be 
approved. If any single phase of a transportation project is included 
in the first three years of the transportation plan/TIP, all phases of 
the project would be able to proceed following a disapproval, provided 
that all phases of the project were included in the transportation 
plan/TIP conformity analysis. Conformity determinations are required to 
analyze entire projects rather than individual phases.
    The ``freeze'' on new transportation plans, TIPs, and projects 
would be removed once an area submits another control strategy SIP or 
maintenance plan to replace the disapproved SIP, provided EPA does not 
find the motor vehicle emissions budgets inadequate during its 45-day 
review period. If such a replacement SIP does not become applicable to 
conformity determinations by the time Clean Air Act highway sanctions 
are imposed (two years after EPA's final disapproval), conformity would 
lapse, and no new project- level conformity determinations could be 
made, even for projects in the first three years of the currently 
conforming plan and TIP.
    During the 120-day grace period, transportation plans, TIPs, and 
projects could be found to conform using the disapproved budgets (if no 
replacement SIP applies for transportation conformity purposes). This 
120-day grace period is intended to allow areas to complete conformity 
determinations that were in process at the time of EPA's final 
disapproval.
    Under both today's proposal and the existing conformity rule, 
consequences would occur following any EPA final disapproval action on 
a control strategy SIP or maintenance plan without a protective 
finding, even if the disapproval is limited or partial. The motor 
vehicle emissions budget is sufficient only if the SIP as a whole 
satisfies the Clean Air Act requirements for reasonable further 
progress, attainment, or maintenance. If one part of a SIP is 
disapproved without a protective finding (even if that part does not 
address mobile sources), then there is no overall strategy for 
reasonable further progress, attainment, or maintenance, and it is not 
possible to determine whether consistency with the motor vehicle 
emissions budget will result in a level of emissions consistent with 
reasonable further progress, attainment, or maintenance.

B. Request for Comment

    Pending the opportunity to consider thoughtful comments from all 
interested parties, EPA is proposing today as a primary alternative the 
regulatory text discussed above because EPA believes it balances the 
conflicting goals articulated by stakeholders. EPA requests comment on 
how this proposal addresses stakeholder issues and concerns identified 
below. EPA also requests comment on whether other approaches are 
preferable, such as aligning the conformity lapse timeframe with the 
highway sanctions time clocks for SIP disapprovals without protective 
findings to make this process consistent with the conformity lapse 
process for other SIP failures. Alternatives to the primary option EPA 
is proposing today are described below. Depending on the public comment 
received, EPA may finalize one of these alternative approaches, instead 
of the primary alternative.

C. Discussion of Issue

    Conformity stakeholders have raised the issue of the appropriate 
conformity consequences when EPA disapproves a control strategy SIP 
without making a protective finding. EPA disapproval of a SIP without a 
protective finding is essentially a finding that the SIP does not have 
identified strategies to reach attainment (or reasonable further 
progress or maintenance), and the motor vehicle emissions budget is not 
adequate to satisfy Clean Air Act requirements. Final EPA SIP 
disapprovals require full notice-and-comment rulemaking.
    The November 1993 transportation conformity rule states that after 
a 120-day grace period following final EPA SIP disapproval, no new 
transportation plans, TIPs, or projects may be approved. Only 
previously approved projects (``grandfathered'' projects) and exempt 
projects may proceed. In other words, transportation plan/TIP 
conformity lapses. The lapse is removed when a new control strategy SIP 
or maintenance plan (including motor vehicle emissions budgets) is 
submitted to EPA.
    Some stakeholders have suggested that conformity should never lapse 
as a result of a SIP failure before Clean Air Act highway sanctions are 
imposed, because highway sanctions (not transportation conformity) are 
the Clean Air Act mechanism for addressing SIP failures. To a 
considerable degree EPA agrees with this reasoning, and EPA has amended 
the conformity rule to align conformity lapse with highway sanctions 
imposition in the case of all SIP failures except disapproval without a 
protective finding.
    However, there are substantive conformity issues with respect to 
SIP disapproval without a protective finding. If an area does not have 
sufficient adopted control strategies to attain the standards or make 
reasonable further progress towards attainment, should the area be 
committing funds to new transportation projects? If so, on what basis? 
Should it proceed with projects that already have been planned and upon 
which businesses and the public may already be relying in their own 
future plans, but stop creating new plans and expectations? In these 
cases, how would an area demonstrate that the transportation plan, TIP, 
or project would not increase the frequency or severity of existing 
violations, or contribute to new violations, or delay attainment?
    These issues are particularly important in the context of the 
conformity flexibilities in today's proposal. As described in sections 
II. and III. of today's action, EPA is proposing that consistency with 
submitted SIP budgets would become the sole emissions-related 
conformity test for transportation plans and TIPs, even before EPA 
approves the SIP and confirms that consistency with its motor vehicle 
emissions budget is sufficient to achieve reasonable further progress, 
attainment, or maintenance. Some stakeholders are concerned that 
because a significant amount of time is likely to elapse between 
initial submission of the control strategy SIP and any subsequent EPA 
disapproval, a significant number of transportation projects could be 
found to conform (and thus grandfathered) on the basis of an ultimately 
unacceptable motor vehicle emissions budget before final EPA 
disapproval actually occurs. These stakeholders are concerned about 
irreversible commitments that might make Clean Air Act requirements 
increasingly difficult to meet.
    Other stakeholders emphasize that the disruption to the ongoing 
transportation planning process should be minimized. They believe that 
people and businesses begin to rely on projects in an approved plan and 
TIP even though project-level conformity findings have not been made, 
and conformity lapse immediately upon EPA's final disapproval is unduly 
disruptive.

D. Discussion of Options

    Stakeholders have identified a number of options to address the 
consequences of EPA SIP disapproval without a protective finding. These 
options address the concerns described

[[Page 36126]]

above to varying degrees. EPA is interested in receiving comments on 
the alternative options described below and may finalize one of these 
options, instead of the primary option described above.
1. No Project Approvals (Conformity Lapse) Beginning Immediately Upon 
EPA Final Disapproval Without a Protective Finding
    Some stakeholders have suggested that no more projects should be 
approved (grandfathered) once EPA issues a final disapproval. However, 
these stakeholders generally accept that projects found to conform 
between submission and final disapproval should not be halted, even 
once the SIP has been disapproved. This option would minimize 
commitments that could ultimately be inconsistent with attainment or 
maintenance, until another SIP that would be a better basis for 
determining conformity is submitted to EPA.
2. Retain Existing Conformity Rule
    As described above, the November 1993 transportation conformity 
rule allows transportation plans, TIPs, and projects to be approved for 
120 days following EPA's final disapproval of a SIP without a 
protective finding. Following the 120-day grace period, no 
transportation plans, TIPs, or projects can be approved. This approach 
is similar to option 1 above, but the 120-day grace period helps reduce 
disruption to approvals that are underway at the time of EPA's final 
disapproval.
3. Allow Approval of Projects in the First Two Years of the 
Transportation Plan/TIP
    Some stakeholders advocate allowing previously planned 
transportation projects to be approved and grandfathered, but not 
approving new transportation plans, TIPs, or projects until a new SIP 
has been submitted to EPA. For example, some stakeholders endorsed a 
proposal that no transportation plans, TIPs, or amendments should be 
found to conform after EPA's final disapproval of a SIP, and only those 
projects scheduled for implementation during the first two years of the 
TIP, and projects found by the MPO and the state air agency to 
contribute to emissions reductions, should be allowed to proceed.
    This option is similar to that being proposed by EPA today as the 
primary alternative. This option prevents new commitments from being 
made, but allows projects previously planned to occur in the short term 
to proceed, in order to minimize disruption to the transportation 
planning process.
4. No Consequences Until Clean Air Act Highway Sanctions Are Applied
    Other stakeholders advocate allowing new transportation plans, 
TIPs, and projects to be approved and grandfathered using the build/no-
build test or the disapproved motor vehicle emissions budget until 
Clean Air Act highway sanctions are imposed. Highway sanctions under 
section 179 would be imposed two years following EPA's final 
disapproval unless the deficiency leading to the disapproval has been 
corrected prior to that time. These stakeholders believe that it is 
more consistent with the Clean Air Act to have Clean Air Act section 
179 highway funding sanctions being the trigger for consequences of a 
SIP disapproval. This change would also simplify the conformity rule by 
having all conformity lapses associated with SIP failures occur when 
highway sanctions are imposed.

E. Rationale for Primary Option Being Proposed

    EPA believes that the primary option it is proposing today (as 
described in section VII.A.) best balances the concerns expressed by 
stakeholders. EPA is proposing to allow projects in the first three 
years of the transportation plan/TIP to proceed, instead of those in 
the first two years, as suggested in option 3. Some conformity 
stakeholders expressed concern that restricting the ``grandfathering'' 
to the first two years of the transportation plan/TIP would be unduly 
disruptive to the transportation planning process, especially because 
the TIP normally addresses a minimum of three years. EPA believes that 
the primary option provides a better balance between the competing 
objectives of minimizing new commitments and minimizing disruption to 
the transportation planning process.

VIII. Mismatch in SIP/Transportation Plan Timeframe

A. Description of the Issue

    The existing transportation conformity rule requires the conformity 
of transportation plans and TIPs to be demonstrated for the entire 20-
year timeframe of the transportation plan. However, control strategy 
SIPs and maintenance plans generally address a significantly shorter 
timeframe. For example, attainment demonstrations are only required to 
address the years through the attainment year, and maintenance plans 
are only required to initially address a 10-year period (with a 
provision for a second 10-year appraisal).
    For the years in the timeframe of the transportation plan that are 
not addressed specifically by a SIP, the existing conformity rule 
requires emissions to be consistent with the SIP motor vehicle 
emissions budget(s) for the last year for which the SIP defines control 
strategies and budgets. For example, before a maintenance plan has been 
submitted, emissions predicted for the years after the attainment year 
must be consistent with the attainment year budget(s). Emissions in 
years after the first maintenance plan must be consistent with the 
motor vehicle emissions budget(s) for the last year of that maintenance 
plan.
    Several conformity implementers have commented that there should be 
a more flexible conformity test for the years that are not specifically 
addressed by the SIP. Conformity implementers have pointed out several 
difficulties caused by the existing transportation conformity rule's 
requirements for the ``out-years'' of the transportation plan.
    First, there are generally no adopted control measures to address 
VMT growth in years that are not specifically addressed by the SIP. As 
a result, it becomes the burden of the conformity process--and 
potentially the MPO alone--to address long-term growth issues and 
offset emissions increases. Placing the burden on the MPO to offset 
emissions from long-term growth can be problematic because MPOs 
generally lack the authority to adopt and enforce areawide emission 
controls. In areas such as PM<INF>10 areas this problem is particularly 
acute, because motor-vehicle-related PM<INF>10 emissions are directly 
related to VMT. Technological improvements in the motor vehicle fleet 
over time do not significantly reduce motor vehicle PM<INF>10 emissions 
related to reentrained dust.
    In addition, the existing conformity rule's requirement to use the 
budget established for the last year of the maintenance plan for all 
subsequent years poses special difficulties. In many areas, the motor 
vehicle emissions budget will decline over the 10 years of the first 
maintenance plan. This is generally because newer, cleaner cars will be 
added to the motor vehicle fleet as older cars are retired, so the 
emissions per VMT decrease. At the same time, emissions from stationary 
sources are often related to economic and population growth, and are 
thus projected to increase over time. As a result, many areas 
demonstrate maintenance of air quality standards with declining motor 
vehicle emissions

[[Page 36127]]

budgets and increasing stationary source emissions.
    However, over time the effect of fleet turnover decreases, because 
all cars in the fleet eventually meet applicable standards. In 
addition, increases in VMT may begin to offset the emissions decreases 
resulting from fleet turnover. Thus, motor vehicle emissions generally 
are projected to increase in the years after the first 10-year 
maintenance plan, and the motor vehicle emissions budget established 
for the last year of that maintenance plan may in fact represent a low 
point in the motor vehicle emissions projected for the 20-year 
maintenance period. Requiring motor vehicle emissions in the years 
after the first maintenance plan to be consistent with the budget for 
the last year of that maintenance plan may be difficult without 
additional control measures for stationary or mobile sources.

B. Request for Comment

    EPA is not proposing specific regulatory text to address this 
``mismatch'' issue at this time. However, EPA requests comment on three 
options, and EPA proposes to include one of the options in the 
regulatory text of the final rule.
1. Existing Transportation Conformity Rule
    The first option is to continue the existing conformity rule's 
requirements. According to the Clean Air Act, one of the purposes of 
conformity is to ensure that transportation improvements do not cause 
or contribute to new violations. The motor vehicle emissions budget for 
the attainment year represents the level of motor vehicle emissions 
that is consistent with attainment of the standard. Therefore, keeping 
motor vehicle emissions in future years equal to or less than that 
budget should ensure that motor vehicles will not cause or contribute 
to a new violation. If motor vehicle emissions increase above levels 
that the SIP identifies as necessary for attainment, it may be 
difficult to state that a new violation would not result, as conformity 
requires.
    Regarding the comments that the existing conformity rule 
inappropriately places the burden on the MPO to address long-term 
growth issues, it is in fact an important goal of conformity to focus 
attention on the long-term impacts of transportation investments and 
policies. To the extent that an area has not reconciled the impacts of 
growth and transportation policy with air quality goals, it is 
appropriate that conformity provide the forum and impetus for state and 
local governments to do so. Although the MPO may not itself have the 
authority to adopt and enforce necessary measures, conformity is 
determined through an interagency process which includes the state and 
local governments which do have that authority. It is appropriate that 
the long-term growth issues affecting a local area be addressed through 
the cooperation of state and local air and transportation agencies. The 
fact that the MPO has legal responsibility to determine conformity does 
not mean it alone must develop and implement the additional control 
measures that are necessary. The state also shares an interest in 
developing conforming metropolitan transportation plans and TIPs and 
would be expected to share responsibility for facilitating conformity.
    Maintaining the existing conformity rule's requirements regarding 
the applicability of motor vehicle emissions budgets for future years 
would also encourage the SIP process to address longer timeframes, 
which is ultimately the preferable solution. Doing so should avoid 
costs and burdens of not addressing long-term issues now. The 
difficulties associated with demonstrating conformity in years that are 
not addressed by the SIP would be reduced if the SIP established 
acceptable motor vehicle emission levels for such future years. This 
has already occurred in some areas.
    The existing conformity rule already has some provisions to address 
the difficulties associated with using the budget for the last year of 
the maintenance plan for subsequent years. For example, the maintenance 
plan could establish larger motor vehicle emissions budgets for years 
after the last year of the maintenance plan by projecting motor vehicle 
emissions and emissions from other source categories in future years. 
Provided the projected total emissions are less than the total 
emissions in a previous year with clean data, the motor vehicle 
emissions projections could be used to establish a motor vehicle 
emissions budget. If the projected total emissions are less than the 
total emissions in a previous year with clean data, the difference 
(``safety margin'') could also be applied to the motor vehicle 
emissions budget.
2. Emission Reduction Tests
    A second option would be to require the emission reduction tests 
(``build/no-build test'' and less-than-1990 test) for demonstrating 
conformity in years not addressed by submitted or approved control 
strategy SIPs or maintenance plans. Demonstrating conformity for years 
later than those addressed by SIPs is in some ways analogous to the 
situation of demonstrating conformity for years before SIPs are 
submitted, that is, no budget has been specifically developed for 
assessing conformity in such years. The Clean Air Act allows for 
``contribution to annual emission reductions'' to serve as the test of 
conformity in the latter case, so by extension, it could be argued that 
such a test is also appropriate for years later than those addressed by 
SIPs. The Clean Air Act requirement for consistency with emissions in 
SIPs could be argued to apply only for those years that are 
specifically addressed by the SIP.
    Although this option provides more flexibility than the existing 
rule for emissions increases due to population and economic growth, it 
has several disadvantages. First, satisfying the emission reduction 
tests would not ensure that motor vehicle emissions are at a level 
consistent with attainment or maintenance. Although the conformity test 
would ensure that motor vehicle emissions are no greater than they 
would have been without further transportation improvements, the focus 
is not on attainment or maintenance of air quality standards. As a 
result, the impact of long-term growth on attainment and maintenance 
will not necessarily be addressed.
    The Clean Air Act requires a second 10-year maintenance plan to be 
submitted eight years after an area's redesignation to attainment, so 
the SIP process in redesignated areas will ultimately address the 
emissions in the years after the first 10-year maintenance plan. In the 
case of areas that have not yet been redesignated, however, allowing 
motor vehicle emissions to increase above the attainment year budget 
may make it increasingly difficult to develop a SIP demonstrating 
maintenance, and thus may delay or complicate redesignation of such 
areas to attainment.
    Finally, conformity implementers and other interested parties have 
commented that the emission reduction tests are not meaningful 
indicators of air quality impacts, particularly because transportation 
modeling and emission factor modeling are often not sufficiently 
precise to determine significant differences between ``build'' and 
``no-build'' scenarios. Experience to date has found that the emission 
reduction tests are frustrating and difficult to explain because they 
do not address the performance-oriented goals of attainment and 
maintenance. Although practical alternatives have not been identified 
for use during the period before SIPs have been developed, for years 
later than those addressed by SIPs,

[[Page 36128]]

the previously established motor vehicle emissions budgets are 
available.
3. Default Motor Vehicle Emissions Budget
    A third option is to maintain the existing rule's requirements for 
the years after the attainment deadline and before a maintenance plan 
has been submitted, but to allow a default motor vehicle emissions 
budget for the years outside the maintenance plan's timeframe. Instead 
of requiring the motor vehicle emissions budget for the last year of 
the maintenance plan to continue to apply for subsequent years, the 
motor vehicle emissions budget for subsequent years could be the motor 
vehicle emissions in the year of redesignation.
    Like the emission reduction tests option, this option would not 
ensure that motor vehicle emissions are consistent with maintenance of 
air quality standards. Without considering emissions from sources other 
than motor vehicles, there is no assurance that the motor vehicle 
emissions in the year of redesignation will also be consistent with 
continued maintenance of the standard in future years. However, this 
problem could be at least somewhat reduced with additional features to 
this option. For example, the rule could require the default budget to 
be established in the maintenance plan and accompanied by some type of 
demonstration that when the default motor vehicle emissions budget is 
considered together with expected growth in area and stationary source 
emissions, the standard will be maintained.
    The default emissions budget option may be preferable to the 
emission reduction tests option for the years after those addressed by 
maintenance plans for two reasons. First, conformity implementers have 
expressed a preference for budget tests instead of the more abstract 
emission reduction tests. Second, unlike the emission reduction tests 
option, this option would provide a cap on motor vehicle emissions 
growth. Although the cap is not necessarily tied to maintenance, it 
does not allow emissions due to population and economic growth to 
revert back to 1990 levels, as the emission reduction tests allow. As a 
result, the conformity process could still provide significant 
protection for the public while providing the impetus for serious 
consideration of long-term growth effects.
    Unlike the emission reduction tests option, this option would 
maintain the existing rule's requirements (i.e., the attainment budget 
would continue to apply for the years after the attainment deadline) 
until a maintenance plan is submitted. This will help prevent delays in 
attainment and/or redesignation.
    Allowing conformity to be demonstrated using a default emissions 
budget that is not part of an overall maintenance strategy that 
addresses all emissions sources could be considered inconsistent with 
the Clean Air Act section 176(c) and the conformity rule's other 
interpretations of those provisions. However, it is also possible to 
argue that such an allowance is reasonable and defensible in the 
special circumstance of demonstrating conformity for years that have 
not yet been addressed by the maintenance plan.
    For example, the legislative history of the Clean Air Act reveals a 
specific choice to require maintenance plans to address 10-year 
increments rather than an entire 20-year period. It could therefore be 
argued that it is not conformity's responsibility to ensure maintenance 
over a 20-year period; provided the transportation community keeps 
motor vehicle emissions constrained to some level previously associated 
with maintenance, future maintenance plans could address emissions from 
other sources and revise motor vehicle emissions budgets as necessary 
for an overall maintenance strategy. It could also be argued that the 
Clean Air Act's Prevention of Significant Deterioration requirements 
are intended to address growth in non-mobile source emissions in years 
not addressed by maintenance plans, and that EPA can issue SIP calls if 
growth in non-mobile source emissions threatens maintenance.

IX. Public Participation

A. Description of the Proposal

    This proposal would clarify the timeframe within which information 
must be provided for public access under the public participation 
requirements in the existing conformity rule. The proposal would 
specify that affected agencies must provide public access to 
information considered by the agency in making transportation plan and 
TIP conformity determinations at the beginning of the designated public 
comment period and prior to taking formal action on conformity 
determinations. This proposal would define the information to include 
all technical and policy information considered by the agency in 
supporting conformity determinations.
    This proposal would continue to reference and be consistent with 
DOT's metropolitan planning regulation (23 CFR 450.316(b)), which, 
among other things, requires at least a 30-day comment period in 
serious and above nonattainment areas. Agencies affected by this 
proposal would be referred to DOT's January 1995 guidance, ``Public 
Involvement and Questions and Answers'' (60 FR 5508-5512), for specific 
identification of the types of information to be provided to the 
public. EPA expects that affected agencies would refer to this guidance 
in providing information for public comment. The guidance specifies 
input assumptions such as population projections, land use projections, 
fares, tolls, levels of service, the structure and specifications of 
travel demand and other evaluation tools.
    Since information supporting conformity determinations is stored in 
many forms, EPA interprets that this proposal's requirement would apply 
to information in written, graphic, and electronic form. Under this 
proposal, any charges imposed by affected agencies for public 
inspection and copying would be required to be consistent with the fee 
schedule in 49 CFR 7.95, which EPA believes would ensure reasonable 
public access to the information. EPA also notes that under the DOT 
metropolitan planning regulations, each MPO conducts public involvement 
under its own custom-tailored public involvement procedures. These 
procedures describe how the MPO intends to meet the performance 
standards of the conformity rule and metropolitan planning regulations.

B. Discussion of Proposal

    EPA is proposing this clarification to address stakeholder concerns 
that public participation is hindered when public access to information 
relied on for conformity determinations is not provided in enough time 
to allow for adequate public involvement. EPA agrees that public access 
to all of the information considered by the agency at the beginning of 
the public comment period is critical to ensuring effective public 
participation in the conformity process.
    In its ``Public Involvement and Questions and Answers'' guidance, 
DOT emphasizes that an effective public involvement process should 
provide for an open exchange of information and ideas between the 
public and transportation decisionmakers, and as an overall objective, 
an area's public involvement process should be proactive, provide 
complete information, timely public notice, full public access to key 
decisions, and opportunities for early and continuing involvement. EPA 
believes that this

[[Page 36129]]

proposal would not only be consistent with these objectives, but that 
it would further the purposes emphasized in the guidance.
    EPA does not believe that this proposal would be burdensome for 
affected agencies since it would only require that agencies provide 
public access to information already in their possession. This proposal 
would not require the affected agencies to edit, summarize existing 
files, or to compile new files beyond those already prepared as a part 
of the plan and TIP development process.

X. Interagency Consultation

    This proposal includes several new provisions which require 
interagency consultation, including the choice of conformity tests and 
modeling methodology for rural areas; the establishment of a ``default 
budget'' in clean data areas; and the addition of non-exempt projects 
to the transportation plan/TIP without full regional emissions 
analysis. EPA is not proposing to amend Sec. 51.402/Sec. 93.105 
(``Consultation'') to add these consultation needs to the list of 
specific processes that must be included in the conformity SIP's 
consultation procedures. EPA believes that it is clear that 
consultation procedures must be developed in order to use these new 
provisions. As a result, EPA does not believe that the complexity 
resulting from adding items to Sec. 51.402 is justified. Furthermore, 
the proposed provisions involving additional consultation procedures 
are for the most part optional flexibilities for unique situations, so 
consultation procedures to implement these flexibilities will not be 
relevant for all conformity SIPs.
    However, EPA emphasizes that interagency consultation on these 
specific provisions is a necessary part of their implementation. EPA 
recommends that in order to facilitate future conformity 
determinations, areas should develop appropriate consultation 
procedures as soon as possible if they expect to use these provisions.

XI. Streamlining and Clarification

    This proposal includes numerous wording and organizational changes 
that would streamline and clarify the existing transportation 
conformity rule. Although these changes affect most sections of the 
existing transportation conformity rule, highlights are discussed 
below.

A. Frequency of Conformity Determinations

1. Three-year Requirement
    This proposal would clarify that both the MPO and DOT must 
redetermine conformity of transportation plans/TIPs within three years 
of DOT's transportation plan/TIP conformity determination. The existing 
transportation conformity rule is not explicit regarding the start of 
the three-year clock and which agencies' conformity determinations must 
be completed before expiration of that clock. This clarification is 
consistent with implementation practice to date and would help reduce 
confusion and ambiguity for future implementers.
2. Triggers for Redetermination
    This proposal would streamline the paragraph that describes which 
events trigger an 18-month clock for redetermination of conformity. 
This proposal would also move Sec. 51.448(a)(1)/Sec. 93.128(a)(1), as 
amended on November 14, 1995, so that the requirement to determine 
conformity within 18 months of the initial submission of a control 
strategy SIP or maintenance plan is in the frequency section with the 
other triggers for conformity redetermination. Although the substance 
of the requirement is unchanged, the restructuring improves the flow 
and clarity of the rule.
    The relocation of Sec. 51.448(a)(1) highlights the fact that a 
conformity determination is required within 18 months of both the 
initial submission and final EPA approval of a control strategy SIP or 
maintenance plan. Both submission and approval trigger a 
redetermination of conformity, because it is not uncommon for the SIP 
to change between initial submission and final approval. If conformity 
was determined to the initial SIP submission and the SIP did not change 
between initial submission and final approval, the requirement to 
determine conformity after final approval could be satisfied without 
new regional emissions analysis.
3. Requirement for TIP Conformity Within Six Months of Transportation 
Plan Conformity
    This proposal would clarify existing Sec. 51.400(a)(3)/
Sec. 93.104(a)(3) by specifying that the TIP must be determined by DOT 
to conform within six months of DOT's conformity determination on a new 
or revised transportation plan. The existing requirement starts the 
six-month clock with the date of adoption of the plan.
    EPA received comment suggesting that the six-month limit between 
transportation plan and TIP conformity determinations is not necessary 
and should be removed. EPA believes that this requirement should be 
retained because of ISTEA's (and hence, conformity's) expectation that 
the TIP will flow from, and be consistent with, the transportation 
plan. The conformity rule requires TIP conformity to be based on a 
consideration of all projects in the 20-year timeframe of the 
transportation plan. As a result, changes to the transportation plan 
should be reflected in the TIP's conformity determination in a timely 
manner.
    EPA expects that in almost all cases, the plan and TIP will be 
developed concurrently and one regional emissions analysis will be 
performed to support both conformity determinations. In cases where the 
transportation plan and TIP are not developed concurrently, EPA 
believes the six-month requirement is critical to ensure that, given 
the changes to the transportation plan, projects from the TIP would 
still result in a level of regional emissions in 20 years that would 
not cause a new violation, worsen existing violations, or delay timely 
attainment.

B. Criteria and Procedures for Determining Conformity of Transportation 
Plans, Programs, and Projects: General

    This proposal would consolidate several parts of the existing 
transportation conformity rule into Sec. 51.410/Sec. 93.109 in order to 
create a section that provides a comprehensive overview of when and in 
what circumstances the budget test, emission reduction tests, and hot-
spot tests are required. The section would have separate paragraphs for 
ozone, CO, PM<INF>10, and NO<INF>2 areas and isolated rural areas so 
that the rule is easier to use and so that the conformity implications 
of Clean Air Act requirements and classifications that are unique to 
each pollutant are specifically addressed.
    This consolidation would allow the elimination of existing 
Sec. 51.464/Sec. 93.136 (``Special provisions for nonattainment areas 
which are not required to demonstrate reasonable further progress and 
attainment'') and Sec. 51.452(d)/Sec. 93.130(d) (``Projects not from a 
conforming plan and TIP in isolated rural nonattainment and maintenance 
areas''). The provisions for special situations would be discussed in 
the same place as provisions for other areas, thus making these 
provisions easier to locate and improving the clarity and user-
friendliness of the rule.

[[Page 36130]]

    As discussed in section II., the existing rule's classification 
system of ``Phase II interim period,'' ``transitional period,'' and 
``control strategy period'' would be eliminated.

C. Latest Planning Assumptions

    This proposal would clarify that conformity determinations must use 
the latest existing information regarding the effectiveness of all 
relevant SIP control measures, including TCMs, that have already been 
implemented. This would reduce confusion regarding what emission 
reduction credit should be assumed from vehicle inspection and 
maintenance programs that are included in approved SIPs and that are 
already being implemented.

D. Consultation Criterion

    This proposal would clarify Sec. 51.416/Sec. 93.112 (``Criteria and 
procedures: Consultation''), which is the section requiring conformity 
to be determined according to the consultation procedures of the rule, 
the conformity SIP, and DOT's planning regulations.
    This proposal would remove the reference to the MPO so that it is 
clear that rural areas must also abide by interagency and public 
consultation requirements. In addition, this proposal removes ambiguous 
language that could imply that areas are not required to comply with 
public participation procedures after the conformity SIP is approved.

E. Hot-spot Tests

    This proposal would consolidate and streamline existing 
Secs. 51.424 and 51.434 (Secs. 93.116 and 93.121), which address 
localized CO and PM<INF>10 violations (hot spots). The two sections 
would be combined, and paragraph (c) of each of these sections would be 
moved to the section addressing procedures for determining localized CO 
and PM<INF>10 concentrations (hot-spot analysis). This would reduce 
confusion regarding the distinction between the two hot-spot tests and 
streamline the discussion of both the conformity tests and the 
methodological requirements.

F. Compliance With PM<INF>10 Control Measures

    This proposal would clarify the existing requirement of 
Sec. 51.426/Sec. 93.117 for SIP PM<INF>10 control measures to be 
included in the project's final plans, specifications, and estimates. 
Because the final plans, specifications, and estimates are generally 
not developed until after the project's conformity determination, it is 
problematic for the existing rule to make the plans, specifications, 
and estimates a condition of the project-level conformity 
determination. This proposal would require the conformity determination 
to include a written commitment to include SIP PM<INF>10 control 
measures in the project's plans, specifications, and estimates. Such 
commitments would be enforceable, as required by existing Sec. 51.458/
Sec. 93.133 (``Enforceability of design concept and scope and project-
level mitigation and control measures'').

G. Budget Test

    This proposal would combine existing Secs. 51.428-51.432 
(Secs. 93.118-93.120) into one streamlined section that describes the 
budget test for the transportation plan, TIP, and project not from a 
conforming plan and TIP. As described in section III. of this preamble, 
the implementation of the budget test and the years for which budgets 
apply would be clarified.

H. Emission Reduction Tests

    This proposal would combine existing Secs. 51.436-51.446 
(Secs. 93.122-93.127), which describe the tests for emission reductions 
in the interim period for ozone, CO, PM<INF>10, and NO<INF>2 areas, 
into one streamlined section that addresses all pollutants and the 
transportation plan, TIP, and project not from a conforming plan and 
TIP. This would avoid the repetition of the definitions of the 
``Baseline'' and ``Action'' scenarios and improve the readability of 
the transportation conformity rule.
    This proposal would provide that the first analysis year shall be 
no more than five years beyond the year in which the conformity 
determination is being made. The existing conformity rule requires the 
first analysis year to be 1995 in CO nonattainment areas and 1996 in 
ozone nonattainment areas. This requirement is obviously no longer 
appropriate, because conformity is not intended to be assessed 
retrospectively.
    This proposal would also modify the definition of the ``Baseline'' 
scenario so that only projects that come from the first year of the 
previously conforming transportation plan/TIP are required to be 
included in the ``Baseline'' scenario. The existing conformity rule 
requires projects from the first three years of the previously 
conforming transportation plan/TIP to be included in the ``Baseline'' 
scenario. The proposed modification is intended to correct the perverse 
incentive that the existing requirement creates for areas to withhold 
projects with air quality benefits. Some stakeholders have commented 
that because the air quality benefits of projects in the second and 
third year of the TIP are included in the ``Baseline'' after the 
initial TIP conformity determination, areas are holding back some 
projects for use in future ``Action''/``Baseline'' comparisons.

I. Transition From the Interim Period to the Control Strategy Period

    Because the proposal would no longer use the terms ``interim 
period'' and ``control strategy period,'' this proposal would 
consolidate and streamline existing Sec. 51.448/Sec. 93.128 and better 
integrate its provisions into the rest of the transportation conformity 
rule.
    Under the proposal, this section would address only the conformity 
consequences of various SIP failures. This section would streamline the 
existing requirements regarding conformity lapse resulting from SIP 
failures, as amended August 7, 1995, and November 14, 1995. The term 
``protective finding'' would be included in the definitions section in 
order to decrease the wordiness of the requirements and improve the 
readability of the rule.
    Some of the existing requirements of Sec. 51.448 would be 
incorporated in the frequency section, the general overview of the 
criteria and procedures, and the budget test. Existing paragraphs (e) 
through (i) would be eliminated. Existing Sec. 51.448(e) requires 
consultation on individual capacity-increasing projects in areas that 
have not yet submitted control strategy SIPs. Because all areas that 
are already required to submit control strategy SIPs have made such 
submissions, EPA believes that the requirements of paragraph (e) are no 
longer necessary.
    Existing Sec. 51.448(f) describes conditions under which new 
regional emissions analysis is not necessary in order to determine 
conformity to a newly submitted control strategy SIP. EPA continues to 
believe that new regional emissions analysis would not be necessary 
under the conditions described in paragraph (f). However, EPA does not 
believe that this provision needs to be included in the regulatory 
text, because the provision is not commonly used and EPA believes the 
provision is sufficiently well understood.
    Existing paragraphs 51.448 (g) through (i) are no longer relevant 
given the other changes to the transportation conformity rule proposed 
in this notice.

J. Procedures for Determining Regional Transportation-Related Emissions

    This proposal would generally streamline and clarify existing 
Sec. 51.452/Sec. 93.130. Some of the clarifications are highlighted 
below.

[[Page 36131]]

1. Credit for Delayed Measures
    This proposal would clarify that if TCMs or any other measures in 
the approved SIP are delayed beyond the scheduled date, emission 
reduction credit may not be included in the emissions analysis until 
implementation is assured. This clarification would ensure that the 
requirements for latest planning assumptions and restrictions on 
assuming credit for regulatory measures are logically and consistently 
applied. As described in the discussion of the clarification to the 
``Latest planning assumptions'' section, broadening discussion of TCMs 
to include other SIP measures would reduce confusion regarding emission 
reduction credit for vehicle inspection and maintenance programs.
2. Credit for Future Measures
    This proposal would streamline and clarify the conditions under 
which emission reduction credit from future regulatory measures could 
be assumed. In addition, the proposal would add language regarding 
control measures that do not need a regulation in order to be 
implemented, but are not included in the transportation plan/TIP or the 
SIP. This language is intended to address measures such as increased 
street sweeping or street sanding specifications, which are external to 
the usual transportation planning process and which require some form 
of commitment that may not be explicitly regulatory or included in the 
SIP.
    This proposal would allow emission reduction credit from such 
measures to be assumed if the conformity determination includes written 
commitments to implementation of the measures by appropriate entities 
(e.g., government agencies, private project sponsors). The conformity 
SIP would have to provide that written commitments that are included in 
conformity determinations are enforceable under the SIP. This language 
regarding enforceability is similar to that in existing Sec. 51.458/
Sec. 93.133 (``Enforceability of design concept and scope and project-
level mitigation and control measures'') and that included in the 
general conformity rule (58 FR 63214, November 30, 1993).
    The proposed additional language would reduce confusion regarding 
these types of control measures and would allow more explicit 
flexibility for these measures to be developed and credited in the 
conformity process. The proposal would require written commitments to 
be included as part of the conformity determination, but would not 
require the commitments to be specifically included in the SIP. By 
making such commitments enforceable under the SIP as a general matter, 
the SIP would not have to be revised to include each specific 
commitment.
    The proposal would also allow regional emissions analyses to 
include emission reductions from projects, programs, or activities that 
are committed to in the control strategy SIP submission or the 
maintenance plan submission, similar to the existing conformity rule's 
Sec. 51.452(a)(4). Consistent with EPA's SIP policy, SIP commitments 
must include a demonstration that the agency making the commitment has 
authority to implement the measure and that adequate personnel and 
funding are available for implementation.
3. Highway Performance Monitoring System (HPMS)
    This proposal would clarify existing Sec. 51.452(b)(2)/
Sec. 93.130(b)(2) to specify that although HPMS estimates of VMT shall 
be considered the primary measure of VMT in certain cases, locally 
developed count-based programs and other variations from the procedure 
described in the conformity rule are permitted subject to the 
interagency consultation process. This paragraph applies to serious, 
severe, and extreme ozone nonattainment areas and serious CO 
nonattainment areas with an urbanized area population over than 
200,000.
    In its experience implementing the transportation conformity rule 
since 1993, EPA has received several questions regarding what should be 
used as the measure of VMT in areas that are not serious or above ozone 
or CO areas. These areas may use HPMS (including the factoring 
procedure described in existing Sec. 51.452(b)(2)/Sec. 93.130(b)(2)) or 
other locally developed programs and procedures, subject to the 
interagency consultation process.
4. Reliance on Previous Regional Emissions Analysis
    This proposal would consolidate in the section on procedures for 
regional emissions analysis the discussion of circumstances under which 
new regional emissions analysis may not be necessary. This discussion 
is currently included in the description of the budget test for TIPs 
and projects not from a conforming plan and TIP (Sec. 51.430/
Sec. 93.119 and Sec. 51.432/Sec. 93.120). This change would streamline 
these budget test sections and allow a simpler discussion of what must 
be demonstrated in order to satisfy the budget test.

K. Procedures for Determining Localized CO and PM<INF>10 Concentrations 
(Hot-spot Analysis)

    This proposal would restructure the procedural requirements for 
hot-spot analysis in order to clarify that the hot-spot tests should be 
satisfied using EPA ``Guideline'' models in specified cases and in 
other cases may be satisfied using other quantitative or qualitative 
methods. This proposal would retain the existing rule's description of 
what projects should have hot-spot analysis according to EPA's 
``Guideline'' models, but would clarify that other methods may be 
agreed upon through the interagency consultation process and with the 
approval of the EPA Regional Administrator.
    EPA is willing to consider methods that identify different 
thresholds for determining which projects would require EPA 
``Guideline'' models. For example, although the existing rule requires 
all projects affecting intersections at Level-of-Service D, E, or F to 
be quantitatively modeled using EPA ``Guideline'' models, an area may 
develop other thresholds for quantitative analysis based on delay 
times, traffic volume, queue lengths, background CO levels, and/or 
receptor locations. EPA will consider alternative methods for 
thresholds provided they are sufficient to determine that projects will 
not cause or contribute to new CO violations or increase the frequency 
or severity of existing CO violations (as described by the hot-spot 
criterion).
    In addition, if an individual project affects multiple 
intersections, EPA is willing to approve procedures that require 
quantitative modeling initially only for those intersections with the 
greatest potential for CO violations. If quantitative modeling of those 
intersections does not predict CO violations, the other intersections 
affected by the project would not have to be quantitatively modeled.

L. Enforceability of Design Concept and Scope and Project-Level 
Mitigation and Control Measures

    This proposal would clarify existing Sec. 51.458/Sec. 93.133 by 
stating that a waiver of mitigation measures is subject to the 
conformity rule's public participation requirements for project-level 
conformity determinations. The conformity rule requires public 
involvement in conformity determinations for projects where otherwise 
required by law (e.g., the National Environmental Policy Act (NEPA)). 
This clarification is consistent with EPA's original intent for a 
waiver of mitigation measures to be permitted

[[Page 36132]]

through a process similar to the original conformity determination. 
This clarification is in response to the May 26, 1994, Petition for 
Reconsideration by the Environmental Defense Fund, the Natural 
Resources Defense Council, and the Sierra Club Legal Defense Fund.

M. Exempt Projects

    This proposal would clarify Table 2 of existing Sec. 51.460/
Sec. 93.134 by specifying that the advance land acquisitions that are 
exempt are those emergency/hardship acquisitions provided for by 23 CFR 
712.204(d).
    As described in the preamble to the November 1993 conformity rule 
(58 FR 62213), the advance land acquisitions referred to in Table 2 are 
those ``parcels that are acquired to protect a property from imminent 
development and increased costs which would tend to limit a choice of 
transportation alternatives, or are acquired to alleviate particular 
hardship to a property owner at his or her request. This is only 
allowed in emergency or extraordinary cases, and only after the state 
department of transportation has given official notice to the public 
that a preferred highway or transit location has been selected, held a 
public hearing, or provided an opportunity for a public hearing.''
    This proposal would make this intention clearer in the rule by 
providing the specific citation that enables this type of hardship 
acquisition and protective buying.

XII. TCM Flexibility

    During the 1995 spring stakeholder meetings, EPA made a commitment 
to provide sample language for a SIP mechanism that would allow 
substitution of TCMs in a previously approved SIP without additional 
EPA approvals. As EPA indicated at that time, EPA believes that such a 
substitution mechanism is possible under existing EPA SIP policy, and 
no conformity rule amendment is necessary. As a result, EPA is not 
proposing language addressing TCM flexibility in today's action.
    EPA will be drafting model SIP language and distributing it to 
conformity stakeholders for comment.

XIII. PM<INF>10 Hot Spots

    Section 51.454(d) (93.131(d)) of the existing conformity rule 
requires quantitative PM<INF>10 hot-spot analysis in certain cases, but 
states that the requirements will not take effect until EPA releases 
modeling guidance and announces in the Federal Register that the 
requirements are in effect.
    EPA has not yet released guidance on dispersion modeling for 
PM<INF>10 hot spots due to transportation projects. As a result, the 
requirements for quantitative PM<INF>10 hot-spot analysis are not 
currently in effect.
    EPA has received comment requesting that these requirements should 
continue to be deferred until research that is underway by other 
organizations has been completed. For example, several PM<INF>10 
studies are being sponsored by the California Air Resources Board and 
the California Department of Transportation.
    EPA hereby announces its intention to delay the further development 
and issuance of its PM<INF>10 hot-spot modeling guidance pending the 
completion of research by organizations external to EPA. EPA does not 
intend to issue PM<INF>10 hot-spot modeling guidance before 1998. As a 
result, the requirements of existing Sec. 51.454(d)/Sec. 93.131(d) will 
continue to be deferred until such time as EPA releases modeling 
guidance and announces in the Federal Register that the requirements 
are in effect.

XIV. Signalization Projects

    EPA has received several comments suggesting that signalization 
projects, including areawide traffic signal synchronization projects 
and automated traffic surveillance and control projects, should be 
exempt from transportation conformity requirements. However, for the 
reasons described below, EPA is not proposing to change the exempt 
project lists (Tables 2 and 3 of the conformity rule) to exempt 
signalization projects.

A. Background

    The transportation conformity rule does not require conformity 
determinations for certain types of projects. These ``exempt'' projects 
are listed in Table 2 of the conformity rule. In contrast to other 
transportation projects, exempt projects can proceed toward 
implementation even if a currently conforming transportation plan or 
TIP is not in place. These projects are exempt from conformity 
requirements because EPA considers them to have a neutral or de minimis 
impact on air quality. EPA does not exempt projects that could have 
regional impacts--even if those impacts may be positive--because EPA 
believes that regionally significant projects must be analyzed 
together, in the context of all other regionally significant projects. 
In this way, the interactions among projects may be considered, and 
there is a meaningful estimate of regional emissions that can be 
compared to the SIP's motor vehicle emissions budget.
    In addition to the Table 2 projects that are exempt from conformity 
requirements, the transportation conformity rule also exempts certain 
projects from regional emissions analysis. These projects, which are 
listed in Table 3 of the conformity rule, are not required to be 
included in the regional emissions analysis for the transportation plan 
and TIP, and can proceed toward implementation even if a currently 
conforming transportation plan or TIP is not in place. However, 
conformity determinations are required for these projects, and the 
local effects of these projects on CO and PM<INF>10 concentrations must 
be considered in CO and PM<INF>10 nonattainment and maintenance areas.
    The existing transportation conformity rule exempts intersection 
signalization projects at individual intersections from regional 
emissions analysis, as indicated in Table 2.

B. Comments Supporting Exemption of Signalization Projects

    EPA has received comments that advocate the exemption of 
signalization projects because of positive air quality and congestion 
mitigation impacts of signalization projects and because of the 
implementation delays that may result from conformity requirements.
    For example, some commenters state that signalization projects 
decrease emissions by reducing acceleration, deceleration, and idling. 
They cite studies of certain signalization efforts that indicate 
significant reductions in CO, VOC, and NO<INF>x emissions. In addition, 
they state that improved efficiency of the roadway network benefits 
buses and high occupancy vehicle (HOV) users.
    In addition, some commenters support exempting signalization 
projects in order to avoid delays that could result from the 
requirement for these projects to be included in the transportation 
plan and TIP's regional emissions analysis. Some commenters expressed 
concern that signalization projects could be delayed for up to a year 
while going through conformity analysis.

C. Rationale For Decision Not To Exempt Signalization Projects

    EPA is not proposing to exempt signalization projects from 
conformity requirements because some of the projects may be complex, 
regionally significant projects whose emissions impacts must be 
assessed in the context of all regionally significant projects. For 
signalization projects that are not regionally significant, options 
exist to decrease the analysis burden and

[[Page 36133]]

potential delay of the conformity requirements, as described below.
    As described above, EPA's list of exempt projects is intended to 
include only those projects with neutral or de minimis emissions 
impacts. The types of signalization projects that commenters suggest 
exempting are clearly not de minimis. For example, some signalization 
projects are areawide synchronizations that affect hundreds of 
intersections. Even the more limited signalization projects are often 
complex projects associated with roadway construction and improvement. 
Traffic signalization projects are not always limited to simple 
upgrades of hardware or installation of new signals.
    In addition, signalization projects cannot generally be considered 
de minimis because they may affect traffic flow on a regional level. 
The emissions impacts may be positive or negative depending on the 
pollutant of concern, the speeds on the affected roads, and the effects 
on other roads in the network. For example, improved traffic flow and 
corresponding increases in traffic speed may reduce CO emissions, but 
may increase NO<INF>X emissions in certain speed ranges. PM<INF>10 
emissions may also increase. Significant changes in travel time may 
redistribute travel on other roads and affect mode choice. These 
effects need to be considered at a regional level, and the cumulative 
emissions impacts cannot be qualitatively determined.
    EPA recognizes that not all signalization projects at multiple 
intersections are regionally significant, particularly if they affect a 
small number of miles in a large metropolitan area, or if an area's 
modeling capabilities are not sensitive to the more subtle regional 
effects of signalization projects. The existing conformity rule allows 
projects that are not regionally significant to be amended into the 
transportation plan and TIP without a new regional emissions analysis, 
if the regional emissions analysis supporting the currently 
transportation plan and TIP is still valid (e.g., planning assumptions 
have not changed). As a result, EPA believes that there are already 
sufficient opportunities to minimize the analysis burden and potential 
project implementation delays in cases where the signalization projects 
are relatively simple.
    EPA considered trying to identify a threshold for determining which 
signalization projects at multiple intersections would not be 
considered regionally significant, so that these projects could be 
included in Table 3's list of projects that are exempt from regional 
emissions analysis. However, EPA decided that this approach would be 
unnecessarily complex and unlikely to provide a threshold that was 
appropriate for all areas. Areas currently have the discretion to 
determine which projects are regionally significant through the 
interagency consultation process, and thus have sufficient flexibility 
to minimize the analysis burden associated with signalization projects 
where appropriate.
    Finally, although EPA agrees that the conformity process should 
minimize project implementation delays as much as possible, EPA does 
not believe the delays associated with regionally significant 
signalization projects are unreasonable. If signalization projects are 
identified at the time the transportation plan and TIP are being 
developed, they can be included in the transportation plan and TIP's 
regional emissions analysis initially, and implementation delays should 
not occur. In many instances TIPs are developed annually. If 
transportation plan/TIP amendments between TIP cycles can be avoided 
with improved planning, implementation delays could be reduced.

XV. Conformity SIPs

    Section 51.396(a) of the existing conformity rule (as amended 
November 14, 1995) requires conformity SIP revisions to be submitted to 
EPA within 12 months after the date of publication of final amendments 
to the conformity rule. As a result, when EPA takes final action on 
today's proposal, conformity SIP revisions consistent with that final 
action will be due to EPA within 12 months.
    As specified in Sec. 51.396(b) of the conformity rule, after EPA 
approves a conformity SIP revision, the federal conformity rule does 
not govern conformity determinations. Therefore, for areas whose 
conformity SIP revision has already been approved by EPA, the final 
amendments that will result from today's proposal will not be effective 
until they are included in the conformity SIP revision and EPA approves 
that SIP revision.

XVI. Public Hearing

    Anyone who wants to present testimony about this proposal at the 
public hearing (see DATES) should, if possible, notify the contact 
person (see FOR FURTHER INFORMATION CONTACT) at least seven days prior 
to the day of the hearing. The contact person should be given an 
estimate of the time required for the presentation of testimony and 
notification of any need for audio/visual equipment. A sign-up sheet 
will be available at the registration table the morning of the hearing 
for scheduling those who have not notified the contact earlier. This 
testimony will be scheduled on a first-come,first-serve basis to follow 
the previously scheduled testimony.
    EPA requests that approximately 50 copies of the statement or 
material to be presented be brought to the hearing for distribution to 
the audience. In addition, EPA would find it helpful to receive an 
advance copy of any statement or material to be presented at the 
hearing at least one week before the scheduled hearing date. This is to 
give EPA staff adequate time to review such material before the 
hearing. Such advance copies should be submitted to the contact person 
listed.
    The official records of the hearing will be kept open until the 
close of the comment period to allow submission of rebuttal and 
supplementary testimony. All such submittals should be directed to the 
Air Docket, Docket A-96-05 (see ADDRESSES). The hearing will be 
conducted informally, and technical rules of evidence will not apply. A 
written transcript of the hearing will be placed in the above docket 
for review. Anyone desiring to purchase a copy of the transcript should 
make individual arrangements with the court reporter recording the 
proceeding.

XVII. Administrative Requirements

A. Administrative Designation

Executive Order 12866
    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or otherwise adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or state, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined

[[Page 36134]]

that this rule is a ``significant regulatory action'' because this 
action raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, and the principles set forth in 
the Executive Order. As such, this action was submitted to OMB for 
review. Changes made in response to OMB suggestions or recommendations 
will be documented in the public record.

B. Reporting and Recordkeeping Requirements

    This rule does not contain any information collection requirements 
from EPA which require approval by OMB under the Paperwork Reduction 
Act of 1980, 44 U.S.C. 3501 et seq.
    The information collection requirements of EPA's Transportation 
Conformity Rule and these amendments to it are covered under the 
Information Collection Request of the Department of Transportation 
entitled ``Metropolitan and Statewide Transportation Planning'', 
approved by OMB under the Paperwork Reduction Act through 11/96, with 
OMB Control Number 2132-0529. Send any comments on the recordkeeping 
and reporting requirements of Transportation Conformity to:

Mr. Sean Libberton, US Department of Transportation, TPL11, 400 7th 
Street, SW., Washington, DC 20590,

      and

Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for EPA/OAR, Room 10202, 725 17th 
Street, NW., Washington, DC 20503.

    In any correspondence please refer to OMB Control Number 2132-0529.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires federal agencies to 
identify potentially adverse impacts of federal regulations upon small 
entities. In instances where significant impacts are possible on a 
substantial number of these entities, agencies are required to perform 
a Regulatory Flexibility Analysis (RFA).
    EPA has determined that today's regulations will not have a 
significant impact on a substantial number of small entities. This 
regulation affects federal agencies and metropolitan planning 
organizations, which by definition are designated only for metropolitan 
areas with a population of at least 50,000. These organizations do not 
constitute small entities.
    Therefore, as required under section 605 of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation 
does not have a significant impact on a substantial number of small 
entities.

D. Unfunded Mandates

    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
state, local, or tribal governments in the aggregate.
    EPA has determined that to the extent this rule imposes any mandate 
within the meaning of the Unfunded Mandates Act, this final action does 
not include a mandate that may result in estimated costs of $100 
million or more to state, local, or tribal governments in the aggregate 
or to the private sector. Therefore, EPA has not prepared a statement 
with respect to budgetary impacts.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

40 CFR Part 93

    Administrative practice and procedure, Air pollution control, 
Carbon monoxide, Intergovernmental relations, Ozone.

    Dated: June 21, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR parts 51 and 93 are 
proposed to be amended as follows:

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. Subpart T is amended by removing Secs. 51.392 through 51.464 and 
by revising Sec. 51.390 to read as follows:

Subpart T--Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Laws


Sec. 51.390   Implementation plan revision.

    (a) States with areas subject to this rule must submit to the EPA 
and DOT a revision to their implementation plan which contains criteria 
and procedures for DOT, MPOs and other State or local agencies to 
assess the conformity of transportation plans, programs, and projects, 
consistent with these regulations. This revision is to be submitted by 
November 25, 1994 (or within 12 months of an area's redesignation from 
attainment to nonattainment, if the State has not previously submitted 
such a revision). Further revisions to the implementation plan required 
by amendments to part 93, subpart A of this chapter must be submitted 
within 12 months of the date of publication of such final amendments. 
EPA will provide DOT with a 30-day comment period before taking action 
to approve or disapprove the submission. A State's conformity 
provisions may contain criteria and procedures more stringent than the 
requirements described in these regulations only if the State's 
conformity provisions apply equally to non-federal as well as Federal 
entities.
    (b) The Federal conformity rules under this subpart and part 93 of 
this chapter, in addition to any existing applicable State 
requirements, establish the conformity criteria and procedures 
necessary to meet the requirements of Clean Air Act section 176(c) 
until such time as EPA approves the required conformity implementation 
plan revision. Following EPA approval of the State conformity 
provisions (or a portion thereof) in a revision to the applicable 
implementation plan, conformity determinations would be governed by the 
approved (or approved portion of the) State criteria and procedures. 
The Federal conformity regulations contained in part 93 of this chapter 
would apply only for the portion, if any, of the State's conformity 
provisions that is not approved by EPA. In addition, any previously 
applicable implementation plan conformity requirements remain 
enforceable until the State revises its applicable implementation plan 
to specifically remove them and that revision is approved by EPA.
    (c) The implementation plan revision required by this section must 
meet all of the requirements of part 93, subpart A of this chapter.
    (d) In order for EPA to approve the implementation plan revision 
submitted to EPA and DOT under this section, the plan must address all 
requirements of this subpart in a manner which gives them full legal 
effect. In particular, the revision shall incorporate the provisions of 
the following sections of this subpart in verbatim form, except insofar 
as needed to clarify or to give effect to a

[[Page 36135]]

stated intent in the revision to establish criteria and procedures more 
stringent than the requirements stated in these sections of this 
chapter: Secs. 93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110, 
93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119, 
93.120, 93.121, 93.126, and 93.127 of this chapter.

PART 93--[AMENDED]

    3. The authority citation for part 93 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    4. Subpart A is revised to read as follows:
Subpart A--Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec.
93.100  Purpose.
93.101  Definitions.
93.102  Applicability.
93.103  Priority.
93.104  Frequency of conformity determinations.
93.105  Consultation.
93.106  Content of transportation plans.
93.107  Relationship of transportation plan and TIP conformity with 
the NEPA process.
93.108  Fiscal constraints for transportation plans and TIPs.
93.109  Criteria and procedures for determining conformity of 
transportation plans, programs, and projects: General.
93.110  Criteria and procedures: Latest planning assumptions.
93.111  Criteria and procedures: Latest emissions model.
93.112  Criteria and procedures: Consultation.
93.113  Criteria and procedures: Timely implementation of TCMs.
93.114  Criteria and procedures: Currently conforming transportation 
plan and TIP.
93.115  Criteria and procedures: Projects from a plan and TIP.
93.116  Criteria and procedures: Localized CO and PM<INF>10 
violations (hot spots).
93.117  Criteria and procedures: Compliance with PM<INF>10 control 
measures.
93.118  Criteria and procedures: Motor vehicle emissions budget.
93.119  Criteria and procedures: Emission reductions in areas 
without motor vehicle emissions budgets.
93.120  Consequences of control strategy implementation plan 
failures.
93.121  Requirements for adoption or approval of projects by other 
recipients of funds designated under title 23 U.S.C. or the Federal 
Transit Laws.
93.122  Procedures for determining regional transportation-related 
emissions.
93.123  Procedures for determining localized CO and PM<INF>10 
concentrations (hot-spot analysis).
93.124  Using the motor vehicle emissions budget in the applicable 
implementation plan (or implementation plan submission).
93.125  Enforceability of design concept and scope and project-level 
mitigation and control measures.
93.126  Exempt projects.
93.127  Projects exempt from regional emissions analyses.


Sec. 93.100   Purpose.

    The purpose of this subpart is to implement Sec. 176(c) of the 
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the 
related requirements of 23 U.S.C. 109(j), with respect to the 
conformity of transportation plans, programs, and projects which are 
developed, funded, or approved by the United States Department of 
Transportation (DOT), and by metropolitan planning organizations (MPOs) 
or other recipients of funds under title 23 U.S.C. or the Federal 
Transit Laws (49 U.S.C. Chapter 53). This subpart sets forth policy, 
criteria, and procedures for demonstrating and assuring conformity of 
such activities to an applicable implementation plan developed pursuant 
to section 110 and Part D of the CAA.


Sec. 93.101   Definitions.

    Terms used but not defined in this subpart shall have the meaning 
given them by the CAA, titles 23 and 49 U.S.C., other Environmental 
Protection Agency (EPA) regulations, or other DOT regulations, in that 
order of priority.
    Applicable implementation plan is defined in section 302(q) of the 
CAA and means the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 
110, or promulgated under section 110(c), or promulgated or approved 
pursuant to regulations promulgated under section 301(d) and which 
implements the relevant requirements of the CAA.
    CAA means the Clean Air Act, as amended.
    Cause or contribute to a new violation for a project means:
    (1) To cause or contribute to a new violation of a standard in the 
area substantially affected by the project or over a region which would 
otherwise not be in violation of the standard during the future period 
in question, if the project were not implemented, or
    (2) To contribute to a new violation in a manner that would 
increase the frequency or severity of a new violation of a standard in 
such area.
    Clean data means air quality monitoring data determined by EPA to 
meet the requirements of 40 CFR part 58 that indicate attainment of the 
national ambient air quality standard.
    Control strategy implementation plan revision is the implementation 
plan which contains specific strategies for controlling the emissions 
of and reducing ambient levels of pollutants in order to satisfy CAA 
requirements for demonstrations of reasonable further progress and 
attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and 
192(b), for nitrogen dioxide).
    Design concept means the type of facility identified by the 
project, e.g., freeway, expressway, arterial highway, grade-separated 
highway, reserved right-of-way rail transit, mixed-traffic rail 
transit, exclusive busway, etc.
    Design scope means the design aspects which will affect the 
proposed facility's impact on regional emissions, usually as they 
relate to vehicle or person carrying capacity and control, e.g., number 
of lanes or tracks to be constructed or added, length of project, 
signalization, access control including approximate number and location 
of interchanges, preferential treatment for high-occupancy vehicles, 
etc.
    DOT means the United States Department of Transportation.
    EPA means the Environmental Protection Agency.
    FHWA means the Federal Highway Administration of DOT.
    FHWA/FTA project, for the purpose of this subpart, is any highway 
or transit project which is proposed to receive funding assistance and 
approval through the Federal-Aid Highway program or the Federal mass 
transit program, or requires Federal Highway Administration (FHWA) or 
Federal Transit Administration (FTA) approval for some aspect of the 
project, such as connection to an interstate highway or deviation from 
applicable design standards on the interstate system.
    FTA means the Federal Transit Administration of DOT.
    Forecast period with respect to a transportation plan is the period 
covered by the transportation plan pursuant to 23 CFR part 450.
    Highway project is an undertaking to implement or modify a highway 
facility or highway-related program. Such an undertaking consists of 
all required phases necessary for implementation. For analytical 
purposes, it must be defined sufficiently to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or significance, i.e., be usable and 
be a reasonable expenditure even if no

[[Page 36136]]

additional transportation improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Horizon year is a year for which the transportation plan describes 
the envisioned transportation system according to Sec. 93.106 of this 
subpart.
    Hot-spot analysis is an estimation of likely future localized CO 
and PM<INF>10 pollutant concentrations and a comparison of those 
concentrations to the national ambient air quality standards. Hot-spot 
analysis assesses impacts on a scale smaller than the entire 
nonattainment or maintenance area, including, for example, congested 
roadway intersections and highways or transit terminals, and uses an 
air quality dispersion model to determine the effects of emissions on 
air quality.
    Increase the frequency or severity means to cause a location or 
region to exceed a standard more often or to cause a violation at a 
greater concentration than previously existed and/or would otherwise 
exist during the future period in question, if the project were not 
implemented.
    ISTEA means the Intermodal Surface Transportation Efficiency Act of 
1991.
    Maintenance area means any geographic region of the United States 
previously designated nonattainment pursuant to the CAA Amendments of 
1990 and subsequently redesignated to attainment subject to the 
requirement to develop a maintenance plan under section 175A of the 
CAA, as amended.
    Maintenance plan means an implementation plan under section 175A of 
the CAA, as amended.
    Metropolitan planning organization (MPO) is that organization 
designated as being responsible, together with the State, for 
conducting the continuing, cooperative, and comprehensive planning 
process under 23 U.S.C. 134 and 49 U.S.C. 1607. It is the forum for 
cooperative transportation decision-making.
    Milestone has the meaning given in sections 182(g)(1) and 189(c) of 
the CAA. A milestone consists of an emissions level and the date on 
which it is required to be achieved.
    Motor vehicle emissions budget is that portion of the total 
allowable emissions defined in the submitted or approved control 
strategy implementation plan revision or maintenance plan for a certain 
date for the purpose of meeting reasonable further progress milestones 
or demonstrating attainment or maintenance of the NAAQS, for any 
criteria pollutant or its precursors, allocated to highway and transit 
vehicle use and emissions.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the CAA.
    NEPA means the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321 et seq.).
    NEPA process completion, for the purposes of this subpart, with 
respect to FHWA or FTA, means the point at which there is a specific 
action to make a determination that a project is categorically 
excluded, to make a Finding of No Significant Impact, or to issue a 
record of decision on a Final Environmental Impact Statement under 
NEPA.
    Nonattainment area means any geographic region of the United States 
which has been designated as nonattainment under Sec. 107 of the CAA 
for any pollutant for which a national ambient air quality standard 
exists.
    Project means a highway project or transit project.
    Protective finding means a determination by EPA that the control 
strategy contained in a submitted control strategy implementation plan 
revision would have been considered approvable with respect to 
requirements for emissions reductions if all committed measures had 
been submitted in enforceable form as required by Clean Air Act section 
110 (a)(2)(A).
    Recipient of funds designated under title 23 U.S.C. or the Federal 
Transit Laws means any agency at any level of State, county, city, or 
regional government that routinely receives title 23 U.S.C. or Federal 
Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA 
projects or equipment, purchase equipment, or undertake other services 
or operations via contracts or agreements. This definition does not 
include private landowners or developers, or contractors or entities 
that are only paid for services or products created by their own 
employees.
    Regionally significant project means a transportation project 
(other than an exempt project) that is on a facility which serves 
regional transportation needs (such as access to and from the area 
outside of the region, major activity centers in the region, major 
planned developments such as new retail malls, sports complexes, etc., 
or transportation terminals as well as most terminals themselves) and 
would normally be included in the modeling of a metropolitan area's 
transportation network, including at a minimum all principal arterial 
highways and all fixed guideway transit facilities that offer an 
alternative to regional highway travel.
    Standard means a national ambient air quality standard.
    Transit is mass transportation by bus, rail, or other conveyance 
which provides general or special service to the public on a regular 
and continuing basis. It does not include school buses or charter or 
sightseeing services.
    Transit project is an undertaking to implement or modify a transit 
facility or transit-related program; purchase transit vehicles or 
equipment; or provide financial assistance for transit operations. It 
does not include actions that are solely within the jurisdiction of 
local transit agencies, such as changes in routes, schedules, or fares. 
It may consist of several phases. For analytical purposes, it must be 
defined inclusively enough to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be 
a reasonable expenditure even if no additional transportation 
improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Transportation control measure (TCM) is any measure that is 
specifically identified and committed to in the applicable 
implementation plan that is either one of the types listed in section 
108 of the CAA, or any other measure for the purpose of reducing 
emissions or concentrations of air pollutants from transportation 
sources by reducing vehicle use or changing traffic flow or congestion 
conditions. Notwithstanding the above, vehicle technology-based, fuel-
based, and maintenance-based measures which control the emissions from 
vehicles under fixed traffic conditions are not TCMs for the purposes 
of this subpart.
    Transportation improvement program (TIP) means a staged, multiyear, 
intermodal program of transportation projects covering a metropolitan 
planning area which is consistent with the metropolitan transportation 
plan, and developed pursuant to 23 CFR part 450.
    Transportation plan means the official intermodal metropolitan 
transportation plan that is developed through the metropolitan planning 
process for the metropolitan planning area, developed pursuant to 23 
CFR part 450.
    Transportation project is a highway project or a transit project.

[[Page 36137]]

Sec. 93.102  Applicability.

    (a) Action applicability. (1) Except as provided for in paragraph 
(c) of this section or Sec. 93.126, conformity determinations are 
required for:
    (i) The adoption, acceptance, approval or support of transportation 
plans and transportation plan amendments developed pursuant to 23 CFR 
part 450 or 49 CFR part 613 by an MPO or DOT;
    (ii) The adoption, acceptance, approval or support of TIPs and TIP 
amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by 
an MPO or DOT; and
    (iii) The approval, funding, or implementation of FHWA/FTA 
projects.
    (2) Conformity determinations are not required under this rule for 
individual projects which are not FHWA/FTA projects. However, 
Sec. 93.121 applies to such projects if they are regionally 
significant.
    (b) Geographic Applicability. The provisions of this subpart shall 
apply in all nonattainment and maintenance areas for transportation-
related criteria pollutants for which the area is designated 
nonattainment or has a maintenance plan.
    (1) The provisions of this subpart apply with respect to emissions 
of the following criteria pollutants: Ozone, carbon monoxide (CO), 
nitrogen dioxide (NO<INF>2), and particles with an aerodynamic diameter 
less than or equal to a nominal 10 micrometers (PM<INF>10).
    (2) The provisions of this subpart apply with respect to emissions 
of the following precursor pollutants:
    (i) Volatile organic compounds (VOC) and nitrogen oxides (NO<INF>X) 
in ozone areas;
    (ii) NO<INF>X in NO<INF>2 areas; and
    (iii) VOC, NO<INF>X, and PM<INF>10 in PM<INF>10 areas if the EPA 
Regional Administrator or the director of the State air agency has made 
a finding that transportation-related precursor emissions within the 
nonattainment area are a significant contributor to the PM<INF>10 
nonattainment problem and has so notified the MPO and DOT, or if the 
applicable implementation plan (or implementation plan submission) 
establishes a budget for such emissions as part of the reasonable 
further progress, attainment or maintenance strategy.
    (3) The provisions of this subpart apply to maintenance areas for 
20 years from the date EPA approves the area's request under section 
107(d) of the CAA for redesignation to attainment, unless the 
applicable implementation plan specifies that the provisions of this 
subpart shall apply for more than 20 years.
    (c) Limitations. (1) Projects subject to this regulation for which 
the NEPA process and a conformity determination have been completed by 
DOT may proceed toward implementation without further conformity 
determinations unless more than three years have elapsed since the most 
recent major step (NEPA process completion; start of final design; 
acquisition of a significant portion of the right-of-way; or approval 
of the plans, specifications and estimates) occurred. All phases of 
such projects which were considered in the conformity determination are 
also included, if those phases were for the purpose of funding, final 
design, right-of-way acquisition, construction, or any combination of 
these phases.
    (2) A new conformity determination for the project will be required 
if there is a significant change in project design concept and scope, 
if a supplemental environmental document for air quality purposes is 
initiated, or if three years have elapsed since the most recent major 
step to advance the project occurred.
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas which have been designated attainment for either ozone, CO, 
PM<INF>10 or NO<INF>2 since 1990 and are subsequently redesignated to 
nonattainment for any of these pollutants, the provisions of this 
subpart shall not apply for 12 months following the date of final 
designation to nonattainment for such pollutant.


Sec. 93.103  Priority.

    When assisting or approving any action with air quality-related 
consequences, FHWA and FTA shall give priority to the implementation of 
those transportation portions of an applicable implementation plan 
prepared to attain and maintain the NAAQS. This priority shall be 
consistent with statutory requirements for allocation of funds among 
States or other jurisdictions.


Sec. 93.104  Frequency of conformity determinations.

    (a) Conformity determinations and conformity redeterminations for 
transportation plans, TIPs, and FHWA/FTA projects must be made 
according to the requirements of this section and the applicable 
implementation plan.
    (b) Frequency of conformity determinations for transportation 
plans.
    (1) Each new transportation plan must be demonstrated to conform 
before the transportation plan is approved by the MPO or accepted by 
DOT.
    (2) All transportation plan revisions must be found to conform 
before the transportation plan revisions are approved by the MPO or 
accepted by DOT, unless the revision merely adds or deletes exempt 
projects listed in Sec. 93.126 or Sec. 93.127. The conformity 
determination must be based on the transportation plan and the revision 
taken as a whole.
    (3) The MPO and DOT must determine the conformity of the 
transportation plan no less frequently than every three years. If more 
than three years elapse after DOT's conformity determination without 
the MPO and DOT determining conformity of the transportation plan, the 
existing conformity determination will lapse.
    (c) Frequency of conformity determinations for transportation 
improvement programs.
    (1) A new TIP must be demonstrated to conform before the TIP is 
approved by the MPO or accepted by DOT.
    (2) A TIP amendment requires a new conformity determination for the 
entire TIP before the amendment is approved by the MPO or accepted by 
DOT, unless the amendment merely adds or deletes exempt projects listed 
in Sec. 93.126 or Sec. 93.127.
    (3) The MPO and DOT must determine the conformity of the TIP no 
less frequently than every three years. If more than three years elapse 
after DOT's conformity determination without the MPO and DOT 
determining conformity of the TIP, the existing conformity 
determination will lapse.
    (4) After an MPO adopts a new or revised transportation plan, 
conformity of the TIP must be redetermined by the MPO and DOT within 
six months from the date of DOT's conformity determination for the 
transportation plan, unless the new or revised plan merely adds or 
deletes exempt projects listed in Secs. 93.126 and 93.127. Otherwise, 
the existing conformity determination for the TIP will lapse.
    (d) Projects. FHWA/FTA projects must be found to conform before 
they are adopted, accepted, approved, or funded. Conformity must be 
redetermined for any FHWA/FTA project if three years have elapsed since 
the most recent major step to advance the project (NEPA process 
completion; start of final design; acquisition of a significant portion 
of the right-of-way; or approval of the plans, specifications and 
estimates) occurred.
    (e) Triggers for transportation plan and TIP conformity 
determinations. Conformity of existing transportation plans and TIPs 
must be redetermined within 18 months of the following, or the existing 
conformity determination will lapse, and no new project-level 
conformity determinations may be made

[[Page 36138]]

until conformity of the transportation plan and TIP has been determined 
by the MPO and DOT:
    (1) November 24, 1993;
    (2) The date of the State's initial submission to EPA of each 
control strategy implementation plan or maintenance plan establishing a 
motor vehicle emissions budget;
    (3) EPA approval of a control strategy implementation plan revision 
or maintenance plan which establishes or revises a motor vehicle 
emissions budget;
    (4) EPA approval of an implementation plan revision that adds, 
deletes, or changes TCMs; and
    (5) EPA promulgation of an implementation plan which establishes or 
revises a motor vehicle emissions budget or adds, deletes, or changes 
TCMs.


Sec. 93.105  Consultation.

    (a) General. The implementation plan revision required under 
Sec. 51.390 of this chapter shall include procedures for interagency 
consultation (Federal, State, and local) and resolution of conflicts.
    (1) The implementation plan revision shall include procedures to be 
undertaken by MPOs, State departments of transportation, and DOT with 
State and local air quality agencies and EPA before making conformity 
determinations, and by State and local air agencies and EPA with MPOs, 
State departments of transportation, and DOT in developing applicable 
implementation plans.
    (2) Before EPA approves the conformity implementation plan revision 
required by Sec. 51.390 of this chapter, MPOs and State departments of 
transportation must provide reasonable opportunity for consultation 
with State air agencies, local air quality and transportation agencies, 
DOT, and EPA, including consultation on the issues described in 
paragraph (c)(1) of this section, before making conformity 
determinations.
    (b) Interagency consultation procedures: General factors. (1) 
States shall provide well-defined consultation procedures in the 
implementation plan whereby representatives of the MPOs, State and 
local air quality planning agencies, State and local transportation 
agencies, and other organizations with responsibilities for developing, 
submitting, or implementing provisions of an implementation plan 
required by the CAA must consult with each other and with local or 
regional offices of EPA, FHWA, and FTA on the development of the 
implementation plan, the transportation plan, the TIP, and associated 
conformity determinations.
    (2) Interagency consultation procedures shall include at a minimum 
the general factors listed below and the specific processes in 
paragraph (c) of this section:
    (i) The roles and responsibilities assigned to each agency at each 
stage in the implementation plan development process and the 
transportation planning process, including technical meetings;
    (ii) The organizational level of regular consultation;
    (iii) A process for circulating (or providing ready access to) 
draft documents and supporting materials for comment before formal 
adoption or publication;
    (iv) The frequency of, or process for convening, consultation 
meetings and responsibilities for establishing meeting agendas;
    (v) A process for responding to the significant comments of 
involved agencies; and
    (vi) A process for the development of a list of the TCMs which are 
in the applicable implementation plan.
    (c) Interagency consultation procedures: Specific processes. 
Interagency consultation procedures shall also include the following 
specific processes:
    (1) A process involving the MPO, State and local air quality 
planning agencies, State and local transportation agencies, EPA, and 
DOT for the following:
    (i) Evaluating and choosing a model (or models) and associated 
methods and assumptions to be used in hot-spot analyses and regional 
emissions analyses;
    (ii) Determining which minor arterials and other transportation 
projects should be considered ``regionally significant'' for the 
purposes of regional emissions analysis (in addition to those 
functionally classified as principal arterial or higher or fixed 
guideway systems or extensions that offer an alternative to regional 
highway travel), and which projects should be considered to have a 
significant change in design concept and scope from the transportation 
plan or TIP;
    (iii) Evaluating whether projects otherwise exempted from meeting 
the requirements of this subpart (see Secs. 93.126 and 93.127) should 
be treated as non-exempt in cases where potential adverse emissions 
impacts may exist for any reason;
    (iv) Making a determination, as required by Sec. 93.113(c)(1), 
whether past obstacles to implementation of TCMs which are behind the 
schedule established in the applicable implementation plan have been 
identified and are being overcome, and whether State and local agencies 
with influence over approvals or funding for TCMs are giving maximum 
priority to approval or funding for TCMs. This process shall also 
consider whether delays in TCM implementation necessitate revisions to 
the applicable implementation plan to remove TCMs or substitute TCMs or 
other emission reduction measures;
    (v) Identifying, as required by Sec. 93.123(d), projects located at 
sites in PM<INF>10 nonattainment areas which have vehicle and roadway 
emission and dispersion characteristics which are essentially identical 
to those at sites which have violations verified by monitoring, and 
therefore require quantitative PM<INF>10 hot-spot analysis; and
    (vi) Notification of transportation plan or TIP revisions or 
amendments which merely add or delete exempt projects listed in 
Sec. 93.126.
    (2) A process involving the MPO and State and local air quality 
planning agencies and transportation agencies for the following:
    (i) Evaluating events which will trigger new conformity 
determinations in addition to those triggering events established in 
Sec. 93.104; and
    (ii) Consulting on emissions analysis for transportation activities 
which cross the borders of MPOs or nonattainment areas or air basins.
    (3) Where the metropolitan planning area does not include the 
entire nonattainment or maintenance area, a process involving the MPO 
and the State department of transportation for cooperative planning and 
analysis for purposes of determining conformity of all projects outside 
the metropolitan area and within the nonattainment or maintenance area.
    (4) A process to ensure that plans for construction of regionally 
significant projects which are not FHWA/FTA projects (including 
projects for which alternative locations, design concept and scope, or 
the no-build option are still being considered), including those by 
recipients of funds designated under title 23 U.S.C. or the Federal 
Transit Laws, are disclosed to the MPO on a regular basis, and to 
ensure that any changes to those plans are immediately disclosed;
    (5) A process involving the MPO and other recipients of funds 
designated under title 23 U.S.C. or the Federal Transit Laws for 
assuming the location and design concept and scope of projects which 
are disclosed to the MPO as required by paragraph (c)(4) of this 
section but whose sponsors have not yet decided these features, in 
sufficient

[[Page 36139]]

detail to perform the regional emissions analysis according to the 
requirements of Sec. 93.122.
    (6) A process for consulting on the design, schedule, and funding 
of research and data collection efforts and regional transportation 
model development by the MPO (e.g., household/travel transportation 
surveys).
    (7) A process for providing final documents (including applicable 
implementation plans and implementation plan revisions) and supporting 
information to each agency after approval or adoption. This process is 
applicable to all agencies described in paragraph (a)(1) of this 
section, including Federal agencies.
    (d) Resolving conflicts. Conflicts among State agencies or between 
State agencies and an MPO shall be escalated to the Governor if they 
cannot be resolved by the heads of the involved agencies. The State air 
agency has 14 calendar days to appeal to the Governor after the State 
DOT or MPO has notified the State air agency head of the resolution of 
his or her comments. The implementation plan revision required by 
Sec. 51.390 of this chapter shall define the procedures for starting 
the 14-day clock. If the State air agency appeals to the Governor, the 
final conformity determination must have the concurrence of the 
Governor. If the State air agency does not appeal to the Governor 
within 14 days, the MPO or State department of transportation may 
proceed with the final conformity determination. The Governor may 
delegate his or her role in this process, but not to the head or staff 
of the State or local air agency, State department of transportation, 
State transportation commission or board, or an MPO.
    (e) Public consultation procedures. Affected agencies making 
conformity determinations on transportation plans, programs, and 
projects shall establish a proactive public involvement process which 
provides opportunity for public review and comment by, at a minimum, 
providing reasonable public access to technical and policy information 
considered by the agency at the beginning of the public comment period 
and prior to taking formal action on a conformity determination for all 
transportation plans and TIPs, consistent with these requirements and 
those of 23 CFR 450.316(b). Any charges imposed for public inspection 
and copying should be consistent with the fee schedule contained in 49 
CFR 7.95. In addition, these agencies must specifically address in 
writing all public comments that known plans for a regionally 
significant project which is not receiving FHWA or FTA funding or 
approval have not been properly reflected in the emissions analysis 
supporting a proposed conformity finding for a transportation plan or 
TIP. These agencies shall also provide opportunity for public 
involvement in conformity determinations for projects where otherwise 
required by law.


Sec. 93.106   Content of transportation plans.

    (a) Transportation plans adopted after January 1, 1997 in serious, 
severe, or extreme ozone nonattainment areas and in serious CO 
nonattainment areas. If the metropolitan planning area contains an 
urbanized area population greater than 200,000, the transportation plan 
must specifically describe the transportation system envisioned for 
certain future years which shall be called horizon years.
    (1) The agency or organization developing the transportation plan 
may choose any years to be horizon years, subject to the following 
restrictions:
    (i) Horizon years may be no more than 10 years apart.
    (ii) The first horizon year may be no more than 10 years from the 
base year used to validate the transportation demand planning model.
    (iii) If the attainment year is in the time span of the 
transportation plan, the attainment year must be a horizon year.
    (iv) The last horizon year must be the last year of the 
transportation plan's forecast period.
    (2) For these horizon years:
    (i) The transportation plan shall quantify and document the 
demographic and employment factors influencing expected transportation 
demand, including land use forecasts, in accordance with implementation 
plan provisions and the consultation requirements specified by 
Sec. 93.105;
    (ii) The highway and transit system shall be described in terms of 
the regionally significant additions or modifications to the existing 
transportation network which the transportation plan envisions to be 
operational in the horizon years. Additions and modifications to the 
highway network shall be sufficiently identified to indicate 
intersections with existing regionally significant facilities, and to 
determine their effect on route options between transportation analysis 
zones. Each added or modified highway segment shall also be 
sufficiently identified in terms of its design concept and design scope 
to allow modeling of travel times under various traffic volumes, 
consistent with the modeling methods for area-wide transportation 
analysis in use by the MPO. Transit facilities, equipment, and services 
envisioned for the future shall be identified in terms of design 
concept, design scope, and operating policies that are sufficient for 
modeling of their transit ridership. Additions and modifications to the 
transportation network shall be described sufficiently to show that 
there is a reasonable relationship between expected land use and the 
envisioned transportation system; and
    (iii) Other future transportation policies, requirements, services, 
and activities, including intermodal activities, shall be described.
    (b) Moderate areas reclassified to serious Ozone or CO 
nonattainment areas which are reclassified from moderate to serious 
must meet the requirements of paragraph (a) of this section within two 
years from the date of reclassification.
    (c) Transportation plans for other areas Transportation plans for 
other areas must meet the requirements of paragraph (a) of this section 
at least to the extent it has been the previous practice of the MPO to 
prepare plans which meet those requirements. Otherwise, the 
transportation system envisioned for the future must be sufficiently 
described within the transportation plans so that a conformity 
determination can be made according to the criteria and procedures of 
Secs. 93.109--93.119.
    (d) Savings The requirements of this section supplement other 
requirements of applicable law or regulation governing the format or 
content of transportation plans.


Sec. 93.107   Relationship of transportation plan and TIP conformity 
with the NEPA process.

    The degree of specificity required in the transportation plan and 
the specific travel network assumed for air quality modeling do not 
preclude the consideration of alternatives in the NEPA process or other 
project development studies. Should the NEPA process result in a 
project with design concept and scope significantly different from that 
in the transportation plan or TIP, the project must meet the criteria 
in Secs. 93.109--93.119 for projects not from a TIP before NEPA process 
completion.


Sec. 93.108   Fiscal constraints for transportation plans and TIPs.

    Transportation plans and TIPs must be fiscally constrained 
consistent with DOT's metropolitan planning regulations at 23 CFR part 
450 in order to be found in conformity.

[[Page 36140]]

Sec. 93.109  Criteria and procedures for determining conformity of 
transportation plans, programs, and projects: General.

    (a) In order for each transportation plan, program, and FHWA/FTA 
project to be found to conform, the MPO and DOT must demonstrate that 
the applicable criteria and procedures in this subpart are satisfied, 
and the MPO and DOT must comply with all applicable conformity 
requirements of implementation plans and of court orders for the area 
which pertain specifically to conformity. The criteria for making 
conformity determinations differ based on the action under review 
(transportation plans, TIPs, and FHWA/FTA projects), the relevant 
pollutant(s), and the status of the implementation plan.
    (b) The following table indicates the criteria and procedures in 
Secs. 93.110-93.119 which apply for transportation plans, TIPs, and 
FHWA/FTA projects. Paragraphs (c) through (f) of this section explain 
when the budget, emission reduction, and hot spot tests are required 
for each pollutant. Paragraph (g) of this section addresses isolated 
rural nonattainment and maintenance areas.

                      Table 1.--Conformity Criteria                     
                                                                        
                                                                        
            All Actions at All Times                                    
                                                                        
------------------------------------------------------------------------
Sec.  93.110.......  Latest planning                                    
                      assumptions.                                      
Sec.  93.111.......  Latest emissions model.                            
Sec.  93.112.......  Consultation.                                      
                                                                        
------------------------------------------------------------------------
              Transportation Plan                                       
                                                                        
------------------------------------------------------------------------
Sec.  93.113(b)....  TCMs.                                              
Sec.  93.118 OR      Emissions budget OR                                
 Sec.  93.119.        Emission reduction.                               
                                                                        
------------------------------------------------------------------------
                       TIP                                              
                                                                        
------------------------------------------------------------------------
Sec.  93.113(c)....  TCMs.                                              
Sec.  93.118 OR      Emissions budget OR                                
 Sec.  93.119.        Emission reduction.                               
                                                                        
------------------------------------------------------------------------
    Project (From a Conforming Plan and TIP)                            
                                                                        
------------------------------------------------------------------------
Sec.  93.114.......  Currently conforming plan                          
                      and TIP.                                          
Sec.  93.115.......  Project from a conforming                          
                      plan and TIP.                                     
Sec.  93.116.......  CO and PM<INF>10 hot spots.                             
Sec.  93.117.......  PM<INF>10 control measures.                             
                                                                        
------------------------------------------------------------------------
  Project (Not From a Conforming Plan and TIP)                          
                                                                        
------------------------------------------------------------------------
Sec.  93.113(d)....  TCMs.                                              
Sec.  93.114.......  Currently conforming plan                          
                      and TIP.                                          
Sec.  93.116.......  CO and PM<INF>10 hot spots.                             
Sec.  93.117.......  PM<INF>10 control measures.                             
Sec.  93.118 OR      Emissions budget OR                                
 Sec.  93.119.        Emission reduction.                               

    (c) Ozone nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 that are required to be satisfied at all 
times, in ozone nonattainment and maintenance areas conformity 
determinations must include a demonstration that the budget and/or 
emission reduction tests are satisfied as described in the following 
paragraphs.
    (1) In ozone areas the budget test must be satisfied as required by 
Sec. 93.118 for conformity determinations made:
    (i) 45 days after a control strategy implementation plan revision 
or maintenance plan has been submitted to EPA, unless EPA has declared 
the motor vehicle emissions budget inadequate for transportation 
conformity purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (2) In moderate and above ozone nonattainment areas the emission 
reduction tests must be satisfied as required by Sec. 93.119 for 
conformity determinations made:
    (i) During the first 45 days after a control strategy 
implementation plan revision or maintenance plan has been submitted to 
EPA, unless EPA has declared a motor vehicle emissions budget adequate 
for transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
SIP or a previously submitted control strategy implementation plan 
revision or maintenance plan.
    (3) An ozone nonattainment area must satisfy the emission reduction 
test for NO<INF>X, as required by Sec. 93.119, if the implementation 
plan or plan submission that is applicable for the purposes of 
conformity determinations is a 15% SIP or Phase I attainment 
demonstration that does not include a motor vehicle emissions budget 
for NO<INF>X. The implementation plan will be considered to establish a 
motor vehicle emissions budget for NO<INF>X if the implementation plan 
or plan submission contains an explicit NO<INF>X motor vehicle 
emissions budget that is intended to act as a ceiling on future 
NO<INF>X emissions, and the NO<INF>X motor vehicle emissions budget is 
a net reduction from NO<INF>X emissions levels in 1990.
    (4) Marginal and below ozone nonattainment areas that have three 
consecutive years of clean data and that have not submitted a 
maintenance plan must satisfy one of the following requirements:
    (i) The emission reduction tests as required by Sec. 93.119;
    (ii) The State air quality agency shall determine (subject to the 
interagency consultation process required by Sec. 93.105) the motor 
vehicle emissions of ozone precursors in the most recent year of clean 
data. The budget test required by Sec. 93.118 must be satisfied, with 
these motor vehicle emission levels serving as the motor vehicle 
emissions budget; or
    (iii) The State shall submit to EPA an implementation plan revision 
that contains motor vehicle emissions budget(s) and an attainment or 
maintenance demonstration, and the budget test required by Sec. 93.118 
must be satisfied using the submitted motor vehicle emissions budget(s) 
(as described in paragraph (c)(1) of this section).
    (5) Marginal and below ozone nonattainment areas that do not have 
three consecutive years of clean data must satisfy one of the following 
requirements:
    (i) The emission reduction tests required by Sec. 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 Sec. 93.118 must be 
satisfied using the submitted motor vehicle emissions budget(s) (as 
described in paragraph (c)(1) of this section).
    (6) Notwithstanding paragraphs (c)(1) and (c)(2) of this section, 
moderate and above ozone nonattainment areas with three years of clean 
data that have not submitted a maintenance plan and that EPA has 
determined are not subject to the Clean Air Act reasonable further 
progress and attainment demonstration requirements must satisfy one of 
the following requirements:
    (i) The emission reduction tests as required by Sec. 93.119;
    (ii) The budget test as required by Sec. 93.118, using the motor 
vehicle emissions budgets in the submitted control strategy 
implementation plan (subject to the timing requirements of paragraph 
(c)(1) of this section); or
    (iii) The State air quality agency shall determine (subject to the 
interagency consultation process required by

[[Page 36141]]

Sec. 93.105) the motor vehicle emissions of ozone precursors in the 
most recent year of clean data. The budget test required by Sec. 93.118 
must be satisfied, with these motor vehicle emission levels serving as 
the motor vehicle emissions budget.
    (d) CO nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 that are required to be satisfied at all 
times, in CO nonattainment and maintenance areas conformity 
determinations must include a demonstration that the hot spot, budget 
and/or emission reduction tests are satisfied as described in the 
following paragraphs.
    (1) FHWA/FTA projects in CO nonattainment or maintenance areas must 
satisfy the hot spot test required by Sec. 93.116 at all times. Until a 
CO attainment demonstration or maintenance plan is approved by EPA, 
FHWA/FTA projects must also satisfy the hot spot test required by 
Sec. 93.116(b).
    (2) In CO areas the budget test must be satisfied as required by 
Sec. 93.118 for conformity determinations made:
    (i) 45 days after a control strategy implementation plan revision 
or maintenance plan has been submitted to EPA, unless EPA has declared 
the motor vehicle emissions budget inadequate for transportation 
conformity purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (3) In moderate CO nonattainment areas with a design value greater 
than 12.7 ppm and serious CO nonattainment areas the emission reduction 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made:
    (i) During the first 45 days after a control strategy 
implementation plan revision or maintenance plan has been submitted to 
EPA, unless EPA has declared a motor vehicle emissions budget adequate 
for transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
SIP or a previously submitted control strategy implementation plan 
revision or maintenance plan.
    (4) If a moderate CO nonattainment area with a design value of 12.7 
ppm or less or a not classified CO nonattainment area has two 
consecutive years of clean data and has not submitted a maintenance 
plan, one of the following requirements must be satisfied:
    (i) The emission reduction tests as required by Sec. 93.119;
    (ii) The State air quality agency shall determine (subject to the 
interagency consultation process required by Sec. 93.105) the motor 
vehicle emissions of CO in the most recent year of clean data. The 
budget test required by Sec. 93.118 must be satisfied, with these motor 
vehicle emission levels serving as the motor vehicle emissions budget; 
or
    (iii) The State shall submit to EPA an implementation plan revision 
that contains motor vehicle emissions budget(s) and an attainment or 
maintenance demonstration, and the budget test required by Sec. 93.118 
must be satisfied using the submitted motor vehicle emissions budget(s) 
(as described in paragraph (d)(1) of this section).
    (5) If a moderate CO nonattainment area with a design value of 12.7 
ppm or less or a not classified CO nonattainment area does not have two 
consecutive years of clean data, one of the following requirements must 
be satisfied:
    (i) The emission reduction tests required by Sec. 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 Sec. 93.118 must be 
satisfied using the submitted motor vehicle emissions budget(s) (as 
described in paragraph (d)(1) of this section).
    (e) PM<INF>10 nonattainment and maintenance areas. In addition to 
the criteria listed in Table 1 that are required to be satisfied at all 
times, in PM<INF>10 nonattainment and maintenance areas conformity 
determinations must include a demonstration that the hot spot, budget 
and/or emission reduction tests are satisfied as described in the 
following paragraphs.
    (1) FHWA/FTA projects in PM<INF>10 nonattainment or maintenance 
areas must satisfy the hot spot test required by Sec. 93.116.
    (2) In PM<INF>10 areas the budget test must be satisfied as 
required by Sec. 93.118 for conformity determinations made:
    (i) 45 days after a control strategy implementation plan revision 
or maintenance plan has been submitted to EPA, unless EPA has declared 
the motor vehicle emissions budget inadequate for transportation 
conformity purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (3) In PM<INF>10 nonattainment areas the emission reduction tests 
must be satisfied as required by Sec. 93.119 for conformity 
determinations made:
    (i) During the first 45 days after a control strategy 
implementation plan revision or maintenance plan has been submitted to 
EPA, unless EPA has declared a motor vehicle emissions budget adequate 
for transportation conformity purposes;
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
SIP or a previously submitted control strategy implementation plan 
revision or maintenance plan; or
    (iii) The submitted implementation plan revision is a demonstration 
of impracticability under CAA section 189(a)(1)(B)(ii) and does not 
demonstrate attainment.
    (f) NO<INF>2 nonattainment and maintenance areas. In addition to 
the criteria listed in Table 1 that are required to be satisfied at all 
times, in NO<INF>2 nonattainment and maintenance areas conformity 
determinations must include a demonstration that the budget and/or 
emission reduction tests are satisfied as described in the following 
paragraphs.
    (1) In NO<INF>2 areas the budget test must be satisfied as required 
by Sec. 93.118 for conformity determinations made:
    (i) 45 days after a control strategy implementation plan revision 
or maintenance plan has been submitted to EPA, unless EPA has declared 
the motor vehicle emissions budget inadequate for transportation 
conformity purposes; or
    (ii) After EPA has declared that the motor vehicle emissions budget 
in a submitted control strategy implementation plan revision or 
maintenance plan is adequate for transportation conformity purposes.
    (2) In NO<INF>2 areas the emission reduction tests must be 
satisfied as required by Sec. 93.119 for conformity determinations 
made:
    (i) During the first 45 days after a control strategy 
implementation plan revision or maintenance plan has been submitted to 
EPA, unless EPA has declared a motor vehicle emissions budget adequate 
for transportation conformity purposes; or
    (ii) If EPA has declared the motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan

[[Page 36142]]

inadequate for transportation conformity purposes, and there is no 
previously established motor vehicle emissions budget in the approved 
SIP or a previously submitted control strategy implementation plan 
revision or maintenance plan.
    (g) Isolated rural nonattainment and maintenance areas. This 
paragraph applies to any nonattainment or maintenance area (or portion 
thereof) which does not have a metropolitan transportation plan or TIP 
and whose projects are not part of the emissions analysis of any MPO's 
metropolitan transportation plan or TIP. This paragraph does not apply 
to ``donut'' areas which are outside the metropolitan planning boundary 
and inside the nonattainment/maintenance area boundary.
    (1) FHWA/FTA projects in all isolated rural nonattainment and 
maintenance areas must satisfy the requirements of Secs. 93.110, 
93.111, 93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the 
control strategy implementation plan or maintenance plan for a rural CO 
nonattainment or maintenance area, FHWA/FTA projects must also satisfy 
the requirements of Sec. 93.116(b) (``Localized CO and PM<INF>10 
violations (hot spots)'').
    (2) Isolated rural nonattainment and maintenance areas are subject 
to the budget and/or emission reduction tests as described in 
paragraphs (c)-(f) of this section, with the following modifications:
    (i) When the requirements of Secs. 93.118 and 93.119 apply to 
isolated rural nonattainment and maintenance areas, references to 
``transportation plan'' or ``TIP'' should be taken to mean those 
projects in the statewide transportation plan or statewide TIP which 
are in the rural nonattainment or maintenance area.
    (ii) In isolated rural nonattainment and maintenance areas that are 
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor 
vehicle emissions budget(s) for the years in the timeframe of the 
attainment demonstration or maintenance plan. For years after the 
attainment year (if a maintenance plan has not been submitted) or after 
the last year of the maintenance plan, FHWA/FTA projects must satisfy 
one of the following requirements:
    (A) Sec. 93.118;
    (B) Sec. 93.119 (Emission reductions in areas without motor vehicle 
emissions budgets); or
    (C) Air quality dispersion modeling must demonstrate that the FHWA/
FTA project, in combination with all other regionally significant 
projects expected in the area in the timeframe of the statewide 
transportation plan, will not cause or contribute to any new violation 
of any standard in any areas; increase the frequency or severity of any 
existing violation of any standard in any area; or delay timely 
attainment of any standard or any required interim emission reductions 
or other milestones in any area. Control measures assumed in the 
analysis must be enforceable.
    (iii) The choice of requirements in paragraph (g)(2)(ii) of this 
section and the methodology used to meet the requirements of paragraph 
(g)(2)(ii)(C) of this section must be determined through the 
interagency consultation process required in Sec. 93.105 through which 
the relevant recipients of title 23 U.S.C. or Federal Transit Laws 
funds, the local air quality agency, the State air quality agency, and 
the State DOT should reach consensus about the option and methodology 
selected. EPA and DOT must be consulted through this process as well. 
In the event of unresolved disputes, conflicts may be escalated to the 
Governor consistent with the procedure in Sec. 93.105(d), which applies 
for any State air agency comments on a conformity determination.


Sec. 93.110   Criteria and procedures: Latest planning assumptions.

    (a) The conformity determination, with respect to all other 
applicable criteria in Secs. 93.111-93.119, must be based upon the most 
recent planning assumptions in force at the time of the conformity 
determination. The conformity determination must satisfy the 
requirements of paragraphs (b) through (f) of this section.
    (b) Assumptions must be derived from the estimates of current and 
future population, employment, travel, and congestion most recently 
developed by the MPO or other agency authorized to make such estimates 
and approved by the MPO. The conformity determination must also be 
based on the latest assumptions about current and future background 
concentrations.
    (c) The conformity determination for each transportation plan and 
TIP must discuss how transit operating policies (including fares and 
service levels) and assumed transit ridership have changed since the 
previous conformity determination.
    (d) The conformity determination must include reasonable 
assumptions about transit service and increases in transit fares and 
road and bridge tolls over time.
    (e) The conformity determination must use the latest existing 
information regarding the effectiveness of the TCMs and other 
implementation plan measures which have already been implemented.
    (f) Key assumptions shall be specified and included in the draft 
documents and supporting materials used for the interagency and public 
consultation required by Sec. 93.105.


Sec. 93.111  Criteria and procedures: Latest emissions model.

    (a) The conformity determination must be based on the latest 
emission estimation model available. This criterion is satisfied if the 
most current version of the motor vehicle emissions model specified by 
EPA for use in the preparation or revision of implementation plans in 
that State or area is used for the conformity analysis. Where EMFAC is 
the motor vehicle emissions model used in preparing or revising the 
applicable implementation plan, new versions must be approved by EPA 
before they are used in the conformity analysis.
    (b) EPA will consult with DOT to establish a grace period following 
the specification of any new model.
    (1) The grace period will be no less than three months and no more 
than 24 months after notice of availability is published in the Federal 
Register.
    (2) The length of the grace period will depend on the degree of 
change in the model and the scope of re-planning likely to be necessary 
by MPOs in order to assure conformity. If the grace period will be 
longer than three months, EPA will announce the appropriate grace 
period in the Federal Register.
    (c) Transportation plan and TIP conformity analyses for which the 
emissions analysis was begun during the grace period or before the 
Federal Register notice of availability of the latest emission model 
may continue to use the previous version of the model. Conformity 
determinations for projects may also be based on the previous model if 
the analysis was begun during the grace period or before the Federal 
Register notice of availability, and if the final environmental 
document for the project is issued no more than three years after the 
issuance of the draft environmental document.


Sec. 93.112  Criteria and procedures: Consultation.

    Conformity must be determined according to the consultation 
procedures in this rule and in the applicable implementation plan, and 
according to the public involvement procedures established in 
compliance with 23 CFR part 450. Until the implementation plan revision 
required by Sec. 51.390 of this chapter is fully approved by EPA, the 
conformity

[[Page 36143]]

determination must be made according to Sec. 93.105(a)(2) and 
Sec. 93.105(e) and the requirements of 23 CFR part 450.


Sec. 93.113  Criteria and procedures: Timely implementation of TCMs.

    (a) The transportation plan, TIP, or any FHWA/FTA project which is 
not from a conforming plan and TIP must provide for the timely 
implementation of TCMs from the applicable implementation plan.
    (b) For transportation plans, this criterion is satisfied if the 
following two conditions are met:
    (1) The transportation plan, in describing the envisioned future 
transportation system, provides for the timely completion or 
implementation of all TCMs in the applicable implementation plan which 
are eligible for funding under title 23 U.S.C. or the Federal Transit 
Laws, consistent with schedules included in the applicable 
implementation plan.
    (2) Nothing in the transportation plan interferes with the 
implementation of any TCM in the applicable implementation plan.
    (c) For TIPs, this criterion is satisfied if the following 
conditions are met:
    (1) An examination of the specific steps and funding source(s) 
needed to fully implement each TCM indicates that TCMs which are 
eligible for funding under title 23 U.S.C. or the Federal Transit Laws 
are on or ahead of the schedule established in the applicable 
implementation plan, or, if such TCMs are behind the schedule 
established in the applicable implementation plan, the MPO and DOT have 
determined that past obstacles to implementation of the TCMs have been 
identified and have been or are being overcome, and that all State and 
local agencies with influence over approvals or funding for TCMs are 
giving maximum priority to approval or funding of TCMs over other 
projects within their control, including projects in locations outside 
the nonattainment or maintenance area.
    (2) If TCMs in the applicable implementation plan have previously 
been programmed for Federal funding but the funds have not been 
obligated and the TCMs are behind the schedule in the implementation 
plan, then the TIP cannot be found to conform if the funds intended for 
those TCMs are reallocated to projects in the TIP other than TCMs, or 
if there are no other TCMs in the TIP, if the funds are reallocated to 
projects in the TIP other than projects which are eligible for Federal 
funding intended for air quality improvement projects, e.g., the 
Congestion Mitigation and Air Quality Improvement Program.
    (3) Nothing in the TIP may interfere with the implementation of any 
TCM in the applicable implementation plan.
    (d) For FHWA/FTA projects which are not from a conforming 
transportation plan and TIP, this criterion is satisfied if the project 
does not interfere with the implementation of any TCM in the applicable 
implementation plan.


Sec. 93.114  Criteria and procedures: Currently conforming 
transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous 
transportation plan or TIP expire once the current plan or TIP is found 
to conform by DOT. The conformity determination on a transportation 
plan or TIP will also lapse if conformity is not determined according 
to the frequency requirements specified in Sec. 93.104.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart are satisfied.


Sec. 93.115  Criteria and procedures: Projects from a plan and TIP.

    (a) The project must come from a conforming plan and program. If 
this criterion is not satisfied, the project must satisfy all criteria 
in Table 1 for a project not from a conforming transportation plan and 
TIP. A project is considered to be from a conforming transportation 
plan if it meets the requirements of paragraph (b) of this section and 
from a conforming program if it meets the requirements of paragraph (c) 
of this section. Special provisions for TCMs in an applicable 
implementation plan are provided in paragraph (d) of this section.
    (b) A project is considered to be from a conforming transportation 
plan if one of the following conditions applies:
    (1) For projects which are required to be identified in the 
transportation plan in order to satisfy Sec. 93.106 (``Content of 
transportation plans''), the project is specifically included in the 
conforming transportation plan and the project's design concept and 
scope have not changed significantly from those which were described in 
the transportation plan, or in a manner which would significantly 
impact use of the facility; or
    (2) For projects which are not required to be specifically 
identified in the transportation plan, the project is identified in the 
conforming transportation plan, or is consistent with the policies and 
purpose of the transportation plan and will not interfere with other 
projects specifically included in the transportation plan.
    (c) A project is considered to be from a conforming program if the 
following conditions are met:
    (1) The project is included in the conforming TIP and the design 
concept and scope of the project were adequate at the time of the TIP 
conformity determination to determine its contribution to the TIP's 
regional emissions, and the project design concept and scope have not 
changed significantly from those which were described in the TIP; and
    (2) If the TIP describes a project design concept and scope which 
includes project-level emissions mitigation or control measures, 
written commitments to implement such measures must be obtained from 
the project sponsor and/or operator as required by Sec. 93.125(a) in 
order for the project to be considered from a conforming program. Any 
change in these mitigation or control measures that would significantly 
reduce their effectiveness constitutes a change in the design concept 
and scope of the project.
    (d) TCMs. This criterion is not required to be satisfied for TCMs 
specifically included in an applicable implementation plan.


Sec. 93.116  Criteria and procedures: Localized CO and PM<INF>10 
violations (hot spots).

    (a) This paragraph applies at all times. The FHWA/FTA project must 
not cause or contribute to any new localized CO or PM<INF>10 violations 
or increase the frequency or severity of any existing CO or PM<INF>10 
violations in CO and PM<INF>10 nonattainment and maintenance areas. 
This criterion is satisfied if it is demonstrated that no new local 
violations will be created and the severity or number of existing 
violations will not be increased as a result of the project. The 
demonstration must be performed according to the consultation 
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements 
of Sec. 93.123.
    (b) This paragraph applies for CO nonattainment areas as described 
in Sec. 93.109(d)(1). Each FHWA/FTA project must eliminate or reduce 
the severity and number of localized CO violations in the area 
substantially affected by the project (in CO nonattainment areas).

[[Page 36144]]

This criterion is satisfied with respect to existing localized CO 
violations if it is demonstrated that existing localized CO violations 
will be eliminated or reduced in severity and number as a result of the 
project. The demonstration must be performed according to the 
consultation requirements of Sec. 93.105(c)(1)(i) and the methodology 
requirements of Sec. 93.123.


Sec. 93.117  Criteria and procedures: Compliance with PM<INF>10 control 
measures.

    The FHWA/FTA project must comply with PM<INF>10 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 PM<INF>10 emissions from the construction activities and/or 
normal use and operation associated with the project) that are 
contained in the applicable implementation plan.


Sec. 93.118   Criteria and procedures: Motor vehicle emissions budget.

    (a) The transportation plan, TIP, and project not from a conforming 
transportation plan and TIP must be consistent with the motor vehicle 
emissions budget(s) in the applicable implementation plan (or 
implementation plan submission). This criterion applies as described in 
Sec. 93.109 (c)-(g). This criterion is satisfied if it is demonstrated 
that emissions of the pollutants or pollutant precursors described in 
paragraph (c) of this section are less than or equal to the motor 
vehicle emissions budget(s) established in the applicable 
implementation plan or implementation plan submission.
    (b) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each year for which the applicable (and/or submitted) 
implementation plan specifically establishes motor vehicle emissions 
budget(s), for the last year of the transportation plan's forecast 
period, and for any intermediate years as necessary so that the years 
for which consistency is demonstrated are no more than ten years apart, 
as follows:
    (1) Until a maintenance plan is submitted:
    (i) Emissions in each year (such as milestone years and the 
attainment year) for which the control strategy implementation plan 
revision establishes motor vehicle emissions budget(s) must be less 
than or equal to that year's motor vehicle emissions budget(s); and
    (ii) Emissions in years for which no motor vehicle emissions 
budget(s) are specifically established must be less than or equal to 
the motor vehicle emissions budget(s) established for the most recent 
prior year. For example, emissions in years after the attainment year 
for which the SIP does not establish a budget must be less than or 
equal to the motor vehicle emissions budget(s) for the attainment year.
    (2) When a maintenance plan has been submitted:
    (i) Emissions must be less than or equal to the motor vehicle 
emissions budget(s) established for the last year of the maintenance 
plan, and for any other years for which the maintenance plan 
establishes motor vehicle emissions budgets. If the maintenance plan 
does not establish motor vehicle emissions budgets for any years other 
than the last year of the maintenance plan, the demonstration of 
consistency with the motor vehicle emissions budget(s) must be 
accompanied by a qualitative finding that there are no factors which 
would cause or contribute to a new violation or exacerbate an existing 
violation in the years before the last year of the maintenance plan. 
The interagency consultation process required by Sec. 93.105 shall 
determine what must be considered in order to make such a finding;
    (ii) For years after the last year of the maintenance plan, 
emissions must be less than or equal to the maintenance plan's motor 
vehicle emissions budget(s) for the last year of the maintenance plan; 
and
    (iii) If an approved control strategy implementation plan has 
established motor vehicle emissions budgets for years in the timeframe 
of the transportation plan, emissions in these years must be less than 
or equal to the control strategy implementation plan's motor vehicle 
emissions budget(s) for these years.
    (c) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each pollutant or pollutant precursor in 
Sec. 93.102(b)(3) for which the area is in nonattainment or maintenance 
and for which the applicable implementation plan (or implementation 
plan submission) establishes a motor vehicle emissions budget.
    (d) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated by including emissions from the entire transportation 
system, including all regionally significant projects contained in the 
transportation plan and all other regionally significant highway and 
transit projects expected in the nonattainment or maintenance area in 
the timeframe of the transportation plan.
    (1) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated with a regional emissions analysis that meets the 
requirements of Secs. 93.122 and 93.105(c)(1)(i).
    (2) The regional emissions analysis may be performed for any years 
in the timeframe of the transportation plan provided they are not more 
than ten years apart and provided the analysis is performed for the 
attainment year (if it is in the timeframe of the transportation plan) 
and the last year of the plan's forecast period. Emissions in years for 
which consistency with motor vehicle emissions budgets must be 
demonstrated, as required in paragraph (b) of this section, may be 
determined by interpolating between the years for which the regional 
emissions analysis is performed.
    (e) Motor vehicle emissions budgets in submitted control strategy 
implementation plan revisions and submitted maintenance plans.
    (1) Consistency with the motor vehicle emissions budgets in 
submitted control strategy implementation plan revisions or maintenance 
plans must be demonstrated if EPA has declared the motor vehicle 
emissions budget(s) adequate for transportation conformity purposes, or 
beginning 45 days after the control strategy implementation plan 
revision or maintenance plan has been submitted (unless EPA has 
declared the motor vehicle emissions budget(s) inadequate for 
transportation conformity purposes). However, submitted implementation 
plans do not supersede the motor vehicle emissions budgets in approved 
implementation plans for the years addressed by the approved 
implementation plan.
    (2) If EPA has declared an implementation plan submission's motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes, the inadequate budget(s) shall not be used to satisfy the 
requirements of this section. Consistency with the previously 
established motor vehicle emissions budget(s) must be demonstrated. If 
there are no previous approved implementation plans or implementation 
plan submissions with motor vehicle emissions budgets, the emission 
reduction tests required by Sec. 93.119 must be satisfied.
    (3) If EPA declares an implementation plan submission's motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes more than 45 days after its submission to EPA, and conformity 
of a transportation plan or TIP has already

[[Page 36145]]

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 Secs. 93.114 and 93.115, 
which require a currently conforming transportation plan and TIP to be 
in place at the time of a project's conformity determination and that 
projects come from a conforming transportation plan and TIP.
    (4) When the motor vehicle emissions budget(s) used to satisfy the 
requirements of this section are established by an implementation plan 
submittal that has not yet been approved or disapproved by EPA, the MPO 
and DOT's conformity determination will be deemed to be a statement 
that the MPO and DOT are not aware of any information that would 
indicate that emissions consistent with the motor vehicle emissions 
budget will cause or contribute to any new violation of any standard; 
increase the frequency or severity of any existing violation of any 
standard; or delay timely attainment of any standard or any required 
interim emission reductions or other milestones.


Sec. 93.119   Criteria and procedures: Emission reductions in areas 
without motor vehicle emissions budgets.

    (a) The transportation plan, TIP, and project not from a conforming 
transportation plan and TIP must contribute to emissions reductions. 
This criterion applies as described in Sec. 93.109 (c)-(g). It applies 
to the net effect of the action (transportation plan, TIP, or project 
not from a conforming transportation plan and TIP) on motor vehicle 
emissions from the entire transportation system.
    (b) This criterion may be met in moderate and above ozone 
nonattainment areas that are subject to the reasonable further progress 
requirements of Clean Air Act section 182(b)(1) and in moderate with 
design value greater than 12.7 ppm and serious CO nonattainment areas 
if a regional emissions analysis that satisfies the requirements of 
Sec. 93.12 2 and paragraphs (e) through (h) of this section 
demonstrates that for each analysis year and for each of the pollutants 
described in paragraph (d) of this section:
    (1) The emissions predicted in the ``Action'' scenario are less 
than the emissions predicted in the ``Baseline'' scenario, and this can 
be reasonably expected to be true in the periods between the analysis 
years; and
    (2) The emissions predicted in the ``Action'' scenario are lower 
than 1990 emissions by any nonzero amount.
    (c) This criterion may be met in PM<INF>10 and NO<INF>2 
nonattainment areas; marginal and below ozone nonattainment areas and 
other ozone nonattainment areas that are not subject to the reasonable 
further progress requirements of Clean Air Act section 182(b)(1), and 
moderate with design value less than 12.7 ppm and below CO 
nonattainment areas if a regional emissions analysis that satisfies the 
requirements of Sec. 93.122 and paragraphs (e) through (h) of this 
section demonstrates that for each analysis year and for each of the 
pollutants described in paragraph (d) of this section, one of the 
following requirements is met:
    (1) The emissions predicted in the ``Action'' scenario are less 
than the emissions predicted in the ``Baseline'' scenario, and this can 
be reasonably expected to be true in the periods between the analysis 
years; or
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than baseline emissions. Baseline emissions are those estimated 
to have occurred during calendar year 1990, unless the conformity 
implementation plan revision required by Sec. 51.390 of this chapter 
defines the baseline emissions for a PM<INF>10 area to be those 
occurring in a different calendar year for which a baseline emissions 
inventory was developed for the purpose of developing a control 
strategy implementation plan.
    (d) Pollutants. The regional emissions analysis must be performed 
for the following pollutants:
    (1) VOC in ozone nonattainment areas;
    (2) NO<INF>X in ozone nonattainment areas, unless the EPA 
Administrator determines that additional reductions of NO<INF>X would 
not contribute to attainment;
    (3) CO in CO nonattainment areas;
    (4) PM<INF>10 in PM<INF>10 areas;
    (5) Transportation-related precursors of PM<INF>10 in PM<INF>10 
nonattainment areas if the EPA Regional Administrator or the director 
of the State air agency has made a finding that such precursor 
emissions from within the nonattainment area are a significant 
contributor to the PM<INF>10 nonattainment problem and has so notified 
the MPO and DOT; and
    (6) NO<INF>X in NO<INF>2 nonattainment areas.
    (e) Analysis years. The regional emissions analysis must be 
performed for analysis years that are no more than ten years apart. The 
first analysis year must be no more than five years beyond the year in 
which the conformity determination is being made. The last year of 
transportation plan's forecast period must also be an analysis year.
    (f) ``Baseline'' scenario. The regional emissions analysis required 
by paragraphs (b) and (c)(1) of this section must estimate the 
emissions that would result from the ``Baseline'' scenario in each 
analysis year. The ``Baseline'' scenario must be defined for each of 
the analysis years. The ``Baseline'' scenario is the future 
transportation system that will result from current programs, including 
the following (except that exempt projects listed in Sec. 93.126 and 
projects exempt from regional emissions analysis as listed in 
Sec. 93.127 need not be explicitly considered):
    (1) All in-place regionally significant highway and transit 
facilities, services and activities;
    (2) All ongoing travel demand management or transportation system 
management activities; and
    (3) Completion of all regionally significant projects, regardless 
of funding source, which are currently under construction or are 
undergoing right-of-way acquisition (except for hardship acquisition 
and protective buying); come from the first year of the previously 
conforming transportation plan and/or TIP; or have completed the NEPA 
process.
    (g) ``Action'' scenario. The regional emissions analysis must 
estimate the emissions that would result from the ``Action'' scenario 
in each analysis year. The ``Action'' scenario must be defined for each 
of the analysis years. The ``Action'' scenario is the transportation 
system that would result from the implementation of the proposed action 
(transportation plan, TIP, or project not from a conforming 
transportation plan and TIP) and all other expected regionally 
significant projects in the nonattainment area. The ``Action'' scenario 
must include the following (except that exempt projects listed in 
Sec. 93.126 and projects exempt from regional emissions analysis as 
listed in Sec. 93.127 need not be explicitly considered):
    (1) All facilities, services, and activities in the ``Baseline'' 
scenario;
    (2) Completion of all TCMs and regionally significant projects 
(including facilities, services, and activities) specifically 
identified in the proposed transportation plan which will be 
operational or in effect in the analysis year, except that regulatory 
TCMs may not be assumed to begin at a future time unless the regulation 
is already adopted by the enforcing jurisdiction or the TCM is 
identified in the applicable implementation plan;
    (3) All travel demand management programs and transportation system 
management activities known to the MPO, but not included in the 
applicable implementation plan or utilizing any Federal funding or 
approval, which have been fully adopted and/or funded by the enforcing 
jurisdiction or

[[Page 36146]]

sponsoring agency since the last conformity determination;
    (4) The incremental effects of any travel demand management 
programs and transportation system management activities known to the 
MPO, but not included in the applicable implementation plan or 
utilizing any Federal funding or approval, which were adopted and/or 
funded prior to the date of the last conformity determination, but 
which have been modified since then to be more stringent or effective;
    (5) Completion of all expected regionally significant highway and 
transit projects which are not from a conforming transportation plan 
and TIP; and
    (6) Completion of all expected regionally significant non-FHWA/FTA 
highway and transit projects that have clear funding sources and 
commitments leading toward their implementation and completion by the 
analysis year.
    (h) Projects not from a conforming transportation plan and TIP. For 
the regional emissions analysis required by paragraphs (b) and (c)(1) 
of this section, if the project which is not from a conforming 
transportation plan and TIP is a modification of a project currently in 
the plan or TIP, the ``Baseline'' scenario must include the project 
with its original design concept and scope, and the ``Action'' scenario 
must include the project with its new design concept and scope.


Sec. 93.120  Consequences of control strategy implementation plan 
failures.

    (a) Disapprovals. (1) If EPA disapproves any submitted control 
strategy implementation plan revision (with or without a protective 
finding), the conformity status of the transportation plan and TIP 
shall lapse on the date that highway sanctions as a result of the 
disapproval are imposed on the nonattainment area under section 
179(b)(1) of the Clean Air Act. No new transportation plan, TIP, or 
project may be found to conform until another control strategy 
implementation plan revision fulfilling the same Clean Air Act 
requirements is submitted and conformity to this submission is 
determined.
    (2) If EPA disapproves a submitted control strategy implementation 
plan revision without making a protective finding, then beginning 120 
days after such disapproval, only projects in the first three years of 
the currently conforming transportation plan and TIP may be found to 
conform. This means that beginning 120 days after disapproval without a 
protective finding, no transportation plan, TIP, or project not in the 
first three years of the currently conforming plan and TIP may be found 
to conform until another control strategy implementation plan revision 
fulfilling the same Clean Air Act requirements is submitted and 
conformity to this submission is determined. During the first 120 days 
following EPA's disapproval without a protective finding, 
transportation plan, TIP, and project conformity determinations shall 
be made using the motor vehicle emissions budget in the disapproved 
control strategy implementation plan, unless another control strategy 
implementation plan revision has been submitted and its motor vehicle 
emissions budget applies for transportation conformity purposes, 
pursuant to Sec. 93.109.
    (b) Failure to submit and incompleteness. In areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit a 
control strategy implementation plan or submission of an incomplete 
control strategy implementation plan revision (either of which 
initiates the sanction process under Clean Air Act sections 179 or 
110(m)), the conformity status of the transportation plan and TIP shall 
lapse on the date that highway sanctions are imposed on the 
nonattainment area for such failure under section 179(b)(1) of the 
Clean Air Act, unless the failure has been remedied and acknowledged by 
a letter from the EPA Regional Administrator.
    (c) Federal implementation plans. If EPA promulgates a Federal 
implementation plan that contains motor vehicle emissions budget(s) as 
a result of a State failure, the conformity lapse imposed by this 
section because of that State failure is removed.


Sec. 93.121  Requirements for adoption or approval of projects by other 
recipients of funds designated under title 23 U.S.C. or the Federal 
Transit Laws.

    (a) Except as provided in paragraph (b) of this section, no 
recipient of Federal funds designated under title 23 U.S.C. or the 
Federal Transit Laws shall adopt or approve a regionally significant 
highway or transit project, regardless of funding source, unless the 
recipient finds that the requirements of one of the following 
paragraphs are met:
    (1) The project was included in the regional emissions analysis 
supporting the most recent transportation plan and TIP conformity 
determination (even if conformity status is currently lapsed), and the 
project's design concept and scope has not changed significantly from 
those analyses; or
    (2) There is a currently conforming transportation plan and TIP, 
and a new regional emissions analysis including the project and the 
currently conforming transportation plan and TIP demonstrates that the 
transportation plan and TIP would still conform if the project were 
implemented (consistent with the requirements of Secs. 93.118 and/or 
93.119 for a project not from a conforming transportation plan and 
TIP).
    (b) In isolated rural nonattainment and maintenance areas subject 
to Sec. 93.109(g), no recipient of Federal funds designated under title 
23 U.S.C. or the Federal Transit Laws shall adopt or approve a 
regionally significant highway or transit project, regardless of 
funding source, unless the recipient finds that the requirements of one 
of the following paragraphs are met:
    (1) The project was included in the regional emissions analysis 
supporting the most recent conformity determination for the portion of 
the statewide transportation plan and TIP which are in the 
nonattainment or maintenance area, and the project's design concept and 
scope has not changed significantly; or
    (2) A new regional emissions analysis including the project and all 
other regionally significant projects expected in the nonattainment or 
maintenance area demonstrates that those projects in the statewide 
transportation plan and statewide TIP which are in the nonattainment or 
maintenance area would still conform if the project were implemented 
(consistent with the requirements of Secs. 93.118 and/or 93.119 for 
projects not from a conforming transportation plan and TIP).


Sec. 93.122  Procedures for determining regional transportation-related 
emissions.

    (a) General requirements. (1) The regional emissions analysis 
required by Secs. 93.118 and 93.119 for the transportation plan, TIP, 
or project not from a conforming plan and TIP must include all 
regionally significant projects expected in the nonattainment or 
maintenance area. The analysis shall include FHWA/FTA projects proposed 
in the transportation plan and TIP and all other regionally significant 
projects which are disclosed to the MPO as required by Sec. 93.105. 
Projects which are not regionally significant are not required to be 
explicitly modeled, but vehicles miles traveled (VMT) from such 
projects must be estimated in accordance with reasonable professional 
practice. The effects of TCMs and similar projects that are not 
regionally significant may also be estimated in accordance with 
reasonable professional practice.

[[Page 36147]]

    (2) The emissions analysis may not include for emissions reduction 
credit any TCMs or other measures in the applicable implementation plan 
which have been delayed beyond the scheduled date(s) until such time as 
their implementation has been assured. If the measure has been 
partially implemented and it can be demonstrated that it is providing 
quantifiable emission reduction benefits, the emissions analysis may 
include that emissions reduction credit.
    (3) Emissions reduction credit from projects, programs, or 
activities which require a regulatory action in order to be implemented 
may not be included in the emissions analysis unless:
    (i) The regulatory action is already adopted by the enforcing 
jurisdiction;
    (ii) The project, program, or activity is included in the 
applicable implementation plan;
    (iii) The control strategy implementation plan submission or 
maintenance plan submission that establishes the motor vehicle 
emissions budget(s) for the purposes of Sec. 93.118 contains a 
commitment to the project, program, or activity by the agency with 
authority to implement it; or
    (iv) EPA has approved an opt-in to a Federally enforced program, 
EPA has promulgated the program (if the control program is a Federal 
responsibility, such as vehicle tailpipe standards), or the Clean Air 
Act requires the program without need for individual State action and 
without any discretionary authority for EPA to set its stringency, 
delay its effective date, or not implement the program.
    (4) Emissions reduction credit from control measures that are not 
included in the transportation plan and TIP and that do not require a 
regulatory action in order to be implemented may not be included in the 
emissions analysis unless the conformity determination includes written 
commitments to implementation from the appropriate entities.
    (i) Persons or entities voluntarily committing to control measures 
must comply with the obligations of such commitments.
    (ii) The conformity implementation plan revision required in 
Sec. 51.390 of this chapter must provide that written commitments to 
control measures that are not included in the transportation plan and 
TIP must be obtained prior to a conformity determination and that such 
commitments must be fulfilled.
    (5) A regional emissions analysis for the purpose of satisfying the 
requirements of Sec. 93.119 must make the same assumptions in both the 
``Baseline'' and ``Action'' scenarios regarding control measures that 
are external to the transportation system itself, such as vehicle 
tailpipe or evaporative emission standards, limits on gasoline 
volatility, vehicle inspection and maintenance programs, and oxygenated 
or reformulated gasoline or diesel fuel.
    (6) The ambient temperatures used for the regional emissions 
analysis shall be consistent with those used to establish the emissions 
budget in the applicable implementation plan. All other factors, for 
example the fraction of travel in a hot stabilized engine mode, must be 
consistent with the applicable implementation plan, unless modified 
after interagency consultation according to Sec. 93.105(c)(1)(i) to 
incorporate additional or more geographically specific information or 
represent a logically estimated trend in such factors beyond the period 
considered in the applicable implementation plan.
    (7) Reasonable methods shall be used to estimate nonattainment area 
vehicle miles traveled on off-network roadways within the urban 
transportation planning area, and on roadways outside the urban 
transportation planning area.
    (b) Regional emissions analysis in serious, severe, and extreme 
ozone nonattainment areas and serious CO nonattainment areas must meet 
the requirements of paragraphs (b) (1) and (2) of this section if their 
metropolitan planning area contains an urbanized area population over 
200,000.
    (1) By January 1, 1997, estimates of regional transportation-
related emissions used to support conformity determinations must be 
made at a minimum using network modeling according to procedures and 
methods that are available and in practice and supported by current and 
available documentation. These procedures, methods, and practices are 
available from DOT and will be updated periodically. Areas performing 
network modeling with some or all procedures and methods that are 
available and in practice elsewhere as of January 1, 1995, must 
continue to do so.
    (2) Reasonable methods in accordance with good practice must be 
used to estimate traffic speeds and delays in a manner that is 
sensitive to the estimated volume of travel on each roadway segment 
represented in the network model.
    (3) Highway Performance Monitoring System (HPMS) estimates of VMT 
shall be considered the primary measure of VMT within the portion of 
the nonattainment or maintenance area and for the functional classes of 
roadways included in HPMS, for urban areas which are sampled on a 
separate urban area basis. For areas with network models, a factor (or 
factors) may be developed to reconcile and calibrate the network-based 
model estimates of VMT in the base year of its validation to the HPMS 
estimates for the same period. These factors may then be applied to 
model estimates of future VMT. In this factoring process, consideration 
will be given to differences in the facility coverage of the HPMS and 
the modeled network description. Locally developed count-based programs 
and other departures from these procedures are permitted subject to the 
interagency consultation procedures of Sec. 93.105(c)(1)(i).
    (4) A transportation plan and TIP may satisfy the requirements of 
Secs. 93.118 and 93.119 based on an alternate emissions analysis that 
does not use network modeling, if Federal, State, and local air and 
transportation agencies concur in the emissions analysis approach, and 
if the transportation plan and TIP in question is a revision of the 
previously conforming transportation plan and TIP to include a limited 
number of additional projects. This paragraph will not be effective 
until EPA and DOT review and evaluate suggested alternate methods and 
approaches for determining the regional emissions impact of projects 
and make documentation of this review and evaluation publicly 
available.
    (5) A conformity determination based on an alternate emissions 
analysis as described in paragraph (b)(4) of this section would not 
fulfill the requirements of Sec. 93.104(b)(3) and Sec. 93.104(c)(3) 
regarding frequency of conformity determinations. Conformity must be 
determined according to all the otherwise applicable criteria and 
procedures of this subpart within three years of the last determination 
which did not rely on paragraph (b)(4) of this section.
    (c) In all areas not otherwise subject to paragraph (b) of this 
section, regional emissions analyses must use those procedures 
described in paragraph (b) of this section if the use of those 
procedures has been the previous practice of the MPO. Otherwise, areas 
not subject to paragraph (b) of this section may estimate regional 
emissions using any appropriate methods that account for VMT growth by, 
for example, extrapolating historical VMT or projecting future VMT by 
considering growth in population and historical growth trends for 
vehicle miles traveled per person. These methods must also consider 
future economic activity, transit alternatives, and transportation 
system policies.

[[Page 36148]]

    (d) PM<INF>10 from construction-related fugitive dust.
    (1) For areas in which the implementation plan does not identify 
construction-related fugitive PM<INF>10 as a contributor to the 
nonattainment problem, the fugitive PM<INF>10 emissions associated with 
highway and transit project construction are not required to be 
considered in the regional emissions analysis.
    (2) In PM<INF>10 nonattainment and maintenance areas with 
implementation plans which identify construction-related fugitive 
PM<INF>10 as a contributor to the nonattainment problem, the regional 
PM<INF>10 emissions analysis shall consider construction-related 
fugitive PM<INF>10 and shall account for the level of construction 
activity, the fugitive PM<INF>10 control measures in the applicable 
implementation plan, and the dust-producing capacity of the proposed 
activities.
    (e) Reliance on previous regional emissions analysis. (1) The TIP 
may be demonstrated to satisfy the requirements of Sec. 93.118 (``Motor 
vehicle emissions budget'') or Sec. 93.119 (``Emission reductions in 
areas without motor vehicle emissions budgets'') without new regional 
emissions analysis if the regional emissions analysis already performed 
for the plan also applies to the TIP. This requires a demonstration 
that:
    (i) The TIP contains all projects which must be started in the 
TIP's timeframe in order to achieve the highway and transit system 
envisioned by the transportation plan;
    (ii) All TIP projects which are regionally significant are included 
in the transportation plan with design concept and scope adequate to 
determine their contribution to the transportation plan's regional 
emissions at the time of the transportation plan's conformity 
determination; and
    (iii) The design concept and scope of each regionally significant 
project in the TIP is not significantly different from that described 
in the transportation plan.
    (2) A project which is not from a conforming transportation plan 
and a conforming TIP may be demonstrated to satisfy the requirements of 
Sec. 93.118 or Sec. 93.119 without additional regional emissions 
analysis if allocating funds to the project will not delay the 
implementation of projects in the transportation plan or TIP which are 
necessary to achieve the highway and transit system envisioned by the 
transportation plan, and if the project is either:
    (i) Not regionally significant; or
    (ii) Included in the conforming transportation plan (even if it is 
not specifically included in the latest conforming TIP) with design 
concept and scope adequate to determine its contribution to the 
transportation plan's regional emissions at the time of the 
transportation plan's conformity determination, and the design concept 
and scope of the project is not significantly different from that 
described in the transportation plan.


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

    (a) CO hot-spot analysis. (1) The demonstrations required by 
Sec. 93.116 (``Localized CO and PM<INF>10 violations'') must be based 
on quantitative analysis using the applicable air quality models, data 
bases, and other requirements specified in 40 CFR part 51 Appendix W 
(``Guideline on Air Quality Models (Revised)'' (1988), supplement A 
(1987) and supplement B (1993), EPA publication no. 450/2-78-027R). 
These procedures shall be used in the following cases, unless different 
procedures are developed through the interagency consultation process 
required in Sec. 93.105 and approved by the EPA Regional Administrator:
    (i) For projects in or affecting locations, areas, or categories of 
sites which are identified in the applicable implementation plan as 
sites of violation or possible violation;
    (ii) For projects affecting intersections that are at Level-of-
Service D, E, or F, or those that will change to Level-of-Service D, E, 
or F because of increased traffic volumes related to the project;
    (iii) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with highest 
traffic volumes, as identified in the applicable implementation plan; 
and
    (iv) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with the worst 
level of service, as identified in the applicable implementation plan.
    (2) In cases other than those described in paragraph (a)(1) of this 
section, the demonstrations required by Sec. 93.116 may be based on 
either:
    (i) Quantitative methods that represent reasonable and common 
professional practice; or
    (ii) A qualitative consideration of local factors, if this can 
provide a clear demonstration that the requirements of Sec. 93.116 are 
met.
    (b) PM<INF>10 hot-spot analysis: (1) The hot-spot demonstration 
required by Sec. 93.116 must be based on quantitative analysis methods 
for the following types of projects:
    (i) Projects which are located at sites at which violations have 
been verified by monitoring;
    (ii) Projects which are located at sites which have vehicle and 
roadway emission and dispersion characteristics that are essentially 
identical to those of sites with verified violations (including sites 
near one at which a violation has been monitored); and
    (iii) New or expanded bus and rail terminals and transfer points 
which increase the number of diesel vehicles congregating at a single 
location require hot-spot analysis.
    (2) Where quantitative analysis methods are not required, the 
demonstration required by Sec. 93.116 may be based on a qualitative 
consideration of local factors.
    (3) The identification of the sites described in paragraph (b)(1) 
(i) and (ii) of this section, and other cases where quantitative 
methods are appropriate, shall be determined through the interagency 
consultation process required in Sec. 93.105. DOT may choose to make a 
categorical conformity determination on bus and rail terminals or 
transfer points based on appropriate modeling of various terminal 
sizes, configurations, and activity levels.
    (4) The requirements for quantitative analysis contained in 
paragraph (b) of this section will not take effect until EPA releases 
modeling guidance on this subject and announces in the Federal Register 
that these requirements are in effect.
    (c) General requirements. (1) Estimated pollutant concentrations 
must be based on the total emissions burden which may result from the 
implementation of the project, summed together with future background 
concentrations. The total concentration must be estimated and analyzed 
at appropriate receptor locations in the area substantially affected by 
the project.
    (2) Hot-spot analyses must include the entire project, and may be 
performed only after the major design features which will significantly 
impact concentrations have been identified. The future background 
concentration should be estimated by multiplying current background by 
the ratio of future to current traffic and the ratio of future to 
current emission factors.
    (3) Hot-spot analysis assumptions must be consistent with those in 
the regional emissions analysis for those inputs which are required for 
both analyses.
    (4) PM<INF>10 or CO mitigation or control measures shall be assumed 
in the hot-

[[Page 36149]]

spot analysis only where there are written commitments from the project 
sponsor and/or operator to implement such measures, as required by 
Sec. 93.125(a).
    (5) CO and PM<INF>10 hot-spot analyses are not required to consider 
construction-related activities which cause temporary increases in 
emissions. Each site which is affected by construction-related 
activities shall be considered separately, using established 
``Guideline'' methods. Temporary increases are defined as those which 
occur only during the construction phase and last five years or less at 
any individual site.


Sec. 93.124  Using the motor vehicle emissions budget in the applicable 
implementation plan (or implementation plan submission).

    (a) In interpreting an applicable implementation plan (or 
implementation plan submission) with respect to its motor vehicle 
emissions budget(s), the MPO and DOT may not infer additions to the 
budget(s) that are not explicitly intended by the implementation plan 
(or submission). Unless the implementation plan explicitly quantifies 
the amount by which motor vehicle emissions could be higher while still 
allowing a demonstration of compliance with the milestone, attainment, 
or maintenance requirement and explicitly states an intent that some or 
all of this additional amount should be available to the MPO and DOT in 
the emissions budget for conformity purposes, the MPO may not interpret 
the budget to be higher than the implementation plan's estimate of 
future emissions. This applies in particular to applicable 
implementation plans (or submissions) which demonstrate that after 
implementation of control measures in the implementation plan:
    (1) Emissions from all sources will be less than the total 
emissions that would be consistent with a required demonstration of an 
emissions reduction milestone;
    (2) Emissions from all sources will result in achieving attainment 
prior to the attainment deadline and/or ambient concentrations in the 
attainment deadline year will be lower than needed to demonstrate 
attainment; or
    (3) Emissions will be lower than needed to provide for continued 
maintenance.
    (b) If an applicable implementation plan submitted before November 
24, 1993, demonstrates that emissions from all sources will be less 
than the total emissions that would be consistent with attainment and 
quantifies that ``safety margin,'' the State may submit a SIP revision 
which assigns some or all of this safety margin to highway and transit 
mobile sources for the purposes of conformity. Such a SIP revision, 
once it is endorsed by the Governor and has been subject to a public 
hearing, may be used for the purposes of transportation conformity 
before it is approved by EPA.
    (c) A conformity demonstration shall not trade emissions among 
budgets which the applicable implementation plan (or implementation 
plan submission) allocates for different pollutants or precursors, or 
among budgets allocated to motor vehicles and other sources, without a 
SIP revision or a SIP which establishes mechanisms for such trades.
    (d) If the applicable implementation plan (or implementation plan 
submission) estimates future emissions by geographic subarea of the 
nonattainment area, the MPO and DOT are not required to consider this 
to establish subarea budgets, unless the applicable implementation plan 
(or implementation plan submission) explicitly indicates an intent to 
create such subarea budgets for the purposes of conformity.
    (e) If a nonattainment area includes more than one MPO, the SIP may 
establish motor vehicle emissions budgets for each MPO, or else the 
MPOs must collectively make a conformity determination for the entire 
nonattainment area.


Sec. 93.125  Enforceability of design concept and scope and project-
level mitigation and control measures.

    (a) Prior to determining that a transportation project is in 
conformity, the MPO, other recipient of funds designated under title 23 
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the 
project sponsor and/or operator written commitments to implement in the 
construction of the project and operation of the resulting facility or 
service any project-level mitigation or control measures which are 
identified as conditions for NEPA process completion with respect to 
local PM<INF>10 or CO impacts. Before a conformity determination is 
made, written commitments must also be obtained for project-level 
mitigation or control measures which are conditions for making 
conformity determinations for a transportation plan or TIP and are 
included in the project design concept and scope which is used in the 
regional emissions analysis required by Secs. 93.118 (``Motor vehicle 
emissions budget'') and 93.119 (``Emission reductions in areas without 
motor vehicle emissions budgets'') or used in the project-level hot-
spot analysis required by Sec. 93.116.
    (b) Project sponsors voluntarily committing to mitigation measures 
to facilitate positive conformity determinations must comply with the 
obligations of such commitments.
    (c) The implementation plan revision required in Sec. 51.390 of 
this chapter shall provide that written commitments to mitigation 
measures must be obtained prior to a positive conformity determination, 
and that project sponsors must comply with such commitments.
    (d) If the MPO or project sponsor believes the mitigation or 
control measure is no longer necessary for conformity, the project 
sponsor or operator may be relieved of its obligation to implement the 
mitigation or control measure if it can demonstrate that the applicable 
hot-spot requirements of Sec. 93.116, emission budget requirements of 
Sec. 93.118, and emission reduction requirements of Sec. 93.119 are 
satisfied without the mitigation or control measure, and so notifies 
the agencies involved in the interagency consultation process required 
under Sec. 93.105. The MPO and DOT must find that the transportation 
plan and TIP still satisfy the applicable requirements of Secs. 93.118 
and/or 93.119 and that the project still satisfies the requirements of 
Sec. 93.116, and therefore that the conformity determinations for the 
transportation plan, TIP, and project are still valid. This finding is 
subject to the applicable public consultation requirements in 
Sec. 93.105(e) for conformity determinations for projects.


Sec. 93.126  Exempt projects.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 2 are exempt from the 
requirement to determine conformity. Such projects may proceed toward 
implementation even in the absence of a conforming transportation plan 
and TIP. A particular action of the type listed in Table 2 is not 
exempt if the MPO in consultation with other agencies (see 
Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a 
highway project) or the FTA (in the case of a transit project) concur 
that it has potentially adverse emissions impacts for any reason. 
States and MPOs must ensure that exempt projects do not interfere with 
TCM implementation.

[[Page 36150]]



                        Table 2.--Exempt Projects                       
------------------------------------------------------------------------
                                                                        
-------------------------------------------------------------------------
                                 Safety                                 
                                                                        
------------------------------------------------------------------------
Railroad/highway crossing.                                              
Hazard elimination program.                                             
Safer non-Federal-aid system roads.                                     
Shoulder improvements.                                                  
Increasing sight distance.                                              
Safety improvement program.                                             
Traffic control devices and operating assistance other than             
 signalization projects.                                                
Railroad/highway crossing warning devices.                              
Guardrails, median barriers, crash cushions.                            
Pavement resurfacing and/or rehabilitation.                             
Pavement marking demonstration.                                         
Emergency relief (23 U.S.C. 125).                                       
Fencing.                                                                
Skid treatments.                                                        
Safety roadside rest areas.                                             
Adding medians.                                                         
Truck climbing lanes outside the urbanized area.                        
Lighting improvements.                                                  
Widening narrow pavements or reconstructing bridges (no additional      
 travel lanes).                                                         
Emergency truck pullovers.                                              
                                                                        
------------------------------------------------------------------------
                              Mass Transit                              
                                                                        
------------------------------------------------------------------------
Operating assistance to transit agencies.                               
Purchase of support vehicles.                                           
Rehabilitation of transit vehicles.<SUP>1                                    
Purchase of office, shop, and operating equipment for existing          
 facilities.                                                            
Purchase of operating equipment for vehicles (e.g., radios, fareboxes,  
 lifts, etc.).                                                          
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.        
Reconstruction or renovation of transit buildings and structures (e.g., 
 rail or bus buildings, storage and maintenance facilities, stations,   
 terminals, and ancillary structures).                                  
Rehabilitation or reconstruction of track structures, track, and        
 trackbed in existing rights-of-way.                                    
Purchase of new buses and rail cars to replace existing vehicles or for 
 minor expansions of the fleet.<SUP>1                                        
Construction of new bus or rail storage/maintenance facilities          
 categorically excluded in 23 CFR part 771.                             
                                                                        
------------------------------------------------------------------------
                               Air Quality                              
                                                                        
------------------------------------------------------------------------
Continuation of ride-sharing and van-pooling promotion activities at    
 current levels.                                                        
Bicycle and pedestrian facilities.                                      
                                                                        
------------------------------------------------------------------------
                                  Other                                 
                                                                        
------------------------------------------------------------------------
Specific activities which do not involve or lead directly to            
 construction, such as:                                                 
    Planning and technical studies.                                     
    Grants for training and research programs.                          
    Planning activities conducted pursuant to titles 23 and 49 U.S.C.   
    Federal-aid systems revisions.                                      
Engineering to assess social, economic, and environmental effects of the
 proposed action or alternatives to that action.                        
Noise attenuation.                                                      
Emergency or hardship advance land acquisitions (23 CFR 712.204(d)).    
Acquisition of scenic easements.                                        
Plantings, landscaping, etc.                                            
Sign removal.                                                           
Directional and informational signs.                                    
Transportation enhancement activities (except rehabilitation and        
 operation of historic transportation buildings, structures, or         
 facilities).                                                           
Repair of damage caused by natural disasters, civil unrest, or terrorist
 acts, except projects involving substantial functional, locational or  
 capacity changes.                                                      
------------------------------------------------------------------------
\1\ In PM<INF>10 nonattainment or maintenance areas, such projects are exempt
  only if they are in compliance with control measures in the applicable
  implementation plan.                                                  

Sec. 93.127  Projects exempt from regional emissions analyses.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 3 are exempt from 
regional emissions analysis requirements. The local effects of these 
projects with respect to CO or PM<INF>10 concentrations must be 
considered to determine if a hot-spot analysis is required prior to 
making a project-level conformity determination. These projects may 
then proceed to the project development process even in the absence of 
a conforming transportation plan and TIP. A particular action of the 
type listed in Table 3 is not exempt from regional

[[Page 36151]]

emissions analysis if the MPO in consultation with other agencies (see 
Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a 
highway project) or the FTA (in the case of a transit project) concur 
that it has potential regional impacts for any reason.

       Table 3.--Projects Exempt From Regional Emissions Analyses       
------------------------------------------------------------------------
                                                                        
-------------------------------------------------------------------------
Intersection channelization projects.                                   
Intersection signalization projects at individual intersections.        
Interchange reconfiguration projects.                                   
Changes in vertical and horizontal alignment.                           
Truck size and weight inspection stations.                              
Bus terminals and transfer points.                                      
------------------------------------------------------------------------

[FR Doc. 96-16581 Filed 7-8-96; 8:45 am]
BILLING CODE 6560-50-P