36112 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 selfaddressed, 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:

Category Examples of regulated 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 § 51.394/§ 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. PM10 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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

(NOx) 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/nobuild test, non-federal projects, rural

nonattainment areas, and adding nonexempt 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/nobuild 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

(NOX) 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 NOX or establish a NOX

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

NOX emission reduction tests would

continue to be required until a NOX

budget is established in a submitted SIP

(unless the area had received a NOX

waiver). In ozone nonattainment areas,

Phase II attainment SIPs will establish

NOX motor vehicle emissions budgets.

A submitted 15% or Phase I

attainment SIP would be considered to

establish a NOX motor vehicle emissions

budget if the submitted SIP contains an

explicit NOX budget that is intended to

act as a ceiling on future NOX emissions

and if the NOX budget represents a net

reduction from 1990 NOX emissions

levels. A submitted SIP that achieves

15% or reasonable further progress

reductions by substituting some NOX

reductions for the required VOC

reductions would establish a NOX 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
36114 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 §§ 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36115

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 PM10 (particles with an aerodynamic

diameter of less than or equal to a

nominal 10 micrometers) and nitrogen

dioxide (NO2) 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/nobuild 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/nobuild 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 §§ 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 PM10 and NO2

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 NOX motor vehicle emissions

budget that would be used for

determining conformity instead of the

NOX emission reduction tests. The

Clean Air Act does not require such

SIPs to address NOX, so a NOX

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 NOX 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 NOX would be considered to

establish a NOX 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 NOX motor vehicle

emissions budget should be determined

in consultation with the SIP agency and

the EPA Region.

For PM10 and NO2 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
36116 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 noticeand-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

PM10 and NO2 areas, the ozone and CO

classifications listed in §§ 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/nobuild 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36117

CO nonattainment areas that are

moderate greater than 12.7 ppm.

PM10 and NO2 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 PM10 and NO2 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
36118 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 PM10 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 PM10 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 vehiclerelated 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 nonfederal 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 nonfederal 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
36120 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 nonfederal 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-than1990 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36121

for such CO and PM10 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 ‘‘nobuild’’ 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.
36122 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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/nobuild 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 § 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 networkbased 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 § 51.402 (c)(1)(i) and (c)(6)

and § 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 § 51.452/§ 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 § 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
36124 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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

§ 51.400/§ 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 fullscale 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-byproject 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 fullscale 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 nonexempt 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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-andcomment 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
36126 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 PM10 areas this problem is

particularly acute, because motorvehicle-related PM10 emissions are

directly related to VMT. Technological

improvements in the motor vehicle fleet

over time do not significantly reduce

motor vehicle PM10 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 longterm 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/nobuild 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,
36128 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 nonmobile 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 customtailored 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 § 51.402/§ 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 § 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 threeyear 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

§ 51.448(a)(1)/§ 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 § 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

§ 51.400(a)(3)/§ 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

§ 51.410/§ 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,

PM10, and NO2 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 § 51.464/§ 93.136

(‘‘Special provisions for nonattainment

areas which are not required to

demonstrate reasonable further progress

and attainment’’) and § 51.452(d)/

§ 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.
36130 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 § 51.416/

§ 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 §§ 51.424 and 51.434

(§§ 93.116 and 93.121), which address

localized CO and PM10 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 PM10

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 PM10 Control

Measures

This proposal would clarify the

existing requirement of § 51.426/

§ 93.117 for SIP PM10 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 PM10

control measures in the project’s plans,

specifications, and estimates. Such

commitments would be enforceable, as

required by existing § 51.458/§ 93.133

(‘‘Enforceability of design concept and

scope and project-level mitigation and

control measures’’).

G. Budget Test

This proposal would combine existing

§§ 51.428–51.432 (§§ 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

§§ 51.436–51.446 (§§ 93.122–93.127),

which describe the tests for emission

reductions in the interim period for

ozone, CO, PM10, and NO2 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 § 51.448/§ 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

§ 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 § 51.448(e) requires

consultation on individual capacityincreasing 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 § 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 § 51.452/

§ 93.130. Some of the clarifications are

highlighted below.
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 § 51.458/

§ 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 § 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

§ 51.452(b)(2)/§ 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 § 51.452(b)(2)/

§ 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

(§ 51.430/§ 93.119 and § 51.432/

§ 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 PM10 Concentrations (Hot-spot

Analysis)

This proposal would restructure the

procedural requirements for hot-spot

analysis in order to clarify that the hotspot 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

§ 51.458/§ 93.133 by stating that a

waiver of mitigation measures is subject

to the conformity rule’s public

participation requirements for projectlevel 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
36132 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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 § 51.460/§ 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. PM10 Hot Spots

Section 51.454(d) (93.131(d)) of the

existing conformity rule requires

quantitative PM10 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 PM10 hot spots

due to transportation projects. As a

result, the requirements for quantitative

PM10 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

PM10 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 PM10 hot-spot modeling

guidance pending the completion of

research by organizations external to

EPA. EPA does not intend to issue PM10

hot-spot modeling guidance before

1998. As a result, the requirements of

existing § 51.454(d)/§ 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 PM10

concentrations must be considered in

CO and PM10 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 NOx 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 NOX emissions in certain speed

ranges. PM10 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 § 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
36134 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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

§§ 51.392 through 51.464 and by

revising § 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

§ 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36135

stated intent in the revision to establish

criteria and procedures more stringent

than the requirements stated in these

sections of this chapter: §§ 93.101,

93.102, 93.103, 93.104, 93.106, 93.109,

93.110, 93.111, 93.112, 93.113, 93.114,

93.115, 93.116, 93.117, 93.118, 93.119,

93.120, 93.121, 93.126, and 93.127 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 PM10 violations (hot spots).

93.117 Criteria and procedures: Compliance

with PM10 control measures.

93.118 Criteria and procedures: Motor

vehicle emissions budget.

93.119 Criteria and procedures: Emission

reductions in areas without motor

vehicle emissions budgets.

93.120 Consequences of control strategy

implementation plan failures.

93.121 Requirements for adoption or

approval of projects by other recipients

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

or the Federal Transit Laws.

93.122 Procedures for determining regional

transportation-related emissions.

93.123 Procedures for determining

localized CO and PM10 concentrations

(hot-spot analysis).

93.124 Using the motor vehicle emissions

budget in the applicable implementation

plan (or implementation plan

submission).

93.125 Enforceability of design concept and

scope and project-level mitigation and

control measures.

93.126 Exempt projects.

93.127 Projects exempt from regional

emissions analyses.

§ 93.100 Purpose.

The purpose of this subpart is to

implement § 176(c) of the Clean Air Act

(CAA), as amended (42 U.S.C. 7401 et

seq.), and the related requirements of 23

U.S.C. 109(j), with respect to the

conformity of transportation plans,

programs, and projects which are

developed, funded, or approved by the

United States Department of

Transportation (DOT), and by

metropolitan planning organizations

(MPOs) or other recipients of funds

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

Transit Laws (49 U.S.C. Chapter 53).

This subpart sets forth policy, criteria,

and procedures for demonstrating and

assuring conformity of such activities to

an applicable implementation plan

developed pursuant to section 110 and

Part D of the CAA.

§ 93.101 Definitions.

Terms used but not defined in this

subpart shall have the meaning given

them by the CAA, titles 23 and 49

U.S.C., other Environmental Protection

Agency (EPA) regulations, or other DOT

regulations, in that order of priority.

Applicable implementation plan is

defined in section 302(q) of the CAA

and means the portion (or portions) of

the implementation plan, or most recent

revision thereof, which has been

approved under section 110, or

promulgated under section 110(c), or

promulgated or approved pursuant to

regulations promulgated under section

301(d) and which implements the

relevant requirements of the CAA.

CAA means the Clean Air Act, as

amended.

Cause or contribute to a new violation

for a project means:

(1) To cause or contribute to a new

violation of a standard in the area

substantially affected by the project or

over a region which would otherwise

not be in violation of the standard

during the future period in question, if

the project were not implemented, or

(2) To contribute to a new violation in

a manner that would increase the

frequency or severity of a new violation

of a standard in such area.

Clean data means air quality

monitoring data determined by EPA to

meet the requirements of 40 CFR part 58

that indicate attainment of the national

ambient air quality standard.

Control strategy implementation plan

revision is the implementation plan

which contains specific strategies for

controlling the emissions of and

reducing ambient levels of pollutants in

order to satisfy CAA requirements for

demonstrations of reasonable further

progress and attainment (CAA sections

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

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

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

nitrogen dioxide).

Design concept means the type of

facility identified by the project, e.g.,

freeway, expressway, arterial highway,

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

transit, exclusive busway, etc.

Design scope means the design

aspects which will affect the proposed

facility’s impact on regional emissions,

usually as they relate to vehicle or

person carrying capacity and control,

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

constructed or added, length of project,

signalization, access control including

approximate number and location of

interchanges, preferential treatment for

high-occupancy vehicles, etc.

DOT means the United States

Department of Transportation.

EPA means the Environmental

Protection Agency.

FHWA means the Federal Highway

Administration of DOT.

FHWA/FTA project, for the purpose of

this subpart, is any highway or transit

project which is proposed to receive

funding assistance and approval

through the Federal-Aid Highway

program or the Federal mass transit

program, or requires Federal Highway

Administration (FHWA) or Federal

Transit Administration (FTA) approval

for some aspect of the project, such as

connection to an interstate highway or

deviation from applicable design

standards on the interstate system.

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
36136 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

additional transportation improvements

in the area are made; and

(3) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Horizon year is a year for which the

transportation plan describes the

envisioned transportation system

according to § 93.106 of this subpart.

Hot-spot analysis is an estimation of

likely future localized CO and PM10

pollutant concentrations and a

comparison of those concentrations to

the national ambient air quality

standards. Hot-spot analysis assesses

impacts on a scale smaller than the

entire nonattainment or maintenance

area, including, for example, congested

roadway intersections and highways or

transit terminals, and uses an air quality

dispersion model to determine the

effects of emissions on air quality.

Increase the frequency or severity

means to cause a location or region to

exceed a standard more often or to cause

a violation at a greater concentration

than previously existed and/or would

otherwise exist during the future period

in question, if the project were not

implemented.

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 decisionmaking.

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 § 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.
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36137

§ 93.102 Applicability.

(a) Action applicability. (1) Except as

provided for in paragraph (c) of this

section or § 93.126, conformity

determinations are required for:

(i) The adoption, acceptance, approval

or support of transportation plans and

transportation plan amendments

developed pursuant to 23 CFR part 450

or 49 CFR part 613 by an MPO or DOT;

(ii) The adoption, acceptance,

approval or support of TIPs and TIP

amendments developed pursuant to 23

CFR part 450 or 49 CFR part 613 by an

MPO or DOT; and

(iii) The approval, funding, or

implementation of FHWA/FTA projects.

(2) Conformity determinations are not

required under this rule for individual

projects which are not FHWA/FTA

projects. However, § 93.121 applies to

such projects if they are regionally

significant.

(b) Geographic Applicability. The

provisions of this subpart shall apply in

all nonattainment and maintenance

areas for transportation-related criteria

pollutants for which the area is

designated nonattainment or has a

maintenance plan.

(1) The provisions of this subpart

apply with respect to emissions of the

following criteria pollutants: Ozone,

carbon monoxide (CO), nitrogen dioxide

(NO2), and particles with an

aerodynamic diameter less than or equal

to a nominal 10 micrometers (PM10).

(2) The provisions of this subpart

apply with respect to emissions of the

following precursor pollutants:

(i) Volatile organic compounds (VOC)

and nitrogen oxides (NOX) in ozone

areas;

(ii) NOX in NO2 areas; and

(iii) VOC, NOX, and PM10 in PM10

areas if the EPA Regional Administrator

or the director of the State air agency

has made a finding that transportationrelated precursor emissions within the

nonattainment area are a significant

contributor to the PM10 nonattainment

problem and has so notified the MPO

and DOT, or if the applicable

implementation plan (or

implementation plan submission)

establishes a budget for such emissions

as part of the reasonable further

progress, attainment or maintenance

strategy.

(3) The provisions of this subpart

apply to maintenance areas for 20 years

from the date EPA approves the area’s

request under section 107(d) of the CAA

for redesignation to attainment, unless

the applicable implementation plan

specifies that the provisions of this

subpart shall apply for more than 20

years.

(c) Limitations. (1) Projects subject to

this 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, rightof-way acquisition, construction, or any

combination of these phases.

(2) A new conformity determination

for the project will be required if there

is a significant change in project design

concept and scope, if a supplemental

environmental document for air quality

purposes is initiated, or if three years

have elapsed since the most recent

major step to advance the project

occurred.

(d) Grace period for new

nonattainment areas. For areas or

portions of areas which have been

designated attainment for either ozone,

CO, PM10 or NO2 since 1990 and are

subsequently redesignated to

nonattainment for any of these

pollutants, the provisions of this subpart

shall not apply for 12 months following

the date of final designation to

nonattainment for such pollutant.

§ 93.103 Priority.

When assisting or approving any

action with air quality-related

consequences, FHWA and FTA shall

give priority to the implementation of

those transportation portions of an

applicable implementation plan

prepared to attain and maintain the

NAAQS. This priority shall be

consistent with statutory requirements

for allocation of funds among States or

other jurisdictions.

§ 93.104 Frequency of conformity

determinations.

(a) Conformity determinations and

conformity redeterminations for

transportation plans, TIPs, and FHWA/

FTA projects must be made according to

the requirements of this section and the

applicable implementation plan.

(b) Frequency of conformity

determinations for transportation plans.

(1) Each new transportation plan must

be demonstrated to conform before the

transportation plan is approved by the

MPO or accepted by DOT.

(2) All transportation plan revisions

must be found to conform before the

transportation plan revisions are

approved by the MPO or accepted by

DOT, unless the revision merely adds or

deletes exempt projects listed in

§ 93.126 or § 93.127. The conformity

determination must be based on the

transportation plan and the revision

taken as a whole.

(3) The MPO and DOT must

determine the conformity of the

transportation plan no less frequently

than every three years. If more than

three years elapse after DOT’s

conformity determination without the

MPO and DOT determining conformity

of the transportation plan, the existing

conformity determination will lapse.

(c) Frequency of conformity

determinations for transportation

improvement programs.

(1) A new TIP must be demonstrated

to conform before the TIP is approved

by the MPO or accepted by DOT.

(2) A TIP amendment requires a new

conformity determination for the entire

TIP before the amendment is approved

by the MPO or accepted by DOT, unless

the amendment merely adds or deletes

exempt projects listed in § 93.126 or

§ 93.127.

(3) The MPO and DOT must

determine the conformity of the TIP no

less frequently than every three years. If

more than three years elapse after DOT’s

conformity determination without the

MPO and DOT determining conformity

of the TIP, the existing conformity

determination will lapse.

(4) After an MPO adopts a new or

revised transportation plan, conformity

of the TIP must be redetermined by the

MPO and DOT within six months from

the date of DOT’s conformity

determination for the transportation

plan, unless the new or revised plan

merely adds or deletes exempt projects

listed in §§ 93.126 and 93.127.

Otherwise, the existing conformity

determination for the TIP will lapse.

(d) Projects. FHWA/FTA projects

must be found to conform before they

are adopted, accepted, approved, or

funded. Conformity must be

redetermined for any FHWA/FTA

project if three years have elapsed since

the most recent major step to advance

the project (NEPA process completion;

start of final design; acquisition of a

significant portion of the right-of-way;

or approval of the plans, specifications

and estimates) occurred.

(e) Triggers for transportation plan

and TIP conformity determinations.

Conformity of existing transportation

plans and TIPs must be redetermined

within 18 months of the following, or

the existing conformity determination

will lapse, and no new project-level

conformity determinations may be made
36138 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

until conformity of the transportation

plan and TIP has been determined by

the MPO and DOT:

(1) November 24, 1993;

(2) The date of the State’s initial

submission to EPA of each control

strategy implementation plan or

maintenance plan establishing a motor

vehicle emissions budget;

(3) EPA approval of a control strategy

implementation plan revision or

maintenance plan which establishes or

revises a motor vehicle emissions

budget;

(4) EPA approval of an

implementation plan revision that adds,

deletes, or changes TCMs; and

(5) EPA promulgation of an

implementation plan which establishes

or revises a motor vehicle emissions

budget or adds, deletes, or changes

TCMs.

§ 93.105 Consultation.

(a) General. The implementation plan

revision required under § 51.390 of this

chapter shall include procedures for

interagency consultation (Federal, State,

and local) 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 § 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

§§ 93.126 and 93.127) should be treated

as non-exempt in cases where potential

adverse emissions impacts may exist for

any reason;

(iv) Making a determination, as

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

obstacles to implementation of TCMs

which are behind the schedule

established in the applicable

implementation plan have been

identified and are being overcome, and

whether State and local agencies with

influence over approvals or funding for

TCMs are giving maximum priority to

approval or funding for TCMs. This

process shall also consider whether

delays in TCM implementation

necessitate revisions to the applicable

implementation plan to remove TCMs

or substitute TCMs or other emission

reduction measures;

(v) Identifying, as required by

§ 93.123(d), projects located at sites in

PM10 nonattainment areas which have

vehicle and roadway emission and

dispersion characteristics which are

essentially identical to those at sites

which have violations verified by

monitoring, and therefore require

quantitative PM10 hot-spot analysis; and

(vi) Notification of transportation plan

or TIP revisions or amendments which

merely add or delete exempt projects

listed in § 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 § 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36139

detail to perform the regional emissions

analysis according to the requirements

of § 93.122.

(6) A process for consulting on the

design, schedule, and funding of

research and data collection efforts and

regional transportation model

development by the MPO (e.g.,

household/travel transportation

surveys).

(7) A process for providing final

documents (including applicable

implementation plans and

implementation plan revisions) and

supporting information to each agency

after approval or adoption. This process

is applicable to all agencies described in

paragraph (a)(1) of this section,

including Federal agencies.

(d) Resolving conflicts. Conflicts

among State agencies or between State

agencies and an MPO shall be escalated

to the Governor if they cannot be

resolved by the heads of the involved

agencies. The State air agency has 14

calendar days to appeal to the Governor

after the State DOT or MPO has notified

the State air agency head of the

resolution of his or her comments. The

implementation plan revision required

by § 51.390 of this chapter shall define

the procedures for starting the 14-day

clock. If the State air agency appeals to

the Governor, the final conformity

determination must have the

concurrence of the Governor. If the State

air agency does not appeal to the

Governor within 14 days, the MPO or

State department of transportation may

proceed with the final conformity

determination. The Governor may

delegate his or her role in this process,

but not to the head or staff of the State

or local air agency, State department of

transportation, State transportation

commission or board, or an MPO.

(e) Public consultation procedures.

Affected agencies making conformity

determinations on transportation plans,

programs, and projects shall establish a

proactive public involvement process

which provides opportunity for public

review and comment by, at a minimum,

providing reasonable public access to

technical and policy information

considered by the agency at the

beginning of the public comment period

and prior to taking formal action on a

conformity determination for all

transportation plans and TIPs,

consistent with these requirements and

those of 23 CFR 450.316(b). Any charges

imposed for public inspection and

copying should be consistent with the

fee schedule contained in 49 CFR 7.95.

In addition, these agencies must

specifically address in writing all public

comments that known plans for a

regionally significant project which is

not receiving FHWA or FTA funding or

approval have not been properly

reflected in the emissions analysis

supporting a proposed conformity

finding for a transportation plan or TIP.

These agencies shall also provide

opportunity for public involvement in

conformity determinations for projects

where otherwise required by law.

§ 93.106 Content of transportation plans.

(a) Transportation plans adopted after

January 1, 1997 in serious, severe, or

extreme ozone nonattainment areas and

in serious CO nonattainment areas. If

the metropolitan planning area contains

an urbanized area population greater

than 200,000, the transportation plan

must specifically describe the

transportation system envisioned for

certain future years which shall be

called horizon years.

(1) The agency or organization

developing the transportation plan may

choose any years to be horizon years,

subject to the following restrictions:

(i) Horizon years may be no more than

10 years apart.

(ii) The first horizon year may be no

more than 10 years from the base year

used to validate the transportation

demand planning model.

(iii) If the attainment year is in the

time span of the transportation plan, the

attainment year must be a horizon year.

(iv) The last horizon year must be the

last year of the transportation plan’s

forecast period.

(2) For these horizon years:

(i) The transportation plan shall

quantify and document the

demographic and employment factors

influencing expected transportation

demand, including land use forecasts, in

accordance with implementation plan

provisions and the consultation

requirements specified by § 93.105;

(ii) The highway and transit system

shall be described in terms of the

regionally significant additions or

modifications to the existing

transportation network which the

transportation plan envisions to be

operational in the horizon years.

Additions and modifications to the

highway network shall be sufficiently

identified to indicate intersections with

existing regionally significant facilities,

and to determine their effect on route

options between transportation analysis

zones. Each added or modified highway

segment shall also be sufficiently

identified in terms of its design concept

and design scope to allow modeling of

travel times under various traffic

volumes, consistent with the modeling

methods for area-wide transportation

analysis in use by the MPO. Transit

facilities, equipment, and services

envisioned for the future shall be

identified in terms of design concept,

design scope, and operating policies

that are sufficient for modeling of their

transit ridership. Additions and

modifications to the transportation

network shall be described sufficiently

to show that there is a reasonable

relationship between expected land use

and the envisioned transportation

system; and

(iii) Other future transportation

policies, requirements, services, and

activities, including intermodal

activities, shall be described.

(b) Moderate areas reclassified to

serious Ozone or CO nonattainment

areas which are reclassified from

moderate to serious must meet the

requirements of paragraph (a) of this

section within two years from the date

of reclassification.

(c) Transportation plans for other

areas Transportation plans for other

areas must meet the requirements of

paragraph (a) of this section at least to

the extent it has been the previous

practice of the MPO to prepare plans

which meet those requirements.

Otherwise, the transportation system

envisioned for the future must be

sufficiently described within the

transportation plans so that a

conformity determination can be made

according to the criteria and procedures

of §§ 93.109—93.119.

(d) Savings The requirements of this

section supplement other requirements

of applicable law or regulation

governing the format or content of

transportation plans.

§ 93.107 Relationship of transportation

plan and TIP conformity with the NEPA

process.

The degree of specificity required in

the transportation plan and the specific

travel network assumed for air quality

modeling do not preclude the

consideration of alternatives in the

NEPA process or other project

development studies. Should the NEPA

process result in a project with design

concept and scope significantly

different from that in the transportation

plan or TIP, the project must meet the

criteria in §§ 93.109—93.119 for projects

not from a TIP before NEPA process

completion.

§ 93.108 Fiscal constraints for

transportation plans and TIPs.

Transportation plans and TIPs must

be fiscally constrained consistent with

DOT’s metropolitan planning

regulations at 23 CFR part 450 in order

to be found in conformity.
36140 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

§ 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 §§ 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

§ 93.110 ..... Latest planning assumptions.

§ 93.111 ..... Latest emissions model.

§ 93.112 ..... Consultation.

Transportation Plan

§ 93.113(b) TCMs.

§ 93.118 OR

§ 93.119.

Emissions budget OR Emission

reduction.

TIP

§ 93.113(c) TCMs.

§ 93.118 OR

§ 93.119.

Emissions budget OR Emission

reduction.

Project (From a Conforming Plan and TIP)

§ 93.114 ..... Currently conforming plan and

TIP.

§ 93.115 ..... Project from a conforming plan

and TIP.

§ 93.116 ..... CO and PM10 hot spots.

§ 93.117 ..... PM10 control measures.

Project (Not From a Conforming Plan and

TIP)

§ 93.113(d) TCMs.

§ 93.114 ..... Currently conforming plan and

TIP.

§ 93.116 ..... CO and PM10 hot spots.

§ 93.117 ..... PM10 control measures.

TABLE 1.—CONFORMITY CRITERIA—

Continued

§ 93.118 OR

§ 93.119.

Emissions budget OR Emission

reduction.

(c) Ozone nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 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 § 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 § 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

NOX, as required by § 93.119, if the

implementation plan or plan

submission that is applicable for the

purposes of conformity determinations

is a 15% SIP or Phase I attainment

demonstration that does not include a

motor vehicle emissions budget for

NOX. The implementation plan will be

considered to establish a motor vehicle

emissions budget for NOX if the

implementation plan or plan

submission contains an explicit NOX

motor vehicle emissions budget that is

intended to act as a ceiling on future

NOX emissions, and the NOX motor

vehicle emissions budget is a net

reduction from NOX emissions levels in

1990.

(4) 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 § 93.119;

(ii) The State air quality agency shall

determine (subject to the interagency

consultation process required by

§ 93.105) the motor vehicle emissions of

ozone precursors in the most recent year

of clean data. The budget test required

by § 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 § 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 § 93.119; or

(ii) The State shall submit to EPA an

implementation plan revision that

contains motor vehicle emissions

budget(s) and an attainment

demonstration, and the budget test

required by § 93.118 must be satisfied

using the submitted motor vehicle

emissions budget(s) (as described in

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

(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 § 93.119;

(ii) The budget test as required by

§ 93.118, using the motor vehicle

emissions budgets in the submitted

control strategy implementation plan

(subject to the timing requirements of

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

(iii) The State air quality agency shall

determine (subject to the interagency

consultation process required by
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36141

§ 93.105) the motor vehicle emissions of

ozone precursors in the most recent year

of clean data. The budget test required

by § 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

§ 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 § 93.116(b).

(2) In CO areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(3) In 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 § 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 § 93.119;

(ii) The State air quality agency shall

determine (subject to the interagency

consultation process required by

§ 93.105) the motor vehicle emissions of

CO in the most recent year of clean data.

The budget test required by § 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 § 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 § 93.119; or

(ii) The State shall submit to EPA an

implementation plan revision that

contains motor vehicle emissions

budget(s) and an attainment

demonstration, and the budget test

required by § 93.118 must be satisfied

using the submitted motor vehicle

emissions budget(s) (as described in

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

(e) PM10 nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 that are

required to be satisfied at all times, in

PM10 nonattainment and maintenance

areas conformity determinations must

include a demonstration that the hot

spot, budget and/or emission reduction

tests are satisfied as described in the

following paragraphs.

(1) FHWA/FTA projects in PM10

nonattainment or maintenance areas

must satisfy the hot spot test required by

§ 93.116.

(2) In PM10 areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(3) In PM10 nonattainment areas the

emission reduction tests must be

satisfied as required by § 93.119 for

conformity determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions

budget adequate for transportation

conformity purposes;

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan

inadequate for transportation

conformity purposes, and there is no

previously established motor vehicle

emissions budget in the approved 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) NO2 nonattainment and

maintenance areas. In addition to the

criteria listed in Table 1 that are

required to be satisfied at all times, in

NO2 nonattainment and maintenance

areas conformity determinations must

include a demonstration that the budget

and/or emission reduction tests are

satisfied as described in the following

paragraphs.

(1) In NO2 areas the budget test must

be satisfied as required by § 93.118 for

conformity determinations made:

(i) 45 days after a control strategy

implementation plan revision or

maintenance plan has been submitted to

EPA, unless EPA has declared the motor

vehicle emissions budget inadequate for

transportation conformity purposes; or

(ii) After EPA has declared that the

motor vehicle emissions budget in a

submitted control strategy

implementation plan revision or

maintenance plan is adequate for

transportation conformity purposes.

(2) In NO2 areas the emission

reduction tests must be satisfied as

required by § 93.119 for conformity

determinations made:

(i) During the first 45 days after a

control strategy implementation plan

revision or maintenance plan has been

submitted to EPA, unless EPA has

declared a motor vehicle emissions

budget adequate for transportation

conformity purposes; or

(ii) If EPA has declared the motor

vehicle emissions budget in a submitted

control strategy implementation plan

revision or maintenance plan
36142 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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

§§ 93.110, 93.111, 93.112, 93.113(d),

93.116, and 93.117. Until EPA approves

the control strategy implementation

plan or maintenance plan for a rural CO

nonattainment or maintenance area,

FHWA/FTA projects must also satisfy

the requirements of § 93.116(b)

(‘‘Localized CO and PM10 violations (hot

spots)’’).

(2) Isolated rural nonattainment and

maintenance areas are subject to the

budget and/or emission reduction tests

as described in paragraphs (c)–(f) of this

section, with the following

modifications:

(i) When the requirements of

§§ 93.118 and 93.119 apply to isolated

rural nonattainment and maintenance

areas, references to ‘‘transportation

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

those projects in the statewide

transportation plan or statewide TIP

which are in the rural nonattainment or

maintenance area.

(ii) In isolated rural nonattainment

and maintenance areas that are subject

to § 93.118, FHWA/FTA projects must

be consistent with motor vehicle

emissions budget(s) for the years in the

timeframe of the attainment

demonstration or maintenance plan. For

years after the attainment year (if a

maintenance plan has not been

submitted) or after the last year of the

maintenance plan, FHWA/FTA projects

must satisfy one of the following

requirements:

(A) § 93.118;

(B) § 93.119 (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 § 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 § 93.105(d), which applies

for any State air agency comments on a

conformity determination.

§ 93.110 Criteria and procedures: Latest

planning assumptions.

(a) The conformity determination,

with respect to all other applicable

criteria in §§ 93.111–93.119, must be

based upon the most recent planning

assumptions in force at the time of the

conformity determination. The

conformity determination must satisfy

the requirements of paragraphs (b)

through (f) of this section.

(b) Assumptions must be derived from

the estimates of current and future

population, employment, travel, and

congestion most recently developed by

the MPO or other agency authorized to

make such estimates and approved by

the MPO. The conformity determination

must also be based on the latest

assumptions about current and future

background concentrations.

(c) The conformity determination for

each transportation plan and TIP must

discuss how transit operating policies

(including fares and service levels) and

assumed transit ridership have changed

since the previous conformity

determination.

(d) The conformity determination

must include reasonable assumptions

about transit service and increases in

transit fares and road and bridge tolls

over time.

(e) The conformity determination

must use the latest existing information

regarding the effectiveness of the TCMs

and other implementation plan

measures which have already been

implemented.

(f) Key assumptions shall be specified

and included in the draft documents

and supporting materials used for the

interagency and public consultation

required by § 93.105.

§ 93.111 Criteria and procedures: Latest

emissions model.

(a) The conformity determination

must be based on the latest emission

estimation model available. This

criterion is satisfied if the most current

version of the motor vehicle emissions

model specified by EPA for use in the

preparation or revision of

implementation plans in that State or

area is used for the conformity analysis.

Where EMFAC is the motor vehicle

emissions model used in preparing or

revising the applicable implementation

plan, new versions must be approved by

EPA before they are used in the

conformity analysis.

(b) EPA will consult with DOT to

establish a grace period following the

specification of any new model.

(1) The grace period will be no less

than three months and no more than 24

months after notice of availability is

published in the Federal Register.

(2) The length of the grace period will

depend on the degree of change in the

model and the scope of re-planning

likely to be necessary by MPOs in order

to assure conformity. If the grace period

will be longer than three months, EPA

will announce the appropriate grace

period in the Federal Register.

(c) Transportation plan and TIP

conformity analyses for which the

emissions analysis was begun during

the grace period or before the Federal

Register notice of availability of the

latest emission model may continue to

use the previous version of the model.

Conformity determinations for projects

may also be based on the previous

model if the analysis was begun during

the grace period or before the Federal

Register notice of availability, and if the

final environmental document for the

project is issued no more than three

years after the issuance of the draft

environmental document.

§ 93.112 Criteria and procedures:

Consultation.

Conformity must be determined

according to the consultation

procedures in this 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 § 51.390 of this chapter is fully

approved by EPA, the conformity
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36143

determination must be made according

to § 93.105(a)(2) and § 93.105(e) and the

requirements of 23 CFR part 450.

§ 93.113 Criteria and procedures: Timely

implementation of TCMs.

(a) The transportation plan, TIP, or

any FHWA/FTA project which is not

from a conforming plan and TIP must

provide for the timely implementation

of TCMs from the applicable

implementation plan.

(b) For transportation plans, this

criterion is satisfied if the following two

conditions are met:

(1) The transportation plan, in

describing the envisioned future

transportation system, provides for the

timely completion or implementation of

all TCMs in the applicable

implementation plan which are eligible

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

Federal Transit Laws, consistent with

schedules included in the applicable

implementation plan.

(2) Nothing in the transportation plan

interferes with the implementation of

any TCM in the applicable

implementation plan.

(c) For TIPs, this criterion is satisfied

if the following conditions are met:

(1) An examination of the specific

steps and funding source(s) needed to

fully implement each TCM indicates

that TCMs which are eligible for

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

Federal Transit Laws are on or ahead of

the schedule established in the

applicable implementation plan, or, if

such TCMs are behind the schedule

established in the applicable

implementation plan, the MPO and

DOT have determined that past

obstacles to implementation of the

TCMs have been identified and have

been or are being overcome, and that all

State and local agencies with influence

over approvals or funding for TCMs are

giving maximum priority to approval or

funding of TCMs over other projects

within their control, including projects

in locations outside the nonattainment

or maintenance area.

(2) If TCMs in the applicable

implementation plan have previously

been programmed for Federal funding

but the funds have not been obligated

and the TCMs are behind the schedule

in the implementation plan, then the

TIP cannot be found to conform if the

funds intended for those TCMs are

reallocated to projects in the TIP other

than TCMs, or if there are no other

TCMs in the TIP, if the funds are

reallocated to projects in the TIP other

than projects which are eligible for

Federal funding intended for air quality

improvement projects, e.g., the

Congestion Mitigation and Air Quality

Improvement Program.

(3) Nothing in the TIP may interfere

with the implementation of any TCM in

the applicable implementation plan.

(d) For FHWA/FTA projects which

are not from a conforming

transportation plan and TIP, this

criterion is satisfied if the project does

not interfere with the implementation of

any TCM in the applicable

implementation plan.

§ 93.114 Criteria and procedures:

Currently conforming transportation plan

and TIP.

There must be a currently conforming

transportation plan and currently

conforming TIP at the time of project

approval.

(a) Only one conforming

transportation plan or TIP may exist in

an area at any time; conformity

determinations of a previous

transportation plan or TIP expire once

the current plan or TIP is found to

conform by DOT. The conformity

determination on a transportation plan

or TIP will also lapse if conformity is

not determined according to the

frequency requirements specified in

§ 93.104.

(b) This criterion is not required to be

satisfied at the time of project approval

for a TCM specifically included in the

applicable implementation plan,

provided that all other relevant criteria

of this subpart are satisfied.

§ 93.115 Criteria and procedures: Projects

from a plan and TIP.

(a) The project must come from a

conforming plan and program. If this

criterion is not satisfied, the project

must satisfy all criteria in Table 1 for a

project not from a conforming

transportation plan and TIP. A project is

considered to be from a conforming

transportation plan if it meets the

requirements of paragraph (b) of this

section and from a conforming program

if it meets the requirements of paragraph

(c) of this section. Special provisions for

TCMs in an applicable implementation

plan are provided in paragraph (d) of

this section.

(b) A project is considered to be from

a conforming transportation plan if one

of the following conditions applies:

(1) For projects which are required to

be identified in the transportation plan

in order to satisfy § 93.106 (‘‘Content of

transportation plans’’), the project is

specifically included in the conforming

transportation plan and the project’s

design concept and scope have not

changed significantly from those which

were described in the transportation

plan, or in a manner which would

significantly impact use of the facility;

or

(2) For projects which are not

required to be specifically identified in

the transportation plan, the project is

identified in the conforming

transportation plan, or is consistent

with the policies and purpose of the

transportation plan and will not

interfere with other projects specifically

included in the transportation plan.

(c) A project is considered to be from

a conforming program if the following

conditions are met:

(1) The project is included in the

conforming TIP and the design concept

and scope of the project were adequate

at the time of the TIP conformity

determination to determine its

contribution to the TIP’s regional

emissions, and the project design

concept and scope have not changed

significantly from those which were

described in the TIP; and

(2) If the TIP describes a project

design concept and scope which

includes project-level emissions

mitigation or control measures, written

commitments to implement such

measures must be obtained from the

project sponsor and/or operator as

required by § 93.125(a) in order for the

project to be considered from a

conforming program. Any change in

these mitigation or control measures

that would significantly reduce their

effectiveness constitutes a change in the

design concept and scope of the project.

(d) TCMs. This criterion is not

required to be satisfied for TCMs

specifically included in an applicable

implementation plan.

§ 93.116 Criteria and procedures:

Localized CO and PM10 violations (hot

spots).

(a) This paragraph applies at all times.

The FHWA/FTA project must not cause

or contribute to any new localized CO

or PM10 violations or increase the

frequency or severity of any existing CO

or PM10 violations in CO and PM10

nonattainment and maintenance areas.

This criterion is satisfied if it is

demonstrated that no new local

violations will be created and the

severity or number of existing violations

will not be increased as a result of the

project. The demonstration must be

performed according to the consultation

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

methodology requirements of § 93.123.

(b) This paragraph applies for CO

nonattainment areas as described in

§ 93.109(d)(1). Each FHWA/FTA project

must eliminate or reduce the severity

and number of localized CO violations

in the area substantially affected by the

project (in CO nonattainment areas).
36144 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

This criterion is satisfied with respect to

existing localized CO violations if it is

demonstrated that existing localized CO

violations will be eliminated or reduced

in severity and number as a result of the

project. The demonstration must be

performed according to the consultation

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

methodology requirements of § 93.123.

§ 93.117 Criteria and procedures:

Compliance with PM10 control measures.

The FHWA/FTA project must comply

with PM10 control measures in the

applicable implementation plan. This

criterion is satisfied if the project-level

conformity determination contains a

written commitment from the project

sponsor to include in the final plans,

specifications, and estimates for the

project those control measures (for the

purpose of limiting PM10 emissions

from the construction activities and/or

normal use and operation associated

with the project) that are contained in

the applicable implementation plan.

§ 93.118 Criteria and procedures: Motor

vehicle emissions budget.

(a) The transportation plan, TIP, and

project not from a conforming

transportation plan and TIP must be

consistent with the motor vehicle

emissions budget(s) in the applicable

implementation plan (or

implementation plan submission). This

criterion applies as described in

§ 93.109 (c)–(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

§ 93.105 shall determine what must be

considered in order to make such a

finding;

(ii) For years after the last year of the

maintenance plan, emissions must be

less than or equal to the maintenance

plan’s motor vehicle emissions

budget(s) for the last year of the

maintenance plan; and

(iii) If an approved control strategy

implementation plan has established

motor vehicle emissions budgets for

years in the timeframe of the

transportation plan, emissions in these

years must be less than or equal to the

control strategy implementation plan’s

motor vehicle emissions budget(s) for

these years.

(c) Consistency with the motor

vehicle emissions budget(s) must be

demonstrated for each pollutant or

pollutant precursor in § 93.102(b)(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

§§ 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

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

§ 93.119 Criteria and procedures:

Emission reductions in areas without motor

vehicle emissions budgets.

(a) The transportation plan, TIP, and

project not from a conforming

transportation plan and TIP must

contribute to emissions reductions. This

criterion applies as described in

§ 93.109 (c)–(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 § 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 PM10

and NO2 nonattainment areas; marginal

and below ozone nonattainment areas

and other ozone nonattainment areas

that are not subject to the reasonable

further progress requirements of 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 § 93.122 and

paragraphs (e) through (h) of this section

demonstrates that for each analysis year

and for each of the pollutants described

in paragraph (d) of this section, one of

the following requirements is met:

(1) The emissions predicted in the

‘‘Action’’ scenario are less than the

emissions predicted in the ‘‘Baseline’’

scenario, and this can be reasonably

expected to be true in the periods

between the analysis years; or

(2) The emissions predicted in the

‘‘Action’’ scenario are not greater than

baseline emissions. Baseline emissions

are those estimated to have occurred

during calendar year 1990, unless the

conformity implementation plan

revision required by § 51.390 of this

chapter defines the baseline emissions

for a PM10 area to be those occurring in

a different calendar year for which a

baseline emissions inventory was

developed for the purpose of developing

a control strategy implementation plan.

(d) Pollutants. The regional emissions

analysis must be performed for the

following pollutants:

(1) VOC in ozone nonattainment

areas;

(2) NOX in ozone nonattainment

areas, unless the EPA Administrator

determines that additional reductions of

NOX would not contribute to

attainment;

(3) CO in CO nonattainment areas;

(4) PM10 in PM10 areas;

(5) Transportation-related precursors

of PM10 in PM10 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 PM10

nonattainment problem and has so

notified the MPO and DOT; and

(6) NOX in NO2 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 § 93.126 and

projects exempt from regional emissions

analysis as listed in § 93.127 need not be

explicitly considered):

(1) All in-place regionally significant

highway and transit facilities, services

and activities;

(2) All ongoing travel demand

management or transportation system

management activities; and

(3) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first year of the

previously conforming transportation

plan and/or TIP; or have completed the

NEPA process.

(g) ‘‘Action’’ scenario. The regional

emissions analysis must estimate the

emissions that would result from the

‘‘Action’’ scenario in each analysis year.

The ‘‘Action’’ scenario must be defined

for each of the analysis years. The

‘‘Action’’ scenario is the transportation

system that would result from the

implementation of the proposed action

(transportation plan, TIP, or project not

from a conforming transportation plan

and TIP) and all other expected

regionally significant projects in the

nonattainment area. The ‘‘Action’’

scenario must include the following

(except that exempt projects listed in

§ 93.126 and projects exempt from

regional emissions analysis as listed in

§ 93.127 need not be explicitly

considered):

(1) All facilities, services, and

activities in the ‘‘Baseline’’ scenario;

(2) Completion of all TCMs and

regionally significant projects (including

facilities, services, and activities)

specifically identified in the proposed

transportation plan which will be

operational or in effect in the analysis

year, except that regulatory TCMs may

not be assumed to begin at a future time

unless the regulation is already adopted

by the enforcing jurisdiction or the TCM

is identified in the applicable

implementation plan;

(3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or
36146 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

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.

§ 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 § 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.

§ 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 §§ 93.118 and/

or 93.119 for a project not from a

conforming transportation plan and

TIP).

(b) In isolated rural nonattainment

and maintenance areas subject to

§ 93.109(g), no recipient of Federal

funds designated under title 23 U.S.C.

or the Federal Transit Laws shall adopt

or approve a regionally significant

highway or transit project, regardless of

funding source, unless the recipient

finds that the requirements of one of the

following 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 §§ 93.118 and/or 93.119

for projects not from a conforming

transportation plan and TIP).

§ 93.122 Procedures for determining

regional transportation-related emissions.

(a) General requirements. (1) The

regional emissions analysis required by

§§ 93.118 and 93.119 for the

transportation plan, TIP, or project not

from a conforming plan and TIP must

include all regionally significant

projects expected in the nonattainment

or maintenance area. The analysis shall

include FHWA/FTA projects proposed

in the transportation plan and TIP and

all other regionally significant projects

which are disclosed to the MPO as

required by § 93.105. Projects which are

not regionally significant are not

required to be explicitly modeled, but

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.
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 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 § 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 § 51.390 of this

chapter must provide that written

commitments to control measures that

are not included in the transportation

plan and TIP must be obtained prior to

a conformity determination and that

such commitments must be fulfilled.

(5) A regional emissions analysis for

the purpose of satisfying the

requirements of § 93.119 must make the

same assumptions in both the

‘‘Baseline’’ and ‘‘Action’’ scenarios

regarding control measures that are

external to the transportation system

itself, such as vehicle tailpipe or

evaporative emission standards, limits

on gasoline volatility, vehicle inspection

and maintenance programs, and

oxygenated or reformulated gasoline or

diesel fuel.

(6) The ambient temperatures used for

the regional emissions analysis shall be

consistent with those used to establish

the emissions budget in the applicable

implementation plan. All other factors,

for example the fraction of travel in a

hot stabilized engine mode, must be

consistent with the applicable

implementation plan, unless modified

after interagency consultation according

to § 93.105(c)(1)(i) to incorporate

additional or more geographically

specific information or represent a

logically estimated trend in such factors

beyond the period considered in the

applicable implementation plan.

(7) Reasonable methods shall be used

to estimate nonattainment 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

§ 93.105(c)(1)(i).

(4) A transportation plan and TIP may

satisfy the requirements of §§ 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 § 93.104(b)(3) and

§ 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.
36148 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

(d) PM10 from construction-related

fugitive dust.

(1) For areas in which the

implementation plan does not identify

construction-related fugitive PM10 as a

contributor to the nonattainment

problem, the fugitive PM10 emissions

associated with highway and transit

project construction are not required to

be considered in the regional emissions

analysis.

(2) In PM10 nonattainment and

maintenance areas with implementation

plans which identify constructionrelated fugitive PM10 as a contributor to

the nonattainment problem, the regional

PM10 emissions analysis shall consider

construction-related fugitive PM10 and

shall account for the level of

construction activity, the fugitive PM10

control measures in the applicable

implementation plan, and the dustproducing capacity of the proposed

activities.

(e) Reliance on previous regional

emissions analysis. (1) The TIP may be

demonstrated to satisfy the

requirements of § 93.118 (‘‘Motor

vehicle emissions budget’’) or § 93.119

(‘‘Emission reductions in areas without

motor vehicle emissions budgets’’)

without new regional emissions analysis

if the regional emissions analysis

already performed for the plan also

applies to the TIP. This requires a

demonstration that:

(i) The TIP contains all projects which

must be started in the TIP’s timeframe

in order to achieve the highway and

transit system envisioned by the

transportation plan;

(ii) All TIP projects which are

regionally significant are included in

the transportation plan with design

concept and scope adequate to

determine their contribution to the

transportation plan’s regional emissions

at the time of the transportation plan’s

conformity determination; and

(iii) The design concept and scope of

each regionally significant project in the

TIP is not significantly different from

that described in the transportation

plan.

(2) A project which is not from a

conforming transportation plan and a

conforming TIP may be demonstrated to

satisfy the requirements of § 93.118 or

§ 93.119 without additional regional

emissions analysis if allocating funds to

the project will not delay the

implementation of projects in the

transportation plan or TIP which are

necessary to achieve the highway and

transit system envisioned by the

transportation plan, and if the project is

either:

(i) Not regionally significant; or

(ii) Included in the conforming

transportation plan (even if it is not

specifically included in the latest

conforming TIP) with design concept

and scope adequate to determine its

contribution to the transportation plan’s

regional emissions at the time of the

transportation plan’s conformity

determination, and the design concept

and scope of the project is not

significantly different from that

described in the transportation plan.

§ 93.123 Procedures for determining

localized CO and PM10 concentrations (hotspot analysis).

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

demonstrations required by § 93.116

(‘‘Localized CO and PM10 violations’’)

must be based on quantitative analysis

using the applicable air quality models,

data bases, and other requirements

specified in 40 CFR part 51 Appendix

W (‘‘Guideline on Air Quality Models

(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 § 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-ofService D, E, or F because of increased

traffic volumes related to the project;

(iii) For any project affecting one or

more of the top three intersections in

the nonattainment or maintenance area

with highest traffic volumes, as

identified in the applicable

implementation plan; and

(iv) For any project affecting one or

more of the top three intersections in

the nonattainment or maintenance area

with the worst level of service, as

identified in the applicable

implementation plan.

(2) In cases other than those described

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

demonstrations required by § 93.116

may be based on either:

(i) Quantitative methods that

represent reasonable and common

professional practice; or

(ii) A qualitative consideration of

local factors, if this can provide a clear

demonstration that the requirements of

§ 93.116 are met.

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

hot-spot demonstration required by

§ 93.116 must be based on quantitative

analysis methods for the following types

of projects:

(i) Projects which are located at sites

at which violations have been verified

by monitoring;

(ii) Projects which are located at sites

which have vehicle and roadway

emission and dispersion characteristics

that are essentially identical to those of

sites with verified violations (including

sites near one at which a violation has

been monitored); and

(iii) New or expanded bus and rail

terminals and transfer points which

increase the number of diesel vehicles

congregating at a single location require

hot-spot analysis.

(2) Where quantitative analysis

methods are not required, the

demonstration required by § 93.116 may

be based on a qualitative consideration

of local factors.

(3) The identification of the sites

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

of this section, and other cases where

quantitative methods are appropriate,

shall be determined through the

interagency consultation process

required in § 93.105. DOT may choose

to make a categorical conformity

determination on bus and rail terminals

or transfer points based on appropriate

modeling of various terminal sizes,

configurations, and activity levels.

(4) The requirements for quantitative

analysis contained in 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) PM10 or CO mitigation or control

measures shall be assumed in the hot-
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36149

spot analysis only where there are

written commitments from the project

sponsor and/or operator to implement

such measures, as required by

§ 93.125(a).

(5) CO and PM10 hot-spot analyses are

not required to consider constructionrelated activities which cause temporary

increases in emissions. Each site which

is affected by construction-related

activities shall be considered separately,

using established ‘‘Guideline’’ methods.

Temporary increases are defined as

those which occur only during the

construction phase and last five years or

less at any individual site.

§ 93.124 Using the motor vehicle

emissions budget in the applicable

implementation plan (or implementation

plan submission).

(a) In interpreting an applicable

implementation plan (or

implementation plan submission) with

respect to its motor vehicle emissions

budget(s), the MPO and DOT may not

infer additions to the budget(s) that are

not explicitly intended by the

implementation plan (or submission).

Unless the implementation plan

explicitly quantifies the amount by

which motor vehicle emissions could be

higher while still allowing a

demonstration of compliance with the

milestone, attainment, or maintenance

requirement and explicitly states an

intent that some or all of this additional

amount should be available to the MPO

and DOT in the emissions budget for

conformity purposes, the MPO may not

interpret the budget to be higher than

the implementation plan’s estimate of

future emissions. This applies in

particular to applicable implementation

plans (or submissions) which

demonstrate that after implementation

of control measures in the

implementation plan:

(1) Emissions from all sources will be

less than the total emissions that would

be consistent with a required

demonstration of an emissions

reduction milestone;

(2) Emissions from all sources will

result in achieving attainment prior to

the attainment deadline and/or ambient

concentrations in the attainment

deadline year will be lower than needed

to demonstrate attainment; or

(3) Emissions will be lower than

needed to provide for continued

maintenance.

(b) If an applicable implementation

plan submitted before November 24,

1993, demonstrates that emissions from

all sources will be less than the total

emissions that would be consistent with

attainment and quantifies that ‘‘safety

margin,’’ the State may submit 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.

§ 93.125 Enforceability of design concept

and scope and project-level mitigation and

control measures.

(a) Prior to determining that a

transportation project is in conformity,

the MPO, other recipient of funds

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

Federal Transit Laws, FHWA, or FTA

must obtain from the project sponsor

and/or operator written commitments to

implement in the construction of the

project and operation of the resulting

facility or service any project-level

mitigation or control measures which

are identified as conditions for NEPA

process completion with respect to local

PM10 or CO impacts. Before a

conformity determination is made,

written commitments must also be

obtained for project-level mitigation or

control measures which are conditions

for making conformity determinations

for a transportation plan or TIP and are

included in the project design concept

and scope which is used in the regional

emissions analysis required by

§§ 93.118 (‘‘Motor vehicle emissions

budget’’) and 93.119 (‘‘Emission

reductions in areas without motor

vehicle emissions budgets’’) or used in

the project-level hot-spot analysis

required by § 93.116.

(b) Project sponsors voluntarily

committing to mitigation measures to

facilitate positive conformity

determinations must comply with the

obligations of such commitments.

(c) The implementation plan revision

required in § 51.390 of this chapter shall

provide that written commitments to

mitigation measures must be obtained

prior to a positive conformity

determination, and that project sponsors

must comply with such commitments.

(d) If the MPO or project sponsor

believes the mitigation or control

measure is no longer necessary for

conformity, the project sponsor or

operator may be relieved of its

obligation to implement the mitigation

or control measure if it can demonstrate

that the applicable hot-spot

requirements of § 93.116, emission

budget requirements of § 93.118, and

emission reduction requirements of

§ 93.119 are satisfied without the

mitigation or control measure, and so

notifies the agencies involved in the

interagency consultation process

required under § 93.105. The MPO and

DOT must find that the transportation

plan and TIP still satisfy the applicable

requirements of §§ 93.118 and/or 93.119

and that the project still satisfies the

requirements of § 93.116, and therefore

that the conformity determinations for

the transportation plan, TIP, and project

are still valid. This finding is subject to

the applicable public consultation

requirements in § 93.105(e) for

conformity determinations for projects.

§ 93.126 Exempt projects.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 2 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 § 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.
36150 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules

TABLE 2.—EXEMPT PROJECTS

Safety

Railroad/highway crossing.

Hazard elimination program.

Safer non-Federal-aid system roads.

Shoulder improvements.

Increasing sight distance.

Safety improvement program.

Traffic control devices and operating assistance other than signalization projects.

Railroad/highway crossing warning devices.

Guardrails, median barriers, crash cushions.

Pavement resurfacing and/or rehabilitation.

Pavement marking demonstration.

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

Fencing.

Skid treatments.

Safety roadside rest areas.

Adding medians.

Truck climbing lanes outside the urbanized area.

Lighting improvements.

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

Emergency truck pullovers.

Mass Transit

Operating assistance to transit agencies.

Purchase of support vehicles.

Rehabilitation of transit vehicles.1

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

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

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

Construction of small passenger shelters and information kiosks.

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

and ancillary structures).

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

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

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

Air Quality

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

Bicycle and pedestrian facilities.

Other

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

Planning and technical studies.

Grants for training and research programs.

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

Federal-aid systems revisions.

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

Noise attenuation.

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

Acquisition of scenic easements.

Plantings, landscaping, etc.

Sign removal.

Directional and informational signs.

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

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

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

implementation plan.

§ 93.127 Projects exempt from regional

emissions analyses.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 3 are exempt from regional

emissions analysis requirements. The

local effects of these projects with

respect to CO or PM10 concentrations

must be considered to determine if a

hot-spot analysis is required prior to

making a project-level conformity

determination. These projects may then

proceed to the project development

process even in the absence of a

conforming transportation plan and TIP.

A particular action of the type listed in

Table 3 is not exempt from regional
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Proposed Rules 36151

emissions analysis if the MPO in

consultation with other agencies (see

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

FHWA (in the case of a highway project)

or the FTA (in the case of a transit

project) concur that it has 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