[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Proposed Rules]
[Pages 23024-23043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11184]



[[Page 23023]]

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Part II





Environmental Protection Agency





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40 CFR Part 93



Transportation Conformity Rule PM<INF>2.5</INF> and PM<INF>10</INF> 
Amendments; Proposed Rule

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed 
Rules

[[Page 23024]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2008-0540; FRL-8904-1]
RIN 2060-AP29


Transportation Conformity Rule PM<INF>2.5</INF> and 
PM<INF>10</INF> Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing amendments to the transportation conformity 
rule that primarily affect conformity's implementation in 
PM<INF>2.5</INF> and PM<INF>10</INF> nonattainment and maintenance 
areas. EPA is proposing to update the transportation conformity 
regulation in light of the October 17, 2006 final rule that 
strengthened the 24-hour PM<INF>2.5</INF> air quality standard and 
revoked the annual PM<INF>10</INF> standard. In addition, EPA is 
proposing to clarify the regulations concerning hot-spot analyses to 
address a remand from the Court of Appeals for the District of Columbia 
Circuit (Environmental Defense v. EPA, 509 F.3d 553 (DC Cir. 2007)). 
This portion of the proposal applies to PM<INF>2.5</INF> and 
PM<INF>10</INF> nonattainment and maintenance areas as well as carbon 
monoxide nonattainment and maintenance areas.
    The Clean Air Act requires federally supported transportation 
plans, transportation improvement programs, and projects to be 
consistent with (``conform to'') the purpose of the state air quality 
implementation plan. DOT is EPA's federal partner in implementing the 
transportation conformity regulation. EPA has consulted with DOT, and 
they concur with this proposed rule.

DATES: Written comments on this proposal must be received on or before 
June 15, 2009, unless a public hearing is requested by May 26, 2009. If 
a public hearing is requested by a commenter, it will be held June 4, 
2009 at the U.S. Environmental Protection Agency, 2000 Traverwood 
Drive, Ann Arbor, Michigan. If a hearing is requested, written comments 
must be received by June 29, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0540, by one of the following methods:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#29480448474d045b044d464a424c5d694c5948074e465f"><span class="__cf_email__" data-cfemail="29480448474d045b044d464a424c5d694c5948074e465f">[email protected]</span></a>.
    <bullet> Fax: (202) 566-9744.
    <bullet> Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-OAR-2008-0540. Please include a total of 
two copies.
    <bullet> Hand Delivery: Air Docket, Environmental Protection 
Agency, Mailcode: EPA West Building, EPA Docket Center (Room 3334), 
1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. 
EPA-HQ-OAR-2008-0540. Please include two copies. Such deliveries are 
only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0540. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744 and the telephone number for the 
Air and Radiation Docket is (202) 566-1742.
    Public Hearing: If a public hearing is requested, it will be held 
at the U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann 
Arbor, Michigan, on June 4, 2009.

FOR FURTHER INFORMATION CONTACT: Laura Berry, State Measures and 
Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105, e-mail address: <a href="/cdn-cgi/l/email-protection#85e7e0f7f7fcabe9e4f0f7e4c5e0f5e4abe2eaf3"><span class="__cf_email__" data-cfemail="5032352222297e3c31252231103520317e373f26">[email protected]</span></a>, telephone number: (734) 
214-4858, fax number: (734) 214-4052; or Patty Klavon, State Measures 
and Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105, e-mail address: <a href="/cdn-cgi/l/email-protection#ff94939e899091d18f9e8b8b86bf9a8f9ed1989089"><span class="__cf_email__" data-cfemail="f59e9994839a9bdb859481818cb5908594db929a83">[email protected]</span></a>, telephone number: (734) 
214-4476, fax number: (734) 214-4052.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. General Information
II. Background on the Transportation Conformity Rule
III. General Overview of Transportation Conformity for the 2006 
PM<INF>2.5</INF> NAAQS
IV. Baseline Year for Certain 2006 PM<INF>2.5</INF> Nonattainment 
Areas
V. Regional Conformity Tests in 2006 PM<INF>2.5</INF> Nonattainment 
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997 
PM<INF>2.5</INF> NAAQS
VI. Regional Conformity Tests in 2006 PM<INF>2.5</INF> Areas That 
Have 1997 PM<INF>2.5</INF> SIP Budgets
VII. Other Conformity Requirements for 2006 PM<INF>2.5</INF> Areas
VIII. Transportation Conformity in PM<INF>10</INF> Nonattainment and 
Maintenance Areas and the Revocation of the Annual PM<INF>10</INF> 
NAAQS
IX. Response to the December 2007 Hot-Spot Court Decision
X. Statutory and Executive Order Reviews

I. General Information

A. Does this Action Apply to Me?

    Entities potentially regulated by the conformity rule are those 
that adopt,

[[Page 23025]]

approve, or fund transportation plans, programs, or projects under 
title 23 U.S.C. or title 49 U.S.C. Regulated categories and entities 
affected by today's action include:

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                Category                 Examples of regulated  entities
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Local                                    Local transportation and air
government.............................   quality agencies, including
                                          metropolitan planning
                                          organizations (MPOs).
State                                    State transportation and air
government.............................   quality agencies.
Federal                                  Department of Transportation
government.............................   (Federal Highway
                                          Administration (FHWA) and
                                          Federal Transit Administration
                                          (FTA)).
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
proposal. This table lists the types of entities of which EPA is aware 
that potentially could be regulated by the transportation conformity 
rule. Other types of entities not listed in the table could also be 
regulated. To determine whether your organization is regulated by this 
action, you should carefully examine the applicability requirements in 
40 CFR 93.102. If you have questions regarding the applicability of 
this action to a particular entity, consult the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI
    Do not submit this information to EPA through www.regulations.gov 
or e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI information in a disk or CD-ROM that you mail 
to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    <bullet> Explain why you agree or disagree, suggest alternatives 
and substitute language for your requested changes.
    <bullet> Describe any assumptions and provide any technical 
information and/or data that you used.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> Make sure to submit your comments by the comment period 
deadline identified.
3. Docket Copying Costs
    You may be required to pay a reasonable fee for copying docket 
materials.

C. How Do I Get Copies of This Proposed Rule and Other Documents?

1. Docket
    EPA has established an official public docket for this action under 
Docket ID No. EPA-HQ-OAR-2008-0540. You can get a paper copy of this 
Federal Register document, as well as the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action at the official public docket. See 
the ADDRESSES section for its location.
2. Electronic Access
    You may access this Federal Register document electronically 
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this 
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the official public docket is available 
through www.regulations.gov. You may use www.regulations.gov to submit 
or view public comments, access the index listing of the contents of 
the official public docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search,'' then key in the appropriate docket identification number.
    Certain types of information will not be placed in the electronic 
public docket. Information claimed as CBI and other information for 
which disclosure is restricted by statute is not available for public 
viewing in the electronic public docket. EPA's policy is that 
copyrighted material will not be placed in the electronic public docket 
but will be available only in printed, paper form in the official 
public docket.
    To the extent feasible, publicly available docket materials will be 
made available in the electronic public docket. When a document is 
selected from the index list in EPA Dockets, the system will identify 
whether the document is available for viewing in the electronic public 
docket. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in the 
ADDRESSES section. EPA intends to provide electronic access in the 
future to all of the publicly available docket materials through the 
electronic public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to the electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in the electronic public docket. Where practical, 
physical objects will be photographed, and the photograph will be 
placed in the electronic public docket along with a brief description 
written by the docket staff.
    For additional information about the electronic public docket, 
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

II. Background on the Transportation Conformity Rule

A. What Is Transportation Conformity?

    Transportation conformity is required under Clean Air Act section 
176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans, 
transportation improvement programs (TIPs) and federally supported 
highway and transit project activities are consistent with (``conform 
to'') the purpose of the state air quality implementation plan (SIP). 
Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant national ambient 
air quality standards (NAAQS). Transportation conformity applies to 
areas that are designated nonattainment, and those areas redesignated 
to attainment after 1990 (``maintenance areas'') for transportation-
related criteria

[[Page 23026]]

pollutants: Carbon monoxide (CO), ozone, nitrogen dioxide 
(NO<INF>2</INF>) and particulate matter (PM<INF>2.5</INF>, and 
PM<INF>10</INF>).\1\
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    \1\ 40 CFR 93.102(b)(1) defines PM<INF>2.5</INF> and 
PM<INF>10</INF> as particles with an aerodynamic diameter less than 
or equal to a nominal 2.5 and 10 micrometers, respectively.
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    EPA's transportation conformity rule (40 CFR Parts 51 and 93) 
establishes the criteria and procedures for determining whether 
transportation activities conform to the SIP. EPA first promulgated the 
transportation conformity rule on November 24, 1993 (58 FR 62188), and 
subsequently published several other amendments. DOT is EPA's federal 
partner in implementing the transportation conformity regulation. EPA 
has consulted with DOT, which concurs with this proposed rule.
    A few recent amendments to the transportation conformity rule are 
useful background for today's proposal. In a final rule EPA published 
on July 1, 2004 (69 FR 40004), EPA provided conformity procedures for 
state and local agencies under the 1997 8-hour ozone and 
PM<INF>2.5</INF> national ambient air quality standards (NAAQS), among 
other things. EPA's nonattainment area designations for the 1997 8-hour 
ozone and PM<INF>2.5</INF> NAAQS were effective in June 2004 and April 
2005 respectively. The July 2004 update provided guidance and rules for 
implementing conformity for these NAAQS. In addition, on May 6, 2005, 
EPA promulgated a final rule entitled, ``Transportation Conformity Rule 
Amendments for the New PM<INF>2.5</INF> National Ambient Air Quality 
Standard: PM<INF>2.5</INF> Precursors'' (70 FR 24280). This final rule 
specified transportation-related PM<INF>2.5</INF> precursors and when 
they must be considered in transportation conformity determinations in 
PM<INF>2.5</INF> nonattainment and maintenance areas.
    On March 10, 2006, EPA promulgated a final rule (71 FR 12468) 
entitled, ``PM<INF>2.5</INF> and PM<INF>10</INF> Hot-Spot Analyses in 
Project-Level Transportation Conformity Determinations for the New 
PM<INF>2.5</INF> and Existing PM<INF>10</INF> National Ambient Air 
Quality Standards.'' This rule established the criteria and procedures 
for determining which transportation projects must be analyzed for 
local air quality impacts--or ``hot-spots''--in PM<INF>2.5</INF> and 
PM<INF>10</INF> nonattainment and maintenance areas. See Section IX. of 
today's preamble for more information regarding the March 2006 rule; 
see EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm for further information about any of EPA's transportation 
conformity rulemakings.\2\
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    \2\ At this Web site, click on ``Regulations'' to find all of 
EPA's proposed and final rules as well the current transportation 
conformity regulations.
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B. Why Are We Issuing This Proposed Rule?

    Today's proposed rule is necessary because EPA promulgated a final 
rule on October 17, 2006 that changed the PM<INF>2.5</INF> and 
PM<INF>10</INF> NAAQS, as described further below. These revisions to 
the PM<INF>2.5</INF> and PM<INF>10</INF> NAAQS necessitate an update to 
the transportation conformity rule to provide guidance and rules for 
implementing conformity for these NAAQS. Sections III. through VIII. 
describe the proposed changes to the transportation conformity rule 
that are a result of the October 2006 revisions to the PM<INF>2.5</INF> 
and PM<INF>10</INF> NAAQS.
    Today's proposed rule is also necessary because of a court decision 
regarding the March 2006 hot-spot rulemaking. Section IX. of this 
preamble describes the issue, the court's decision, and EPA's proposed 
response.

III. General Overview of Transportation Conformity for the 2006 
PM<INF>2.5</INF> NAAQS

A. Background on 2006 PM<INF>2.5</INF> NAAQS Development

    EPA issued a final rule on October 17, 2006 that strengthened the 
24-hour PM<INF>2.5</INF> NAAQS and revoked the annual PM<INF>10</INF> 
NAAQS (71 FR 61144). In that final rule, EPA strengthened the 24-hour 
PM<INF>2.5</INF> NAAQS from the 1997 level of 65 micrograms per cubic 
meter ([mu]g/m\3\) (average of 98th percentile values for three 
consecutive years) to 35 [mu]g/m\3\, while the level of the annual 
PM<INF>2.5</INF> NAAQS remained unchanged at 15.0 [mu]g/m\3\ (average 
of three consecutive annual average values). This final rule was 
effective on December 18, 2006. EPA selected levels for the final NAAQS 
after completing an extensive review of thousands of scientific studies 
on the impact of fine and coarse particles on public health and 
welfare. For additional information about the October 17, 2006 
rulemaking, the final rule and EPA outreach materials can be found at: 
http://www.epa.gov/air/particlepollution/actions.html.
    The October 2006 rule establishing the 2006 PM<INF>2.5</INF> NAAQS 
did not revoke the 1997 annual or 24-hour PM<INF>2.5</INF> NAAQS. See 
Section D. below for details on how this proposal would interact with 
conformity requirements for those areas designated nonattainment for 
the 1997 PM<INF>2.5</INF> NAAQS.
    EPA signed the final rule designating areas for the 2006 
PM<INF>2.5</INF> NAAQS on December 22, 2008. Conformity for the 2006 
PM<INF>2.5</INF> NAAQS will apply one year after the effective date of 
the nonattainment designations.\3\ The designations for the 2006 
PM<INF>2.5</INF> NAAQS are separate from and do not impact existing 
designations for the 1997 PM<INF>2.5</INF> NAAQS.
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    \3\ The effective date for these nonattainment designations will 
be included in the Federal Register publication of the final 
designations rule.
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B. When Does Conformity Apply for the 2006 PM<INF>2.5</INF> NAAQS?

    Transportation conformity for the 2006 24-hour PM<INF>2.5</INF> 
NAAQS (``2006 PM<INF>2.5</INF> NAAQS'') does not apply until one year 
after the effective date of nonattainment designations for this NAAQS. 
Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) provide a one-year 
grace period from the effective date of designations before 
transportation conformity applies in areas newly designated 
nonattainment for a particular NAAQS.\4\
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    \4\ EPA began the process of notifying state and local agencies, 
via the EPA regional offices, of the timing of conformity under the 
2006 PM<INF>2.5</INF> NAAQS in its April 16, 2007 memorandum 
entitled, ``Transportation Conformity and the Revised 24-hour 
PM<INF>2.5</INF> Standard,'' from Merrylin Zaw-Mon, Director, 
Transportation and Regional Programs Division, EPA Office of 
Transportation and Air Quality, to EPA Regional Air Directors, 
Regions I-X.
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    The following discussion provides more details on the application 
of the one-year grace period in specific types of newly designated 
nonattainment areas for the 2006 PM<INF>2.5</INF> NAAQS in 
metropolitan, donut and isolated rural areas. This information is 
consistent with how conformity for new NAAQS has been implemented in 
the past.
1. Metropolitan Areas
    Metropolitan areas are urbanized areas that have a population 
greater than 50,000 and a designated metropolitan planning organization 
(MPO) responsible for transportation planning per 23 U.S.C. 134. The 
one-year grace period means that, in general, within one year after the 
effective date of the initial nonattainment designation for a given 
pollutant and NAAQS, the area's MPO and DOT must make a conformity 
determination with regard to that pollutant and NAAQS for the area's 
transportation plan and TIP. The procedures for interagency 
consultation process found in 40 CFR 93.105 or a state's approved 
conformity SIP must be used in making conformity determinations for 
transportation plans and TIPs. MPOs must continue to meet conformity 
requirements for any other

[[Page 23027]]

applicable NAAQS, including the 1997 PM<INF>2.5</INF> NAAQS, if the 
area is designated nonattainment or maintenance for such NAAQS as well.
    The one-year grace period for conformity also applies to project-
level conformity determinations (including hot-spot analyses in certain 
cases) in newly designated 2006 PM<INF>2.5</INF> nonattainment areas. 
At the end of the one-year grace period for conformity, requirements 
for project-level conformity determinations must be met for the 2006 
PM<INF>2.5</INF> NAAQS before any new federal approvals for such 
projects can occur. For non-exempt Federal Highway Administration 
(FHWA) or Federal Transit Administration (FTA) projects, a conformity 
determination is normally required before the National Environmental 
Policy Act (NEPA) process is completed, since NEPA is typically the 
first stage requiring approval in a federal project's development. 
However, if the NEPA process was completed before conformity applies, 
then areas that are newly designated as nonattainment may also be 
required to demonstrate conformity for subsequent funding and approvals 
for project phases (e.g., right-of-way acquisition, final design, 
construction). Conformity would be needed for a subsequent project 
phase if it occurs after the grace period has ended, and the project 
has not yet been included in a conformity determination for the 
relevant pollutant and NAAQS or met other applicable conformity 
requirements.
    Before the end of the one-year grace period, FHWA or FTA could 
voluntarily choose to make a project-level conformity determination 
that meets the conformity rule's requirements. The procedures for 
interagency consultation found in 40 CFR 93.105 or a state's approved 
conformity SIP must be used in making project-level conformity 
determinations for the 2006 PM<INF>2.5</INF> NAAQS. As described 
further below in D. of this section, areas that are designated 
nonattainment for both the 1997 PM<INF>2.5</INF> NAAQS and the 2006 
PM<INF>2.5</INF> NAAQS will need to address all of these NAAQS in 
conformity determinations.
    If, at the conclusion of the one-year grace period, the MPO and DOT 
have not made a transportation plan and TIP conformity determination 
for the 2006 PM<INF>2.5</INF> NAAQS, the area would be in a conformity 
``lapse.'' During a conformity lapse, only certain projects can receive 
additional federal funding or approvals to proceed (e.g., exempt 
projects, project phases that were approved before the lapse). The 
practical impact of a conformity lapse will vary on an area-by-area 
basis. For additional information on projects that can proceed during a 
conformity lapse, read the following guidance memoranda that address 
the March 2, 1999 U.S. Court of Appeals decision that affected related 
provisions of the conformity rule (Environmental Defense Fund v. EPA, 
167 F.3d 641 (DC Cir. 1999): DOT's January 2, 2002 guidance, published 
in the Federal Register on February 7, 2002 (67 FR 5882); DOT's May 20, 
2003 and FTA's April 9, 2003 supplemental guidance documents; and, 
EPA's May 14, 1999 guidance memorandum. EPA's current conformity rule 
reflects all of these guidance documents (69 FR 40005-40006).
2. Donut Areas
    For the purposes of transportation conformity, a ``donut'' area is 
the geographic area outside a metropolitan planning area boundary, but 
inside a designated nonattainment or maintenance area boundary that 
includes an MPO (40 CFR 93.101). The conformity requirements for donut 
areas, including the application of the one-year conformity grace 
period, are generally the same as those for metropolitan areas. Within 
one year of the effective date of an area's initial nonattainment 
designation for the 2006 PM<INF>2.5</INF> NAAQS, the existing and 
planned transportation network for the donut portion of the area (as 
well as for the metropolitan portion of the area) must demonstrate 
conformity, or conformity of the metropolitan transportation plan and 
TIP will lapse as described above, and the entire nonattainment area 
will be unable to obtain additional project funding and approvals for 
the duration of the lapse.
    The interagency consultation group for each newly designated 
nonattainment area that includes a donut portion should determine how 
best to consider the donut area transportation system and new donut 
area projects in the MPO's regional emissions analyses and 
transportation plan and TIP conformity determinations. For more 
discussion on how conformity determinations should be made for donut 
areas, see the preamble to the July 1, 2004 conformity rule (69 FR 
40013).
    In nonattainment and maintenance areas with a donut portion, 
adjacent MPOs must meet conformity requirements for the 2006 
PM<INF>2.5</INF> and other applicable NAAQS, including requirements for 
any 1997 PM<INF>2.5</INF> NAAQS for which the donut area is designated 
nonattainment.
    The one-year grace period for conformity also applies to project-
level conformity determinations in newly designated nonattainment areas 
that include a donut portion, as described above for projects in 
metropolitan areas.
3. Isolated Rural Areas
    Isolated rural nonattainment and maintenance areas are areas that 
do not contain or are not part of any metropolitan planning area as 
designated by 23 U.S.C. 134 and 49 U.S.C. 5303 (40 CFR 93.101). 
Isolated rural areas do not have metropolitan transportation plans or 
TIPs required under 23 U.S.C. 134 and 49 U.S.C. 5303 and 5304 for any 
portion of the area, and do not have projects that are part of the 
emissions analysis of any MPO's transportation plan or TIP. Instead, 
projects in such areas are included only in statewide transportation 
improvement programs and statewide transportation plans, when 
appropriate.
    As in other newly designated nonattainment areas, the one-year 
conformity grace period for the 2006 PM<INF>2.5</INF> NAAQS will begin 
on the effective date of an isolated rural area's initial nonattainment 
designation. However, because these areas do not have federally 
required metropolitan transportation plans and TIPs, they are not 
subject to the frequency requirements for conformity determinations on 
transportation plans and TIPs (40 CFR 93.104(b), (c), and (e)). 
Instead, conformity determinations in isolated rural areas are required 
only when a non-exempt FHWA/FTA project(s) needs funding or approval.
    In fact, many isolated rural areas may not have a transportation 
project in need of federal funding or approval for some time after the 
one-year grace period has ended, and therefore, would not have to 
demonstrate conformity before that time. Once the conformity grace 
period has expired, a conformity determination would only be required 
in such areas when a non-exempt FHWA/FTA project needs funding or 
approval. For more information on the conformity requirements for 
isolated rural areas, see 40 CFR 93.109(l); corresponding discussions 
on how to demonstrate conformity in isolated rural areas can also be 
found in the preambles to the November 24, 1993 transportation 
conformity final rule (58 FR 62207) and the August 15, 1997 final rule 
(62 FR 43785).
    Please note that the current regulation's Sec.  93.109(l) would be 
renamed as Sec.  93.109(n) under today's proposal, due to the other 
proposed revisions and additions in this regulatory section. As we are 
simply renumbering this provision, we are not seeking comment because 
it is an administrative change. The basic

[[Page 23028]]

conformity requirements for isolated rural areas remain unchanged.

C. Proposed Definitions for PM<INF>2.5</INF> NAAQS

    EPA is proposing two new definitions to Sec.  93.101 of the 
conformity rule to distinguish between the 1997 PM<INF>2.5</INF> NAAQS 
and the 2006 PM<INF>2.5</INF> NAAQS. These definitions would help 
implement certain conformity requirements in areas that have been 
designated nonattainment for 1997 PM<INF>2.5</INF> NAAQS and/or 2006 
PM<INF>2.5</INF> NAAQS. Some areas designated nonattainment for the 
2006 PM<INF>2.5</INF> NAAQS also are designated nonattainment for the 
1997 PM<INF>2.5</INF> NAAQS. In addition, some areas are designated for 
only the 2006 PM<INF>2.5</INF> NAAQS.
    The proposed addition of these definitions is also similar to the 
existing rule's definitions in 40 CFR 93.101 for the 1-hour ozone NAAQS 
and 8-hour ozone NAAQS, and the proposed definitions are generally 
consistent with how EPA is defining both kinds of PM<INF>2.5</INF> 
areas for air quality planning purposes. EPA also notes that any 
provision of the conformity rule that references only 
``PM<INF>2.5</INF>'' and does not specify which NAAQS will continue to 
apply to any area designated nonattainment for a PM<INF>2.5</INF> 
NAAQS.

D. How Would This Proposal Interact With Existing Conformity 
Requirements for the 1997 PM<INF>2.5</INF> NAAQS?

    Sections IV. through VI. of today's proposal describe proposed 
conformity requirements for areas designated nonattainment for the 2006 
PM<INF>2.5</INF> NAAQS. EPA is not proposing any changes to the 
existing transportation conformity requirements for areas designated 
nonattainment for the 1997 PM<INF>2.5</INF> NAAQS, since EPA's 
nonattainment designations for the 2006 PM<INF>2.5</INF> NAAQS will not 
affect existing 1997 PM<INF>2.5</INF> NAAQS nonattainment designations.
    Nonattainment designations for the 1997 and 2006 PM<INF>2.5</INF> 
NAAQS are different designations with separate SIP requirements, 
different attainment dates, etc. As a result, Clean Air Act section 
176(c)(5) requires conformity requirements to be met in both 1997 and 
2006 PM<INF>2.5</INF> nonattainment and maintenance areas, as 
applicable.
    Some areas designated nonattainment for the 2006 PM<INF>2.5</INF> 
NAAQS have never been subject to PM<INF>2.5</INF> conformity 
requirements. Under today's proposal and Clean Air Act section 
176(c)(5), these areas would be required to meet only 2006 
PM<INF>2.5</INF> conformity requirements, and not conformity 
requirements for the 1997 PM<INF>2.5</INF> NAAQS, because these areas 
are not designated nonattainment for the 1997 PM<INF>2.5</INF> NAAQS.
    Other areas designated nonattainment for the 2006 PM<INF>2.5</INF> 
NAAQS have been designated also, in whole or in part, for the 1997 
PM<INF>2.5</INF> NAAQS. These areas would continue to meet their 
existing conformity requirements for the 1997 PM<INF>2.5</INF> NAAQS as 
well as any additional requirements for the 2006 PM<INF>2.5</INF> 
NAAQS.
    EPA notes that MPOs where both the 1997 and 2006 PM<INF>2.5</INF> 
NAAQS apply would have to determine conformity for both NAAQS. MPOs 
subject to both the 1997 and 2006 PM<INF>2.5</INF> NAAQS will be able 
to:
    <bullet> Use existing transportation models and data for regional 
emissions analyses for both NAAQS, especially where nonattainment area 
boundaries are the same;
    <bullet> Rely on analysis years for conformity determinations that 
are the same for both NAAQS (e.g., analysis years for the last year of 
the transportation plan, an intermediate year, etc.); and
    <bullet> Meet consultation and other conformity requirements 
through the existing processes.
    EPA is also proposing that before budgets for the 2006 
PM<INF>2.5</INF> NAAQS are available, conformity determinations for 
some 2006 PM<INF>2.5</INF> areas would be based on the same conformity 
test (i.e., the budget test) that is being used for the 1997 
PM<INF>2.5</INF> NAAQS. As described in Section VI., EPA is proposing 
that MPOs use any adequate or approved SIP budgets for the 1997 
PM<INF>2.5</INF> NAAQS for conformity determinations that are made 
prior to SIP budgets for the 2006 PM<INF>2.5</INF> NAAQS being 
available.
    Today's proposal does not impact project-level conformity 
requirements for the 1997 PM<INF>2.5</INF> NAAQS. For example, EPA is 
not proposing any changes to the PM<INF>2.5</INF> hot-spot analysis 
requirements, and EPA and FHWA's existing guidance for such analyses 
continues to be available.\5\ For the purposes of PM<INF>2.5</INF> 
conformity, a hot-spot analysis must address the PM<INF>2.5</INF> NAAQS 
for which the area has been designated nonattainment.\6\ See Section 
VII. for further information regarding EPA's proposal for project-level 
conformity requirements for the 2006 PM<INF>2.5</INF> NAAQS.
---------------------------------------------------------------------------

    \5\ ``Transportation Conformity Guidance for Qualitative Hot-
spot Analyses in PM<INF>2.5</INF> and PM<INF>10</INF> Nonattainment 
and Maintenance Areas,'' EPA420-B-06-902, March 2006.
    \6\ EPA notes that today's proposal does not address project 
requirements for the National Environmental Policy Act or other 
environmental programs.
---------------------------------------------------------------------------

    EPA will work with PM<INF>2.5</INF> nonattainment areas as needed 
to ensure that state and local agencies can meet conformity 
requirements for both the applicable 1997 and 2006 PM<INF>2.5</INF> 
NAAQS in a timely and efficient manner. EPA requests comment on whether 
additional information or training will be necessary for conformity 
implementation under the 2006 PM<INF>2.5</INF> NAAQS. If your agency 
submits comments, please be as specific as possible regarding what 
types of situations and issues may need to be addressed in future 
implementation of PM<INF>2.5</INF> conformity requirements.

IV. Baseline Year for Certain 2006 PM<INF>2.5</INF> Nonattainment Areas

A. Background

    Conformity determinations for transportation plans, TIPs, and 
projects not from a conforming transportation plan and TIP must include 
a regional emissions analysis that fulfills Clean Air Act provisions. 
The conformity rule provides for several different regional emissions 
analysis tests that satisfy Clean Air Act requirements in different 
situations. Once a SIP with a motor vehicle emissions budget 
(``budget'') is submitted for an air quality NAAQS and EPA finds the 
budget adequate for conformity purposes or approves it as part of the 
SIP, conformity is demonstrated using the budget test for that 
pollutant or precursor, as described in 40 CFR 93.118.
    Before an adequate or approved SIP budget is available, conformity 
of the transportation plan, TIP, or project not from a conforming 
transportation plan and TIP is demonstrated with the interim emissions 
test(s), as described in 40 CFR 93.119. The interim emissions tests 
include different forms of the ``build/no-build'' test and ``baseline 
year'' test. In general, for the baseline year test, emissions from the 
planned transportation system or project not from a conforming 
transportation plan and TIP are compared to emissions that occurred in 
the baseline year (please refer to Sec.  93.119 for the more detailed, 
specific requirements). This part of today's proposal would update 
Sec.  93.119 of the current conformity rule for the 2006 
PM<INF>2.5</INF> NAAQS. The baseline year for nonattainment areas under 
the 1997 PM<INF>2.5</INF> NAAQS is 2002 (40 CFR 93.119(e)(2)). Sections 
V. and VI. of this proposal go into further detail about how any 
baseline year option would be applied in 2006 PM<INF>2.5</INF> areas.

[[Page 23029]]

B. Proposal

    EPA is proposing that a year more recent than 2002 be used as the 
baseline year for conformity purposes in 2006 PM<INF>2.5</INF> 
nonattainment areas. EPA requests comment on the following proposed 
options:
    <bullet> Option 1: Define the baseline year as 2008;
    <bullet> Option 2: Rather than naming a specific year, define the 
baseline year for conformity purposes as whatever year would be used to 
meet other air quality planning requirements, such as SIP planning and 
inventory requirements;
    <bullet> Option 3: Define the baseline year as 2005.
    Option 2 would establish the baseline year for conformity purposes 
for the 2006 PM<INF>2.5</INF> nonattainment areas as well as any areas 
designated for a PM<INF>2.5</INF> NAAQS that EPA promulgates in the 
future. Therefore, if this option were finalized, the transportation 
conformity rule would not have to be amended in the future to establish 
a new baseline year for conformity if additional NAAQS changes are made 
in the future.
    There are different formulations of regulatory text that EPA could 
use to define the baseline year under Option 2. For example, EPA could 
define the baseline year for any area designated for a PM<INF>2.5</INF> 
NAAQS promulgated after 1997 as the most recent year for which EPA's 
Air Emissions Reporting Requirements (AERR) (40 CFR part 51) requires 
submission of on-road mobile source emissions inventories, as of the 
effective date of EPA's nonattainment designations for such NAAQS. 
Another possibility would be to simply define the conformity baseline 
year as the year that will be used as the baseline for SIP development 
for given NAAQS, which EPA could specify in a guidance memorandum 
issued in the future.
    Option 2 would likely result in the year 2008 as the baseline year 
in 2006 PM<INF>2.5</INF> areas because this is the year anticipated to 
be the baseline year for SIP planning and inventory requirements. The 
year 2008 would also be the most recent year of on-road mobile source 
emissions inventories available for SIP planning purposes when SIPs for 
the 2006 PM<INF>2.5</INF> NAAQS are likely to be due.
    EPA is proposing rule language for Options 1 and 2 in Sec.  
93.119(e)(2)(B), although all three of these options could be 
considered for the final rule. EPA is therefore soliciting comment on 
all three options. While today's action proposes no changes to the 2002 
baseline year for areas designated nonattainment for the 1997 
PM<INF>2.5</INF> NAAQS, we propose to reorganize Sec.  93.119(e)(2) to 
clarify that 2002 applies only to areas designated nonattainment for 
the 1997 PM<INF>2.5</INF> NAAQS.
    The existing interagency consultation process (40 CFR 
93.105(c)(1)(i)) would be used to determine the latest assumptions and 
models for generating baseline year motor vehicle emissions to complete 
any baseline year test. The baseline year emissions level that is used 
in conformity would be required to be based on the latest planning 
assumptions available, the latest emissions model, and appropriate 
methods for estimating travel and speeds as required by 40 CFR 93.110, 
93.111, and 93.122 of the current conformity rule. The baseline year 
test can be completed with a submitted or draft baseline year motor 
vehicle emissions SIP inventory, if the SIP reflects the latest 
information and models. If such a SIP baseline is not available, an 
MPO, in consultation with state and local air agencies, could also 
develop baseline year emissions as part of the conformity analysis.

C. Rationale

    EPA believes that a more recent year than 2002 is appropriate for 
meeting Clean Air Act conformity requirements for 2006 PM<INF>2.5</INF> 
nonattainment areas. EPA also believes that using a more recent year 
than 2002 is required to meet these statutory requirements, and is more 
environmentally protective and relevant for the 2006 PM<INF>2.5</INF> 
NAAQS.
    Coordinating the conformity baseline year with the year used for 
SIP planning and an emission inventory year was EPA's rationale for 
using 2002 as the baseline year for conformity tests in existing 
PM<INF>2.5</INF> nonattainment areas for the 1997 NAAQS. As described 
in the July 1, 2004 final rule (69 FR 40015), EPA selected 2002 as the 
conformity baseline year because 2002 was identified as the anticipated 
emission inventory base year for the SIP planning process under the 
1997 PM<INF>2.5</INF> NAAQS.\7\ EPA continues to believe that 
coordinating the conformity's baseline with other data collection and 
inventory requirements would allow state and local governments to use 
their resources more efficiently. However, for the 2006 
PM<INF>2.5</INF> nonattainment areas, the year 2002 does not have the 
same relevance and does not provide the same level of environmental 
protection as a more recent year.
---------------------------------------------------------------------------

    \7\ Also, the AERR requires submission of point, nonpoint, and 
mobile source emissions inventories every three years, and 2002 was 
one of those required years for such updates.
---------------------------------------------------------------------------

    In choosing the baseline year for the 2006 PM<INF>2.5</INF> NAAQS, 
EPA also believes it could be important to coordinate the conformity 
rule's baseline year with the year ultimately used as a baseline for 
SIP planning for the 2006 PM<INF>2.5</INF> NAAQS as well as other 
emissions inventory requirements. EPA has proposed 2008 as a baseline 
year for conformity purposes (Option 1) and believes such an option 
would be appropriate to meet Clean Air Act conformity requirements. EPA 
selected 2002 for the baseline year tests in 1997 8-hour ozone and 
PM<INF>2.5</INF> nonattainment areas in the July 1, 2004 final rule (69 
FR 40015) not only because EPA believed that 2002 was the most 
appropriate measure for meeting Clean Air Act conformity requirements 
not to worsen air quality or delay timely attainment or achievement of 
any required interim milestone prior to SIP budgets being established, 
but also because EPA believed it was important to have transportation 
and air quality planning coordinated. Having consistent baseline years 
for SIPs, conformity determinations and other emissions inventory 
requirements helps to achieve this goal.
    Alternatively, EPA has also proposed 2005 as a baseline year for 
conformity purposes (Option 3) because this year is also relevant for 
2006 PM<INF>2.5</INF> areas. The year 2005 is more recent than 2002, 
and 2005 data would also be available for other inventory purposes such 
as the AERR. In addition, most 2006 PM<INF>2.5</INF> areas will be 
designated nonattainment based in part on air quality monitoring data 
from the year 2005. EPA is required to make nonattainment designations 
for PM<INF>2.5</INF> based on the most recent three years of air 
quality data, i.e., 2005-2007 data for most 2006 PM<INF>2.5</INF> 
areas. For this reason, 2005 is being proposed as a baseline year for 
conformity purposes.
    Whereas Options 1 and 3 would apply specifically to the 2006 
PM<INF>2.5</INF> NAAQS, EPA proposes in Option 2 to generalize the 
language for the baseline year for areas designated under any 
PM<INF>2.5</INF> NAAQS established after 1997. Given that the Clean Air 
Act requires EPA to review the NAAQS for possible revision once every 
five years, adopting Option 2 would standardize the process for 
selecting an appropriate baseline year to use in meeting conformity 
requirements before SIP budgets have been established for any future 
PM<INF>2.5</INF> NAAQS. This would enable EPA, MPOs and other 
transportation planners to identify the appropriate baseline year for 
conformity purposes without EPA having to amend the conformity 
regulation first.
    In other words, Option 2 would allow EPA to identify an appropriate 
baseline

[[Page 23030]]

year in an expeditious manner for transportation conformity purposes. 
As a result, MPOs and other transportation planners would understand 
conformity requirements for future PM<INF>2.5</INF> NAAQS revisions 
more quickly, which may, in turn, also allow more time to prepare and 
complete necessary conformity determinations.
    EPA believes that Option 2 would result in an appropriate baseline 
year for a given PM<INF>2.5</INF> NAAQS. Since Option 2 is based on the 
same criteria that have been used for proposed Option 1 and for 
establishing baseline years for other NAAQS (58 FR 62191, 69 FR 40014), 
EPA believes this option would also result in an environmentally 
protective and legal baseline year for conformity under the 2006 
PM<INF>2.5</INF> NAAQS and any future PM<INF>2.5</INF> NAAQS revisions. 
Finalizing Option 2 would most likely result in a baseline year of 2008 
for the 2006 PM<INF>2.5</INF> NAAQS.
    If the regulatory text for this option referred to the AERR 
requirement, the option would ensure that areas designated 
nonattainment for the 2006 PM<INF>2.5</INF> NAAQS, as well as areas 
designated for revised PM<INF>2.5</INF> NAAQS in the future, would use 
the year for which the most recent emissions inventories are required 
to be submitted as of the effective date of EPA's final designations. 
The regulatory text for Option 2 could also be written to refer to the 
year that will be used as the baseline year for SIP development for a 
given PM<INF>2.5</INF> NAAQS.
    In either case, under Option 2 EPA would most likely clarify what 
year is to be used for the baseline year test by issuing a memorandum. 
If this option were finalized, EPA would issue such a memorandum prior 
to conformity requirements applying.
    EPA requests comment on all of these options. Though commenters can 
simply express a preference, providing rationale for a preference is 
especially useful to EPA. In particular, EPA seeks comment on whether 
state and local agencies believe that establishing the baseline year 
using Option 2 presents any implementation concerns, and if so, how EPA 
could address such concerns.

V. Regional Conformity Tests in 2006 PM<INF>2.5</INF> Nonattainment 
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997 
PM<INF>2.5</INF> NAAQS

    This part of the proposal discusses regional conformity tests for 
nonattainment areas for the 2006 PM<INF>2.5</INF> NAAQS that do not 
have adequate or approved PM<INF>2.5</INF> SIP budgets for the 1997 
NAAQS. This proposal would apply to 2006 PM<INF>2.5</INF> nonattainment 
areas that were not covered by the 1997 PM<INF>2.5</INF> NAAQS, as well 
as nonattainment areas for both PM<INF>2.5</INF> NAAQS that do not have 
an adequate or approved 1997 PM<INF>2.5</INF> SIP budget. EPA would 
address conformity tests for these areas under proposed section 
93.109(j) of the conformity rule. See Section VI. of today's proposal 
for conformity tests in 2006 PM<INF>2.5</INF> areas that have adequate 
or approved SIP budgets for the 1997 PM<INF>2.5</INF> NAAQS.
    Note that this section of the preamble proposes new requirements 
for conformity only under the 2006 PM<INF>2.5</INF> NAAQS. This 
proposal does not address the requirements for demonstrating conformity 
for the 1997 PM<INF>2.5</INF> NAAQS.

A. Conformity After 2006 PM2.5 SIP Budgets Are Adequate or Approved

1. Proposal
    Once a SIP for the 2006 PM<INF>2.5</INF> NAAQS is submitted with a 
budget(s) that EPA has found adequate or approved, EPA proposes that 
the budget test must be used in accordance with 40 CFR 93.118 to 
complete all applicable regional emissions analyses for the 2006 
PM<INF>2.5</INF> NAAQS. Conformity would be demonstrated if the 
transportation system emissions reflecting the proposed transportation 
plan, TIP, or project not from a conforming transportation plan and TIP 
were less than or equal to the motor vehicle emissions budget level 
defined by the SIP as being consistent with Clean Air Act requirements.
    The first SIP for the 2006 PM<INF>2.5</INF> NAAQS could be a 
control strategy SIP required by the Clean Air Act (i.e., reasonable 
further progress SIP or attainment demonstration) or a maintenance 
plan. States could also voluntarily choose to submit an ``early 
progress SIP'' prior to required SIP submissions. Early progress SIPs 
must demonstrate a significant level of future emissions reductions 
from a previous year's emissions. For example, an area could submit an 
early progress SIP for the 2006 PM<INF>2.5</INF> NAAQS that 
demonstrates a specific percentage of emissions reductions (e.g., 5-
10%) in an area's attainment year from the baseline year emissions 
(e.g., 2008). An early progress SIP would include emissions inventories 
for all emissions sources for the entire 2006 PM<INF>2.5</INF> 
nonattainment area and would meet applicable requirements for 
reasonable further progress SIPs. EPA has discussed this option in past 
conformity rule preambles, e.g., the July 1, 2004 transportation 
conformity final rule (69 FR 40028), and many states have established 
early progress SIP budgets for conformity purposes.
    Whatever the case, the interim emissions test(s) would no longer be 
used for direct PM<INF>2.5</INF> or a relevant precursor once an 
adequate or approved SIP budget for the 2006 PM<INF>2.5</INF> NAAQS is 
established for the pollutant or precursor. EPA encourages states to 
develop their future 2006 PM<INF>2.5</INF> SIPs in consultation with 
MPOs, state and local transportation agencies, and local air quality 
agencies to facilitate future conformity determinations. Once EPA's 
nonattainment designations are finalized, EPA Regions would be 
available to assist states in the development of early progress SIPs 
for the 2006 PM<INF>2.5</INF> NAAQS, if desired.
2. Rationale
    EPA believes that this proposal meets statutory requirements for 
conformity determinations that occur after SIP budgets are available 
for the 2006 PM<INF>2.5</INF> NAAQS. Section 176(c) of the Clean Air 
Act states that transportation activities must ``conform to an 
implementation plan * * * '' (SIP) and states further that conformity 
to an implementation plan means conformity to the SIP's purpose. Once 
EPA finds a budget for the 2006 PM<INF>2.5</INF> NAAQS adequate or 
approves the SIP that includes it, the budget test provides the best 
means to determine whether transportation plans and TIPs meet the 
statutory obligations in Clean Air Act sections 176(c)(1)(A) and (B) 
for that NAAQS. That is, the budget test best shows that transportation 
plans and TIPs conform to the SIP's purpose of eliminating or reducing 
the severity and number of violations of the NAAQS and achieving 
expeditious attainment of the NAAQS (176(c)(1)(A)); and best confirms 
the requirement that transportation plans and TIPs not cause or 
contribute to any new violation, worsen an existing violation, or delay 
timely attainment or any required interim milestone (176(c)(1)(B)). The 
budget test also best demonstrates that transportation plans and TIPs 
comply with the statutory obligation to be consistent with the 
emissions estimates in SIPs, according to Clean Air Act section 
176(c)(2)(A). By being consistent with the on-road mobile source 
emissions levels in the SIP, transportation planners can ensure that 
their activities remain consistent with state and local air quality 
goals to protect public health.

B. Conformity Before 2006 PM2.5 SIP Budgets Are Adequate or Approved

1. Proposal
    EPA is proposing that these 2006 PM<INF>2.5</INF> nonattainment 
areas meet one of the following interim emissions tests for

[[Page 23031]]

conformity determinations conducted before adequate or approved 2006 
24-hour PM<INF>2.5</INF> SIP budgets are established:
    <bullet> The build-no-greater-than-no-build test (``build/no-build 
test''), or
    <bullet> The no-greater-than-baseline year emissions test 
(``baseline year test'').
    Again, this part of the proposal would apply only in cases where a 
2006 PM<INF>2.5</INF> area does not have adequate or approved SIP 
budgets for either the 2006 or 1997 PM<INF>2.5</INF> NAAQS. Section VI. 
of the proposal covers the case where a 2006 PM<INF>2.5</INF> 
nonattainment area has a SIP budget for the 1997 PM<INF>2.5</INF> 
NAAQS.
    This proposal is similar to the transportation conformity rule at 
40 CFR 93.119(e) for nonattainment areas for the 1997 PM<INF>2.5</INF> 
NAAQS. Today's proposal would allow 2006 PM<INF>2.5</INF> nonattainment 
areas without SIP budgets to choose between the two interim emissions 
tests, rather than require that one specific test or both tests be 
completed. Conformity would be demonstrated under the proposal if the 
transportation emissions reflecting the proposed transportation plan or 
TIP (build) were less than or equal to either the emissions from the 
existing transportation system (no-build), or the level of motor 
vehicle emissions in the baseline year, as described in 40 CFR 93.119. 
A full discussion of the proposed baseline year options for the 2006 
PM<INF>2.5</INF> NAAQS can be found in Section IV. of today's notice.
2. Rationale
    EPA believes that this proposal meets statutory requirements for 
conformity determinations that occur before SIP budgets are available 
for the 2006 PM<INF>2.5</INF> NAAQS. EPA believes it is appropriate to 
provide flexibility and allow 2006 PM<INF>2.5</INF> areas to meet only 
one interim emissions test before adequate or approved PM<INF>2.5</INF> 
SIP budgets are established. This proposal meets statutory requirements 
and parallels the current rule's requirements for 1997 PM<INF>2.5</INF> 
nonattainment areas (69 FR 40028-40031), which were upheld by an 
October 2006 court decision. Environmental Defense v. EPA, 467 F.3d 
1329 (DC Cir. 2006).\8\ In addition, this proposal is consistent with 
past rulemakings for interim emissions test requirements for other 
pollutants, as described below.
---------------------------------------------------------------------------

    \8\ Petitioners challenged several aspects of the conformity 
regulations. In its decision, the U.S. Court of Appeals for the 
District of Columbia Circuit upheld EPA's regulations at 40 CFR 
93.119(b)(2), (d), and (e) ``because the Act does not require that 
activities involving transportation actually reduce pollutants, but 
merely not frustrate an implementation plan's purpose to reduce 
overall emissions.'' The court also upheld EPA's regulations at 40 
CFR 93.118(b), (d), and (e)(6). The court vacated a narrow provision 
at 40 CFR 93.109(e)(2)(v) which had allowed 8-hour ozone areas to 
avoid using their existing 1-hour budgets under certain 
circumstances. This provision was removed from the transportation 
conformity regulation in the January 24, 2008 final rule.
---------------------------------------------------------------------------

    Using either the build/no-build test or baseline year test is 
sufficient to meet Clean Air Act section 176(c)(1)(B) requirements that 
transportation activities do not cause new air quality violations, 
worsen existing violations, or delay timely attainment or achievement 
of interim reductions or milestones. The baseline year and the build/
no-build tests are sufficient for demonstrating conformity when an area 
does not have a SIP budget for a portion of a nonattainment area.
    Based on the Clean Air Act, EPA has previously determined that only 
ozone and CO areas of higher classifications \9\ are required to also 
satisfy section 176(c)(3)(A)(iii) requirements during the time period 
before adequate or approved SIP budgets are available (58 FR 3782-3783; 
62 FR 43784-43785; 69 FR 40018, 40019-40031). As a result, the current 
rule requires these ozone and CO areas to meet both interim emissions 
tests, rather than only one test.
---------------------------------------------------------------------------

    \9\ That is, ozone areas classified as moderate and above, and 
CO areas classified as moderate with design value greater than 12.7 
ppm and serious.
---------------------------------------------------------------------------

    However, the current conformity rule already allows areas 
designated for the other pollutants, as well as the lower 
classifications of ozone and CO, to conform based on only one interim 
emissions test, rather than having to complete two tests and thereby 
contribute further reductions towards attainment. EPA proposes that the 
2006 PM<INF>2.5</INF> areas also be required to meet only one of the 
interim emissions tests to meet the Clean Air Act's requirements in 
section 176(c)(1)(B). For more information and the full rationale for 
allowing some areas to conform based on only one interim emissions 
test, see the November 24, 1993 final rule (58 FR 62197) that addressed 
interim requirements for PM<INF>10</INF> and NO<INF>2</INF> areas, and 
the July 1, 2004 final rule (69 FR 40029) that established interim 
requirements for 1997 PM<INF>2.5</INF> areas.
    EPA believes that the no-greater-than-baseline year interim 
emissions test is an appropriate test for meeting section 176(c)(1)(B) 
requirements in 2006 PM<INF>2.5</INF> nonattainment areas. By 
definition, the no-greater-than baseline year test ensures that 
emissions from on-road mobile sources are no greater than they were 
during the baseline year that will most likely be used for 2006 
PM<INF>2.5</INF> NAAQS SIP planning purposes. If future on-road 
emissions do not increase above their base year levels, applicable 
statutory requirements are met.
    Finally, the build/no-build test would also allow a 2006 
PM<INF>2.5</INF> area to meet statutory requirements. As described 
above, the build/no-build test requires a regional emissions analysis 
to demonstrate that the emissions from the transportation system in 
future years, if it included the proposed action and all other expected 
regionally significant projects, would be less than the emissions from 
the current transportation system in future years. Since a new 
transportation plan, TIP, or project (in the build scenario) could not 
result in regional emissions that are higher than those that would 
occur in the absence of new transportation activities (in the no-build 
scenario) for the system, the Clean Air Act section 176(c)(1)(B) 
requirements are met. For these reasons, EPA believes that the build/
no-build test continues to be an appropriate interim test prior to SIP 
budgets being available.

C. General Implementation of Regional Tests

    This proposal would apply the existing conformity rule's general 
requirements for PM<INF>2.5</INF> regional emissions analyses in 2006 
PM<INF>2.5</INF> areas that do not have adequate or approved SIP 
budgets for the 1997 PM<INF>2.5</INF> NAAQS. EPA is including this 
discussion of the existing regulation's requirements for clarity, to 
help readers understand how the existing regulation would apply to 
areas designated nonattainment for the 2006 PM<INF>2.5</INF> NAAQS. 
However, EPA is not soliciting comment on these existing requirements 
that we are not proposing to change. The following examples are 
intended to illustrate how today's proposal would be implemented in 
practice for 2006 PM<INF>2.5</INF> areas without adequate or approved 
1997 PM<INF>2.5</INF> SIP budgets.
1. Decisions Made Through the Interagency Consultation Process
    The existing rule's consultation process would be used to determine 
the test for completing any regional emissions analysis for the 2006 
PM<INF>2.5</INF> NAAQS, as required by 40 CFR 93.105(c)(1)(i). The 
existing interagency consultation process would also be used to 
determine the latest assumptions and models for generating motor 
vehicle emissions regardless of the test used. Refer to Section IV. of 
this preamble for details about generating baseline year emissions if 
that interim emissions test is selected for a given conformity 
determination.
    The consultation process would also be used to determine which 
analysis

[[Page 23032]]

years should be selected for regional emissions analyses. Before an 
adequate or approved 2006 PM<INF>2.5</INF> budget is available, areas 
would be able to choose, through interagency consultation, either 
interim emissions test for each conformity determination. However, the 
same test would be required to be used for each analysis year for a 
given determination. EPA believes that sufficient flexibility exists 
without mixing and matching interim emissions tests for different 
analysis years within one conformity determination, which is 
unnecessarily complicated and may indicate that an area would not 
conform using one test consistently.
2. General Conformity Test Requirements for All Areas
    Regional emissions analyses under this proposal would be 
implemented through existing conformity requirements such as 40 CFR 
93.118, 93.119, and 93.122. For example, the existing conformity rule 
requires that only certain years within the transportation plan (or 
alternate timeframe) be examined. Under 40 CFR 93.118(d), the following 
years would be analyzed for the budget test with 2006 PM<INF>2.5</INF> 
SIP budgets:
    <bullet> The attainment year for the 2006 PM<INF>2.5</INF> NAAQS 
(if it is within the timeframe of the transportation plan and 
conformity determination);
    <bullet> The last year of the timeframe of the conformity 
determination (40 CFR 93.106(d)); and
    <bullet> Intermediate years as necessary so that analysis years are 
no more than ten years apart.
    For the interim emissions tests, the existing conformity rule (40 
CFR 93.119(g)) requires the following analysis years:
    <bullet> A year no more than five years beyond the year in which 
the conformity determination is being made;
    <bullet> The last year of the timeframe of the conformity 
determination (as described in 40 CFR 93.106(d));
    <bullet> Intermediate years as necessary so that analysis years are 
no more than 10 years apart.
    See the relevant regulatory sections of the conformity rule and the 
July 1, 2004 final rule preamble for further background on how tests 
have been implemented for other pollutants and standards (69 FR 40020).
3. Cases Involving Multi-Jurisdictional Areas
    In July 2004, EPA issued a guidance document for implementing 
conformity requirements in multi-jurisdictional areas.\10\ Multi-
jurisdictional areas are nonattainment and maintenance areas with 
multiple MPOs, one or more MPOs and a donut area, or multi-state areas. 
EPA believes that this guidance should also apply to 2006 
PM<INF>2.5</INF> areas with multiple jurisdictions.
---------------------------------------------------------------------------

    \10\ ``Companion Guidance for the July 1, 2004, Final 
Transportation Conformity Rule: Conformity Implementation in Multi-
Jurisdictional Nonattainment and Maintenance Areas for Existing and 
New Air Quality Standard,'' EPA40-B-04-012, July 2004, found on 
EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
---------------------------------------------------------------------------

    There are two parts of this existing guidance that are most 
relevant for implementing conformity for multi-jurisdictional 2006 
PM<INF>2.5</INF> areas that do not have adequate or approved 1997 
PM<INF>2.5</INF> SIP budgets. Part 2 of this guidance describes how 
conformity would be implemented in all 2006 PM<INF>2.5</INF> areas 
before adequate or approved SIP budgets are available for an applicable 
NAAQS. Part 3 of this guidance is relevant for meeting conformity 
requirements once adequate or approved 2006 PM<INF>2.5</INF> SIP 
budgets are available. For example, Part 3 of this guidance describes 
how a state or MPO in a multi-state nonattainment area can operate 
independently from other states/MPOs for conformity purposes once 
adequate or approved SIP budgets for a state are established. This same 
conformity guidance would also apply for the 2006 PM<INF>2.5</INF> 
NAAQS in these types of areas. Part 3 would also apply to the cases 
where subarea budgets are established for a nonattainment area within 
one state with multiple MPOs. For further information, please refer to 
EPA's 2004 multi-jurisdictional conformity guidance.

VI. Regional Conformity Tests in 2006 PM<INF>2.5</INF> Areas That Have 
Adequate or Approved 1997 PM<INF>2.5</INF> SIP Budgets

    This section proposes the conformity tests for completing regional 
emissions analyses in areas designated for the 2006 PM<INF>2.5</INF> 
NAAQS with adequate or approved SIP budgets for the 1997 
PM<INF>2.5</INF> NAAQS that cover either part or all of the 2006 
PM<INF>2.5</INF> area. EPA proposes to address conformity tests for 
these areas under a new section 93.109(k). See Section V. of today's 
proposal for conformity tests in 2006 PM<INF>2.5</INF> areas that do 
not have an adequate or approved 1997 PM<INF>2.5</INF> SIP budget. As 
stated elsewhere, EPA is not proposing any changes in conformity 
requirements for the 1997 PM<INF>2.5</INF> NAAQS.

A. Conformity After 2006 PM<INF>2.5</INF> SIP Budgets Are Adequate or 
Approved

1. Proposal
    Once a SIP for the 2006 PM<INF>2.5</INF> NAAQS is submitted with 
budget(s) that EPA has found adequate or approved, EPA proposes that 
the budget test must be used in accordance with 40 CFR 93.118 to 
complete all applicable regional emissions analyses for the 2006 
PM<INF>2.5</INF> NAAQS. Conformity would be demonstrated if the 
transportation system emissions reflecting the proposed transportation 
plan, TIP, or project not from a conforming transportation plan and TIP 
were less than or equal to the motor vehicle emissions budget level 
defined by the SIP as being consistent with Clean Air Act requirements.
    The first submitted SIP for the 2006 PM<INF>2.5</INF> NAAQS may be 
an attainment demonstration or a maintenance plan. Nonattainment areas 
for the 2006 PM<INF>2.5</INF> NAAQS could also voluntarily choose to 
submit an ``early progress SIP'' to establish budgets for conformity 
purposes prior to required SIPs. See Section V. for further details on 
requirements for early progress SIPs. EPA has discussed this option in 
past conformity rule preamble, e.g., the July 1, 2004 transportation 
conformity final rule (69 FR 40028), and some states have established 
early progress SIP budgets for conformity purposes.
    Whatever the case, interim emissions tests and/or any existing 1997 
PM<INF>2.5</INF> SIP budget would no longer be used for conformity in 
2006 PM<INF>2.5</INF> areas for direct PM<INF>2.5</INF> or a relevant 
precursor once an adequate or approved SIP budget for the 2006 
PM<INF>2.5</INF> NAAQS is established for the pollutant or precursor. 
Once a SIP budget for the 2006 PM<INF>2.5</INF> NAAQS is adequate or 
approved, the budget test for 2006 PM<INF>2.5</INF> conformity would be 
done based on 24-hour emissions (i.e., tons per day). As noted earlier 
in Section III.D., areas that were also designated for the 1997 
PM<INF>2.5</INF> NAAQS would continue to meet their existing conformity 
requirements for the 1997 PM<INF>2.5</INF> NAAQS, which would include a 
regional emissions analysis based on annual emissions (i.e., tons per 
year). The conformity rule at 40 CFR 93.105 requires consultation on 
the development of SIPs; EPA encourages states to consult with MPOs, 
state and local transportation agencies, and local air quality agencies 
sufficiently early when developing 2006 PM<INF>2.5</INF> SIPs to 
facilitate future conformity determinations. Once EPA's nonattainment 
designations are finalized, EPA Regions would be available to assist 
states in developing

[[Page 23033]]

early progress SIPs for the 2006 PM<INF>2.5</INF> NAAQS, if desired.
2. Rationale
    EPA's rationale for the use of the budget test once adequate or 
approved SIP budgets addressing the 2006 PM<INF>2.5</INF> NAAQS are 
available is found in Section V.A.2. of this preamble, and not repeated 
here.

B. Conformity Before 2006 PM<INF>2.5</INF> SIP Budgets Are Adequate or 
Approved

1. Proposal
    Where all or a portion of the 2006 PM<INF>2.5</INF> area is covered 
by adequate or approved 1997 PM<INF>2.5</INF> budgets, EPA is proposing 
that the 1997 budgets would be used for 2006 PM<INF>2.5</INF> 
conformity. In addition, in the case where the 1997 budget does not 
cover the entire 2006 PM<INF>2.5</INF> area, EPA is proposing that one 
of the interim emissions tests would also be used, as described below. 
Section IV. of this proposal covers the proposed change to the baseline 
year test and Section V. covers interim emissions tests in 2006 
PM<INF>2.5</INF> areas before adequate or approved SIP budgets for the 
2006 PM<INF>2.5</INF> NAAQS are available.
    Please note that this proposal is for completing conformity under 
the 2006 PM<INF>2.5</INF> NAAQS before 2006 PM<INF>2.5</INF> SIP 
budgets are established. For areas designated nonattainment for the 
2006 PM<INF>2.5</INF> NAAQS where all, or a portion, of the area is 
covered by adequate or approved 1997 PM<INF>2.5</INF> SIP budgets, EPA 
is proposing that the budget test using 1997 PM<INF>2.5</INF> SIP 
budgets serve as a proxy for the 2006 PM<INF>2.5</INF> NAAQS until 2006 
PM<INF>2.5</INF> SIP budgets are available.
    Many nonattainment areas for the 1997 PM<INF>2.5</INF> NAAQS may 
have adequate or approved SIP budgets for the 1997 annual 
PM<INF>2.5</INF> NAAQS. For areas that use annual PM<INF>2.5</INF> 
budgets to meet 2006 PM<INF>2.5</INF> requirements, a regional 
emissions analysis would be done based on an analysis of annual, rather 
than 24-hour, emissions (i.e., tons per year).
    Today's proposal is based on EPA's experience in establishing 
conformity requirements for areas designated for the 1997 8-hour ozone 
NAAQS that had SIP budgets for the 1-hour ozone NAAQS, found in 40 CFR 
93.109(e)(2). This proposal covers the four possible scenarios that 
could result when areas are designated nonattainment for the 2006 
PM<INF>2.5</INF> NAAQS: \11\
---------------------------------------------------------------------------

    \11\ Although all four scenarios are included in this proposal, 
most of the 2006 PM<INF>2.5</INF> areas that have 1997 
PM<INF>2.5</INF> budgets will be Scenario 1 areas.
---------------------------------------------------------------------------

    <bullet> Scenario 1: The 2006 PM<INF>2.5</INF> area nonattainment 
boundary is the same as the 1997 PM<INF>2.5</INF> area boundary.
    <bullet> Scenario 2: The 2006 PM<INF>2.5</INF> area is smaller than 
(and completely within) the 1997 PM<INF>2.5</INF> area boundary.
    <bullet> Scenario 3: The 2006 PM<INF>2.5</INF> area is larger than 
(and contains) the 1997 PM<INF>2.5</INF> area boundary.
    <bullet> Scenario 4: The 2006 PM<INF>2.5</INF> area boundary 
overlaps with a portion of the 1997 PM<INF>2.5</INF> area boundary.
    These four boundary scenarios are the same as the four boundary 
scenarios EPA described for the 1997 8-hour ozone areas that had 
existing 1-hour ozone budgets. EPA's 2004 guidance entitled, 
``Companion Guidance for the July 1, 2004 Final Transportation 
Conformity Rule, Conformity Implementation in Multi-Jurisdictional 
Nonattainment and Maintenance Areas for Existing and New Air Quality 
Standards,'' (EPA40-B-04-012), contains diagrams of the four scenarios 
for 8-hour ozone areas. Readers may be interested in reviewing these 
diagrams as they consider the following proposals. This document can be 
found on EPA's transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
    The following paragraphs describe today's proposals for each 
possible scenario for 2006 PM<INF>2.5</INF> nonattainment areas.
    Scenario 1: 2006 PM2.5 areas where the nonattainment boundary is 
exactly the same as the 1997 PM2.5 boundary. In this case, the 2006 and 
1997 PM<INF>2.5</INF> nonattainment boundaries cover exactly the same 
geographic area. EPA proposes to require such areas to meet the budget 
test for the 2006 PM<INF>2.5</INF> NAAQS using existing adequate or 
approved SIP budgets for the 1997 PM<INF>2.5</INF> NAAQS.
    Scenario 2: 2006 PM2.5 areas where the boundary is smaller than and 
within the 1997 PM2.5 boundary. In this case, the 2006 PM<INF>2.5</INF> 
nonattainment area is smaller than and completely encompassed by the 
1997 PM<INF>2.5</INF> nonattainment boundary. EPA proposes to require 
such areas to meet one of the following versions of the budget test:
    <bullet> The budget test using the subset or portion of existing 
adequate or approved 1997 PM<INF>2.5</INF> SIP budgets that applies to 
the 2006 PM<INF>2.5</INF> nonattainment area, where such portion(s) can 
be appropriately identified; or
    <bullet> The budget test using the existing adequate or approved 
1997 PM<INF>2.5</INF> SIP budgets for the entire 1997 PM<INF>2.5</INF> 
nonattainment area. In this case, any additional reductions beyond 
those addressed by control measures in the 1997 PM<INF>2.5</INF> SIP 
would be required to come from the 2006 PM<INF>2.5</INF> nonattainment 
area as described below.
    Under today's proposal, areas could choose either test each time 
they make a conformity determination. For any particular conformity 
determination, however, the same choice would have to be used for each 
analysis year. EPA believes that to do otherwise would be unnecessarily 
complicated and may indicate that one test option used consistently for 
all analysis years would not demonstrate conformity. The consultation 
process would be used to determine whether using a portion of a 1997 
PM<INF>2.5</INF> SIP budget is appropriate and feasible, and if so, how 
deriving such a portion would be accomplished. See the preamble of the 
July 1, 2004 final rule (69 FR 40022-40023) for a description of a 
similar provision for the 1997 8-hour ozone NAAQS.
    EPA is proposing that a conformity determination using the entire 
1997 PM<INF>2.5</INF> budget would include a comparison between the on-
road regional emissions produced in the entire 1997 PM<INF>2.5</INF> 
area and the existing 1997 PM<INF>2.5</INF> SIP budget(s). However, if 
additional reductions are required to meet conformity beyond those 
produced by control measures in the 1997 PM<INF>2.5</INF> SIP budgets, 
EPA proposes that those reductions must be obtained from within the 
2006 PM<INF>2.5</INF> nonattainment area only, since the conformity 
determination would be for the 2006 PM<INF>2.5</INF> NAAQS.
    Scenario 3: 2006 PM2.5 areas where the boundary is larger than the 
1997 PM2.5 boundary. In this case, an entire 1997 PM<INF>2.5</INF> 
nonattainment or maintenance area would be within a larger 2006 
PM<INF>2.5</INF> nonattainment area and the 1997 PM<INF>2.5</INF> 
budgets would not cover the entire 2006 PM<INF>2.5</INF> nonattainment 
area. EPA proposes to require such areas to meet one of the following:
    <bullet> The budget test using the 1997 PM<INF>2.5</INF> budget(s) 
for the 1997 PM<INF>2.5</INF> area, that is, the portion of the 2006 
PM<INF>2.5</INF> area that lies within the 1997 PM<INF>2.5</INF> area 
boundary, and one of the interim emissions tests for either the 
remaining portion of the 2006 PM<INF>2.5</INF> nonattainment area, the 
entire 2006 PM<INF>2.5</INF> area, or the entire portion of the 2006 
PM<INF>2.5</INF> area within an individual state, if 1997 
PM<INF>2.5</INF> budgets are established in each state in a multi-state 
area; or
    <bullet> The budget test using the existing adequate or approved 
1997 PM<INF>2.5</INF> SIP budgets for the entire 2006 PM<INF>2.5</INF> 
nonattainment area.\12\
---------------------------------------------------------------------------

    \12\ While the existing regulation for 8-hour ozone areas does 
not explicitly contain this option, it was addressed in the preamble 
to the final rule addressing 8-hour ozone areas (July 1, 2004, 69 FR 
40027).

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

[[Page 23034]]

    Under this proposal, the budget test would be completed according 
to the requirements in 40 CFR 93.118, and the interim emissions test 
requirements of 40 CFR 93.119.
    Once an area selects a particular interim emissions test and the 
geographic area it will address, EPA proposes that the same test must 
be used consistently for all analysis years. The consultation process 
would have to be used to determine which analysis years should be 
selected for regional emissions analyses where the budget test and 
interim emissions tests are used. It may be possible to choose analysis 
years that would satisfy both the budget and interim emissions test 
requirements for areas using both tests prior to adequate or approved 
2006 PM<INF>2.5</INF> SIP budgets being established. Further 
information regarding the implementation of these requirements is 
illustrated later in this section.
    Scenario 4: 2006 PM2.5 areas where the boundary partially overlaps 
a portion of the 1997 PM2.5 boundary. In this case, the 1997 and 2006 
PM<INF>2.5</INF> nonattainment boundaries partially overlap. As in the 
case with Scenario 3 areas, the 1997 PM<INF>2.5</INF> budgets would not 
cover the entire 2006 PM<INF>2.5</INF> nonattainment area. However, 
unlike Scenario 3 areas, the 2006 area does not contain the entire 1997 
PM<INF>2.5</INF> nonattainment or maintenance area. Therefore, 1997 
PM<INF>2.5</INF> budgets cannot be the sole test of conformity for the 
2006 PM<INF>2.5</INF> NAAQS, since a conformity determination must 
include a regional emissions analysis that includes the entire 2006 
PM<INF>2.5</INF> nonattainment area.
    EPA proposes that 2006 PM<INF>2.5</INF> areas covered under this 
scenario would use the 1997 PM<INF>2.5</INF> budget(s) to meet the 
budget test for the portion of the 1997 PM<INF>2.5</INF> area and 
budgets that overlap with the 2006 PM<INF>2.5</INF> area boundary, and 
one of the interim emissions tests for either the remaining portion of 
the 2006 PM<INF>2.5</INF> nonattainment area, the entire 2006 
PM<INF>2.5</INF> area, or the entire portion of the 2006 
PM<INF>2.5</INF> area within an individual state, if 1997 
PM<INF>2.5</INF> budgets are established in each state in a multi-state 
area. Under this proposal, the budget test would be completed according 
to the requirements in 40 CFR 93.118, and the interim emissions test 
requirements of 40 CFR 93.119.
    Similar to Scenario 3 areas, once an area selects a particular 
interim emissions test and the geographic area it will address, EPA 
proposes that the same test must be used consistently for all analysis 
years. Further information regarding the implementation of these 
requirements is found in the discussion above for Scenario 3, and 
illustrated later in this section.
2. Rationale
    General. EPA believes that using the existing 1997 PM<INF>2.5</INF> 
budgets as a proxy for the 2006 PM<INF>2.5</INF> NAAQS is required by 
the Clean Air Act. In Environmental Defense v. EPA, 467 F.3d 1329 (DC 
Cir. 2006), the Court of Appeals for the District of Columbia Circuit 
held that where a motor vehicle emissions budget developed for the 
revoked 1-hour ozone NAAQS existed in an approved SIP, that budget must 
be used to demonstrate conformity to the 8-hour ozone NAAQS until the 
SIP is revised to include budgets for the new NAAQS. EPA reflected the 
court's decision for ozone conformity tests in its January 24, 2008 
final rule (73 FR 4434).
    While the Environmental Defense case concerned ozone, EPA believes 
the court's holding is relevant for other pollutants for which 
conformity must be demonstrated. Consequently, EPA believes that 2006 
PM<INF>2.5</INF> areas that have 1997 PM<INF>2.5</INF> budgets must use 
them for 2006 PM<INF>2.5</INF> conformity before 2006 PM<INF>2.5</INF> 
SIP budgets are established.
    The use of the 1997 PM<INF>2.5</INF> budgets as a proxy for the 
2006 PM<INF>2.5</INF> NAAQS also would ensure that Clean Air Act 
requirements are met. Section 176(c) of the Clean Air Act requires that 
transportation activities may not cause new violations, increase the 
frequency or severity of existing violations, or delay timely 
attainment. In these areas, the budgets for the 1997 annual 
PM<INF>2.5</INF> NAAQS have been the measure of PM<INF>2.5</INF> 
conformity thus far, and have been consistent with these areas' 
PM<INF>2.5</INF> air quality progress to date. Therefore, using budgets 
that address the 1997 annual PM<INF>2.5</INF> NAAQS where no other 
PM<INF>2.5</INF> budgets are available ensures that the requirements of 
Clean Air Act 176(c) are met. Once 2006 PM<INF>2.5</INF> budgets are 
found adequate or approved, the budget test for that NAAQS provides the 
best means to determine whether transportation plans, TIPs, or projects 
meet Clean Air Act requirements.
    EPA also believes the budget test is a better environmental measure 
than the interim emissions tests when SIP budgets for a pollutant or 
precursor are available. As EPA reiterated in its July 1, 2004 final 
rule (69 FR 40026), when motor vehicle emissions budgets have been 
established by SIPs, they provide a more relevant basis for conformity 
determinations than the interim emissions tests. EPA believes this is 
true even though in most cases the budgets established for the 1997 
PM<INF>2.5</INF> NAAQS would address an annual rather than a 24-hour 
NAAQS. A 1997 PM<INF>2.5</INF> budget represents the state's best 
estimate of the level of permissible PM<INF>2.5</INF> emissions from 
the on-road transportation sector for a particular area. Such a budget 
is created based on local information for that particular area--its 
population, its estimated VMT and other travel data, its transit 
availability, its particular vehicle fleet, its local controls, and so 
forth. Hence EPA believes using budgets, designed for specific areas 
and based on information from those specific areas, is preferable to 
using either of the more generic interim emissions tests. The baseline 
year and the build/no-build tests are sufficient for demonstrating 
conformity when an area does not have a budget for a portion of a 
nonattainment area. However, these interim emissions tests usually do 
not ensure that transportation emissions promote progress for the NAAQS 
to the same extent that the use of motor vehicle emissions budgets do.
    In addition, using the 1997 PM<INF>2.5</INF> budgets for 2006 
PM<INF>2.5</INF> conformity purposes may also streamline the conformity 
process for areas designated nonattainment for both the 1997 and 2006 
PM<INF>2.5</INF> NAAQS. These areas would already be using 1997 
PM<INF>2.5</INF> budgets for conformity of that NAAQS. In areas where 
the 1997 and 2006 PM<INF>2.5</INF> nonattainment boundaries are the 
same (Scenario 1), today's proposal would result in having to meet only 
one type of test--the budget test--to demonstrate conformity for both 
the 1997 and 2006 NAAQS.
    For multi-state 2006 PM<INF>2.5</INF> nonattainment areas, today's 
proposal would also preserve states' ability to do conformity 
independently from one another, if a state has already established 
budgets for its own state (and/or MPO(s)) for the 1997 PM<INF>2.5</INF> 
NAAQS. Further explanation and examples are given below in Section 
VI.C.
    Scenario 1 and 2 areas. Today's proposal for conformity in 2006 
PM<INF>2.5</INF> areas before budgets that address that NAAQS are 
available is largely consistent with the process that EPA finalized for 
8-hour ozone areas designated under the 1997 ozone NAAQS where 1-hour 
ozone budgets exist (69 FR 40021-40028). Our proposals for Scenario 1 
and 2 areas are identical to the final rule for these 8-hour ozone 
areas. Scenario 2 2006 PM<INF>2.5</INF> areas would also have the 
choice of adjusting the existing 1997 PM<INF>2.5</INF> budgets for the 
new geographical area. As we indicated in the November 5, 2003 proposed 
rule for the 8-hour ozone areas (68 FR 62702), using the relevant 
portion of existing budgets for purposes of conducting conformity

[[Page 23035]]

determinations for a different NAAQS of the same pollutant is 
appropriate since the budgets for the 1997 PM<INF>2.5</INF> NAAQS would 
only be used as a proxy for the 2006 PM<INF>2.5</INF> NAAQS. These 1997 
PM<INF>2.5</INF> budgets still have to be met in the 1997 
PM<INF>2.5</INF> areas.
    Scenario 3 and 4 areas. Some Scenario 3 areas and all Scenario 4 
areas would also have to meet one of the interim emissions tests, for 
either the portion of the 2006 PM<INF>2.5</INF> area not covered by the 
1997 PM<INF>2.5</INF> SIP budgets, the entire PM<INF>2.5</INF> area, or 
the entire portion of the 2006 PM<INF>2.5</INF> area within an 
individual state. As explained in the November 2003 proposed rule for 
8-hour ozone areas (68 FR 62702), in these cases budgets cannot be the 
sole test of conformity because a conformity determination must include 
a regional emissions analysis that covers the entire nonattainment 
area.
    However, some Scenario 3 areas may be able to demonstrate 
conformity without an interim emissions test. For Scenario 3 
PM<INF>2.5</INF> areas, EPA is proposing an option that similar 8-hour 
ozone areas also have: the entire larger, newly designated area could 
meet budgets established for the smaller, existing area. In the July 1, 
2004 final rule, EPA clarified that 8-hour ozone areas have this 
ability. In that final rule, EPA noted that while this option was not 
explicitly addressed by the regulatory text, it would be consistent 
with the requirements and is available to interested 8-hour ozone areas 
(69 FR 40027). Given the benefit of that history, EPA is proposing to 
adopt regulatory text for this option for Scenario 3 2006 
PM<INF>2.5</INF> areas.
    Finally, EPA believes that statutory requirements are met under the 
proposal to use either interim emissions test when no adequate or 
approved PM<INF>2.5</INF> SIP budgets are available. See further 
rationale regarding the flexibility offered by today's proposal in 
Section V.

C. General Implementation of Regional Tests

    This proposal would apply the existing conformity rule's general 
requirements for PM<INF>2.5</INF> regional emissions analyses to all 
2006 PM<INF>2.5</INF> areas. As described in Section V.C., EPA is 
including this discussion of the existing regulation's requirements for 
clarity, to help readers understand how the existing regulation would 
apply to areas designated nonattainment for the 2006 PM<INF>2.5</INF> 
NAAQS. However, EPA is not soliciting comment on existing requirements 
that we are not proposing to change.
    The following examples are intended to illustrate how today's 
proposal would be implemented in practice for 2006 PM<INF>2.5</INF> 
areas with adequate or approved 1997 PM<INF>2.5</INF> SIP budgets.
1. General Conformity Test Requirements for Most Areas
    Regional emissions analyses under this proposal would be 
implemented through existing conformity requirements such as 40 CFR 
93.118, 93.119, and 93.122. For example, the existing conformity rule 
requires that only certain years within the transportation plan (or 
alternate timeframe) be examined.
    Although four scenarios are described in Section VI.B. for the time 
period before 2006 PM<INF>2.5</INF> SIP budgets are available, most 
areas with 1997 PM<INF>2.5</INF> SIP budgets will be covered by 
Scenario 1 (i.e., the 1997 and 2006 PM<INF>2.5</INF> NAAQS boundaries 
are the same). Under Scenario 1, the consultation process would be used 
to determine which analysis years should be selected for regional 
emissions analyses for the budget test. The existing conformity rule at 
40 CFR 93.118(d) requires the following analysis years for this test:
    <bullet> The attainment year for the 2006 PM<INF>2.5</INF> NAAQS 
(if it is within the timeframe of the transportation plan and 
conformity determination);
    <bullet> The last year of the timeframe of the conformity 
determination (40 CFR 93.106(d)); and
    <bullet> Intermediate years as necessary so that analysis years are 
no more than 10 years apart.

Areas covered by this proposal would also be determining conformity for 
the 1997 PM<INF>2.5</INF> NAAQS, using adequate or approved budgets 
established for that NAAQS.
    See the relevant regulatory sections of the conformity rule and the 
July 1, 2004 final rule preamble for further background on how tests 
have been implemented for other pollutants and standards (69 FR 40020).
2. Cases Involving Multi-Jurisdictional Areas
    As described earlier, EPA issued a guidance document in 2004 for 
implementing conformity requirements in multi-jurisdictional areas. 
There are two parts of this existing guidance that are relevant for 
implementing conformity for these areas. Part 3 of the existing 
guidance describes how conformity would be implemented in all 2006 
PM<INF>2.5</INF> areas once adequate or approved SIP budgets for the 
2006 PM<INF>2.5</INF> NAAQS are established. Part 4 of this guidance is 
relevant for meeting conformity requirements when only 1997 
PM<INF>2.5</INF> budgets are available.\13\
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    \13\ This section of the guidance covers how 8-hour ozone areas 
that have 1-hour ozone budgets would proceed with developing their 
regional emissions analyses and making conformity determinations, 
which is analogous to any 2006 PM<INF>2.5</INF> areas that have 1997 
budgets in the interim.
---------------------------------------------------------------------------

    This guidance is also applicable for conformity purposes in multi-
state and multi-MPO areas. For example, in multi-state 2006 
PM<INF>2.5</INF> nonattainment areas where each state has its own 1997 
PM<INF>2.5</INF> SIP budgets, the states could do conformity for the 
2006 NAAQS (as well as the 1997 PM<INF>2.5</INF> NAAQS) independently 
of each other. In addition, MPOs in areas that have subarea budgets for 
the 1997 PM<INF>2.5</INF> NAAQS could use these subarea budgets for 
conformity to the 2006 PM<INF>2.5</INF> NAAQS.
    For further information, please refer to Section V.C. and EPA's 
2004 multi-jurisdictional conformity guidance.

VII. Other Conformity Requirements for 2006 PM<INF>2.5</INF> Areas

    The existing regulations already provide the remaining requirements 
that will be necessary for conformity under the 2006 PM<INF>2.5</INF> 
NAAQS. EPA believes that any existing conformity requirements that are 
listed for ``PM<INF>2.5</INF>'' areas that are not being revised in 
today's proposal would also apply to 2006 PM<INF>2.5</INF> 
nonattainment or maintenance areas. These provisions have already been 
promulgated, based on past rulemakings and rationale, and EPA is not 
proposing any changes to these provisions. Therefore, EPA is not 
requesting public comment on these provisions in today's proposal.
    For example, a hot-spot analysis is required for certain projects 
in any PM<INF>2.5</INF> nonattainment and maintenance areas before such 
projects can be found to conform. These requirements are found in 
Sec. Sec.  93.116(a) and Sec.  93.123(b) of the current conformity 
rule, although please note that EPA, for other reasons, is proposing 
today to clarify amendments to section 93.116(a) of the conformity 
rule. See Section IX. of this preamble for details. Any hot-spot 
analysis requirements that were promulgated for ``PM<INF>2.5</INF>'' 
areas in the conformity rule do not need to be amended because they 
would already apply to 2006 PM<INF>2.5</INF> areas for this NAAQS.
    A hot-spot analysis in an area designated for both the 1997 and 
2006 PM<INF>2.5</INF> NAAQS would have to demonstrate that the project 
meets the conformity rule's hot-spot requirements for all of the 
PM<INF>2.5</INF> standards for which the area is designated 
nonattainment.

[[Page 23036]]

For example, if an area is designated nonattainment for the 1997 annual 
standard, and the 2006 24-hour standard, the analysis would have to 
consider both standards. Similarly, in the case where an area is 
designated nonattainment for both the 1997 annual and 24-hour 
standards, as well as the 2006 24-hour standard, the analysis would 
have to consider all of these standards. (See Section IX. for more 
information regarding the requirements of hot-spot analyses.)
    Please refer to the March 10, 2006 final rule for additional 
information regarding hot-spot analyses (47 FR 12468) and EPA and 
FHWA's current guidance for implementing this requirement 
(Transportation Conformity Guidance for Qualitative Hot-spot Analyses 
in PM<INF>2.5</INF> and PM<INF>10</INF> Nonattainment and Maintenance 
Areas, March 2006, EPA420-B-06-902).
    Section 93.117 of the conformity rule, which requires project-level 
conformity determinations to comply with any PM<INF>2.5</INF> control 
measures in an approved SIP, would also apply for conformity under the 
2006 PM<INF>2.5</INF> NAAQS. Again, EPA promulgated this requirement in 
general for nonattainment and maintenance areas under PM<INF>2.5</INF> 
air quality NAAQS. Therefore, EPA is not reopening this provision for 
comment in today's proposal, since it is unnecessary to do so in order 
to implement conformity requirements under the 2006 PM<INF>2.5</INF> 
NAAQS. See EPA's July 2004 final rule for further information on this 
requirement (69 FR 40036-40037).
    EPA will work with PM<INF>2.5</INF> nonattainment areas as needed 
to ensure that state and local agencies can meet existing and new 
conformity requirements for the 2006 PM<INF>2.5</INF> NAAQS in a timely 
and efficient manner. EPA requests comment on whether additional 
information or training will be necessary to ensure proper conformity 
implementation under the existing rule and today's proposal for the 
2006 PM<INF>2.5</INF> NAAQS. If your agency submits comments, please be 
as specific as possible regarding what types of situations and issues 
may need to be addressed in future implementation of PM<INF>2.5</INF> 
conformity requirements.

VIII. Transportation Conformity in PM<INF>10</INF> Nonattainment and 
Maintenance Areas and the Revocation of the Annual PM<INF>10</INF> 
NAAQS

A. Background

    On October 17, 2006, EPA issued a final rule establishing changes 
to the PM<INF>2.5</INF> and PM<INF>10</INF> NAAQS (71 FR 61144). The 
October 2006 final rule retained the 24-hour PM<INF>10</INF> NAAQS of 
150 [mu]g/m\3\, and revoked the annual PM<INF>10</INF> NAAQS of 50 
[mu]g/m\3\. EPA made a commitment in this October 2006 final rule to 
provide information regarding how transportation conformity will be 
implemented under the revised PM<INF>10</INF> NAAQS (71 FR 61215). To 
satisfy this commitment, EPA described which conformity tests would 
apply in PM<INF>10</INF> nonattainment and maintenance areas 
(``PM<INF>10</INF> areas'') in a guidance document.\14\ Today's 
proposal to update the conformity rule also responds to this 
commitment.
---------------------------------------------------------------------------

    \14\ Transportation Conformity in PM<INF>10</INF> Nonattainment 
and Maintenance Areas and the Revocation of the Annual 
PM<INF>10</INF> Standard, September 25, 2008, found on EPA's Web 
site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
---------------------------------------------------------------------------

    Clean Air Act section 176(c)(5) requires conformity only in areas 
that are designated nonattainment or maintenance for a given pollutant 
and NAAQS. Therefore, transportation conformity has continued to apply 
to all PM<INF>10</INF> nonattainment and maintenance areas because 
transportation conformity applies based on an area's status as a 
nonattainment or maintenance area, and PM<INF>10</INF> designations 
were not affected by the October 2006 final rule. As stated in the 
October 2006 final rule, ``both transportation and general conformity 
will continue to apply to all PM<INF>10</INF> nonattainment and 
maintenance areas since no designations are changing'' (71 FR 61215).
    As of the effective date of the October 2006 rule, conformity 
determinations in PM<INF>10</INF> areas have been required only for the 
24-hour PM<INF>10</INF> NAAQS. The October 2006 final rule stated, 
``However, because EPA is revoking the annual PM<INF>10</INF> NAAQS in 
this final rule, after the effective date of this rule conformity 
determinations in PM<INF>10</INF> areas will only be required for the 
24-hour PM<INF>10</INF> NAAQS; conformity to the annual PM<INF>10</INF> 
NAAQS will no longer be required'' (71 FR 61215). Please refer to the 
October 17, 2006 final rule for additional information (71 FR 61144).

B. Proposed Definitions for PM10 NAAQS

    EPA proposes to add new definitions to 40 CFR 93.101 of the 
conformity rule to distinguish between the 24-hour PM<INF>10</INF> 
NAAQS and the annual PM<INF>10</INF> NAAQS. EPA is proposing these two 
definitions to simplify the changes necessary for other conformity rule 
provisions, as described further below. The addition of these 
definitions parallels the existing definitions in 40 CFR 93.101 for the 
1-hour ozone NAAQS and 8-hour ozone NAAQS.

C. Proposal for Conformity Tests in PM10 Areas With Budgets

    EPA proposes to update one section of the regulation, consistent 
with the October 2006 final rule and the September 25, 2008 guidance 
entitled, ``Transportation Conformity in PM<INF>10</INF> Nonattainment 
and Maintenance Areas and the Revocation of the Annual PM<INF>10</INF> 
NAAQS.'' This proposal would be consistent with how PM<INF>10</INF> 
transportation conformity requirements have been applied since the 
revocation of the annual PM<INF>10</INF> NAAQS was effective.
    Specifically, EPA is proposing to update 40 CFR 93.109(g) so that:
    <bullet> PM<INF>10</INF> areas that have adequate or approved SIP 
budgets for both the 24-hour and annual PM<INF>10</INF> NAAQS would be 
required to use only the budgets established for the 24-hour 
PM<INF>10</INF> NAAQS. Conformity to the annual PM<INF>10</INF> budgets 
in such a case would no longer be required.\15\
---------------------------------------------------------------------------

    \15\ Note that it would not be necessary to remove budgets 
established for the annual PM<INF>10</INF> NAAQS from a SIP for 
conformity purposes; they do not apply if an area has budgets for 
the 24-hour PM<INF>10</INF> NAAQS. However, states can choose to 
revise such SIPs to remove any annual PM<INF>10</INF> budgets, since 
this standard has been revoked and remaining 24-hour PM<INF>10</INF> 
budgets would ensure that anti-backsliding SIP requirements are met.
---------------------------------------------------------------------------

    <bullet> PM<INF>10</INF> areas that have adequate or approved SIP 
budgets for only the annual PM<INF>10</INF> NAAQS would be required to 
use them for PM<INF>10</INF> conformity determinations until 
PM<INF>10</INF> SIP budgets for the 24-hour PM<INF>10</INF> NAAQS are 
found adequate or approved. For areas that use annual PM<INF>10</INF> 
budgets, a regional emissions analysis would be done based on an 
analysis of annual, rather than 24-hour, emissions.
    EPA is not proposing to change any other existing conformity 
requirements for PM<INF>10</INF> nonattainment and maintenance areas. 
For example, the existing requirement for project-level conformity 
determinations in PM<INF>10</INF> areas would also continue to apply, 
including hot-spot analyses in some cases (see Sec. Sec.  93.116(a) and 
93.123(b)). Although project-level conformity requirements and any 
required hot-spot analysis would apply only with respect to the 24-hour 
PM<INF>10</INF> NAAQS, this requires no revisions to the current 
conformity rule.

D. Rationale

    Today's proposed rule changes for PM<INF>10</INF> conformity tests 
result from the revocation of the annual PM<INF>10</INF> NAAQS. Where 
annual PM<INF>10</INF> budgets are the only PM<INF>10</INF> budgets, 
EPA believes it is necessary to use such budgets to demonstrate 
conformity for the 24-hour

[[Page 23037]]

PM<INF>10</INF> NAAQS to meet Clean Air Act requirements. As discussed 
above in Section VI.B.2., a 2006 decision by the Court of Appeals for 
the DC Circuit clarified this point. In this decision, the court 
stated, ``A current SIP, even one tied to outdated NAAQS, remains in 
force until replaced by another but later-approved SIP. The Clean Air 
Act provides that the current SIPs are legally sufficient until they 
are replaced by new SIPs.'' (Environmental Defense v. EPA, 467 F.3d 
1329, 1335 (DC Cir. 2006)). Refer to Section VI.B.2. for further 
information about the decision. EPA believes that today's proposal is 
consistent with this decision.
    Consequently, EPA believes that annual PM<INF>10</INF> budgets must 
be used to demonstrate conformity for the 24-hour PM<INF>10</INF> NAAQS 
when adequate or approved 24-hour PM<INF>10</INF> budgets are not yet 
established. In areas with PM<INF>10</INF> budgets that address only 
the annual PM<INF>10</INF> NAAQS, these budgets have been the measure 
of PM<INF>10</INF> conformity thus far, and have been consistent with 
these areas' PM<INF>10</INF> air quality progress to date. Therefore, 
using annual PM<INF>10</INF> budgets where no other PM<INF>10</INF> SIP 
budgets are available ensures that air quality progress to date is 
maintained, air quality will not be worsened and attainment and any 
interim milestones for the 24-hour PM<INF>10</INF> NAAQS will not be 
delayed because of emissions increases. Once 24-hour PM<INF>10</INF> 
budgets are found adequate or approved, the budget test solely for the 
24-hour PM<INF>10</INF> NAAQS provides the best means to determine 
whether transportation plans, TIPs, or projects meet Clean Air Act 
conformity requirements.
    Most PM<INF>10</INF> areas already have adequate or approved 
budgets for only the 24-hour PM<INF>10</INF> NAAQS. However, there are 
a limited number of PM<INF>10</INF> areas that have SIP budgets only 
for the annual PM<INF>10</INF> NAAQS. EPA believes that the statute as 
interpreted by the court requires such areas to continue to use these 
adequate or approved annual PM<INF>10</INF> SIP budgets, rather than 
use one of the interim emissions tests in 40 CFR 93.119(d) which could 
be less environmentally protective tests than SIP budgets.
    While EPA addressed how the revocation affected PM<INF>10</INF> 
transportation conformity requirements in its September 2008 guidance, 
updating the regulation clarifies the requirements and simplifies 
implementation. This proposed rule also saves resources in some areas 
with adequate or approved SIP budgets for both the 24-hour and annual 
PM<INF>10</INF> NAAQS because these areas are no longer required to use 
budgets for the annual PM<INF>10</INF> NAAQS. As mentioned above, 
today's minor revision to the conformity rule is consistent with what 
is already required in the field for PM<INF>10</INF> nonattainment and 
maintenance areas.

IX. Response to the December 2007 Hot-Spot Court Decision

A. Background

    EPA promulgated a final rule on March 10, 2006 (71 FR 12468) that 
revised the previous PM<INF>10</INF> conformity hot-spot analysis 
requirements and applied these revised requirements to 
PM<INF>2.5</INF>.\16\ A hot-spot analysis is defined in 40 CFR 93.101 
as an estimation of likely future localized pollutant concentrations 
and a comparison of those concentrations to relevant NAAQS. A hot-spot 
analysis assesses the air quality impacts of an individual 
transportation project on a scale smaller than a regional emissions 
analysis for an entire nonattainment or maintenance area.
---------------------------------------------------------------------------

    \16\ The March 10, 2006 rule constituted final action on EPA's 
original proposal from November 5, 2003 (68 FR 62690, 62712) and a 
supplemental proposal from December 13, 2004 (69 FR 72140, 72144-45, 
and 72149-50).
---------------------------------------------------------------------------

    Section 93.116(a) of the current conformity rule requires that 
projects in PM<INF>2.5</INF>, PM<INF>10</INF>, and CO nonattainment and 
maintenance areas ``must not cause or contribute to any new localized 
CO, PM<INF>10</INF>, and/or PM<INF>2.5</INF> violations or increase the 
frequency or severity of any existing CO, PM<INF>10</INF>, and/or 
PM<INF>2.5</INF> violations* * *.'' This requirement is satisfied for 
applicable projects \17\ ``if it is demonstrated that during the time 
frame of the transportation plan 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.'' Sections 93.105(c)(1)(i) and 
93.123 contain the consultation and methodology requirements for 
conducting hot-spot analyses.
---------------------------------------------------------------------------

    \17\ Section 93.123(b) contains the types of projects for which 
a hot-spot analysis applies in PM<INF>2.5</INF> and PM<INF>10</INF> 
areas. For additional discussion, please refer to ``V. Projects of 
Air Quality Concern and General Requirements for PM<INF>2.5</INF> 
and PM<INF>10</INF> Hot-spot Analyses'' in the preamble of the March 
10, 2006 final rule at 71 FR 12490-12498.
---------------------------------------------------------------------------

    A hot-spot analysis, when required, is only one part of a project-
level conformity determination. In order to meet all Clean Air Act 
requirements, an individual project must also be included in a 
conforming transportation plan and TIP (and regional emissions analysis 
for the entire nonattainment or maintenance area) and meet any other 
applicable requirements.
    Environmental petitioners challenged the March 2006 final rule, and 
raised several issues related to it. First, petitioners alleged that 
the final rule did not ensure that transportation projects complied 
with Clean Air Act section 176(c)(1)(A) and (c)(1)(B)(iii). Second, 
petitioners alleged that EPA had previously approved its MOBILE6.2 on-
road mobile source emissions model for use in quantitative 
PM<INF>2.5</INF> and PM<INF>10</INF> hot-spot analyses, and withdrew 
such approval in the March 2006 final rule without providing adequate 
notice and opportunity for public comment.\18\
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    \18\ EPA and petitioners settled a third issue that was not 
raised to the court. The settlement was finalized on June 22, 2007 
(72 FR 34460), and described a stakeholder process that EPA will use 
to develop its future PM<INF>2.5</INF> and PM<INF>10</INF> 
quantitative hot-spot modeling guidance.
---------------------------------------------------------------------------

    On December 11, 2007, the DC Circuit Court of Appeals issued its 
decision, and upheld EPA's March 2006 final rule and remanded one issue 
for clarification. Environmental Defense v. EPA, 509 F.3d. 553 (DC Cir. 
2007). The court agreed with EPA's position that Clean Air Act section 
176(c)(1)(A) does not require that an individual transportation project 
reduce emissions, but only that such a project not worsen air quality 
compared to what would have otherwise occurred if the project was not 
implemented. The court held that, assuming section 176(c)(1)(A) applies 
in the local area surrounding an individual project, EPA's position 
that this provision is met if a transportation project conforms to the 
emissions estimates and control requirements of the SIP was a 
reasonable one. The court also rejected petitioners' arguments 
regarding MOBILE6.2 and found that EPA had in fact provided adequate 
notice and comment on its decision not to require quantitative PM hot-
spot analyses using MOBILE6.2 due to the model's technical limitations 
at the project-level (71 FR 12498-12502).
    However, the court remanded to EPA for further explanation of the 
Agency's interpretation of Clean Air Act section 176(c)(1)(B)(iii). The 
court instructed EPA on remand to interpret how this provision of the 
Act is met within the local area affected by an individual project, or 
explain why this statutory provision does not apply within such an 
area. Environmental Defense v. EPA, 509 F.3d. 553 (DC Cir. 2007). 
Today's proposal is intended to respond to this part of the court's 
decision.

B. Proposal

    EPA is proposing to make two minor changes to section 93.116(a) of 
the conformity rule to address the court's remand. First, EPA is 
explicitly stating in this provision that federally funded or approved 
highway and transit projects in PM<INF>2.5</INF> and PM<INF>10</INF>

[[Page 23038]]

nonattainment and maintenance areas must meet the requirements of Clean 
Air Act section 176(c)(1)(B)(iii) within the local area affected by the 
project. EPA is also proposing to make explicit in Sec.  93.116 the 
existing requirement that projects must be included in a regional 
emissions analysis under 40 CFR 93.118 or 93.119. Consistent with the 
Court's decision, EPA is not proposing additional requirements, such as 
requiring that an individual project reduce emissions in the local 
project area.
    EPA is not proposing any substantive changes to existing 
requirements for project-level conformity determinations. Under today's 
proposal, project-level conformity determinations, including any hot-
spot analyses, would continue to be performed in the same manner as 
current practice. Projects would continue to be required to be a part 
of a regional emissions analysis that supports a conforming 
transportation plan and TIP. Hot-spot analyses would need to 
demonstrate that during the time frame of the transportation plan no 
new local violations would be created and the severity or number of 
existing violations would not be increased as a result of a new 
project. By making these demonstrations, it can be assured that the 
project would not delay timely attainment or any required interim 
reductions or milestones, as described further below. In addition, 
project sponsors would continue to document the hot-spot analysis as 
part of the project-level conformity determination, and the public 
would continue to be able to comment on any aspects of the conformity 
determination through existing public involvement requirements.
    EPA notes that today's proposal would also address new projects in 
CO nonattainment and maintenance areas, since the hot-spot analysis 
requirements in section 93.116(a) also apply to such areas. Although 
the March 2006 final rule and the December 2007 court case did not 
involve CO hot-spot requirements, EPA believes it is appropriate to 
clarify that Clean Air Act section 176(c)(1)(B)(iii) must also be met 
for projects in CO nonattainment and maintenance areas.
    Solely for purposes of ensuring that state and local implementers 
and the public understand today's proposed change within the context of 
existing conformity requirements, EPA is also including section 
93.116(a) regulatory text in its entirety in today's proposal. However, 
EPA is not proposing to amend the existing regulatory text in 40 CFR 
93.116(a) that is not addressed by the issues discussed in today's 
proposal. As described above, EPA is proposing only to add regulatory 
text to section 93.116(a) to clarify that federally funded or approved 
highway and transit projects in PM<INF>2.5</INF>, PM<INF>10</INF>, and 
CO nonattainment and maintenance areas must meet the requirements of 
Clean Air Act section 176(c)(1)(B)(iii) within the local area affected 
by the project. EPA is not reopening for public comment any other 
aspects of the current section 93.116(a), or any other provisions in 
the conformity rule regarding project-level conformity determinations 
(e.g., what projects require hot-spot analyses or methodology 
requirements, as described in 40 CFR 93.123).

C. Rationale

1. General
    Project-level conformity determinations must demonstrate that all 
of the requirements in Clean Air Act section 176(c)(1)(B) are met. 
Section 176(c)(1)(B) defines conformity to a SIP to mean ``that such 
activities will not (i) cause or contribute to any new violation of any 
NAAQS in any area; (ii) increase the frequency or severity of any 
existing violation of any NAAQS in any area; or (iii) delay timely 
attainment of any NAAQS or any required interim emission reductions or 
other milestones in any area.''
    In Environmental Defense, the court held that EPA did not explain 
how it interpreted the language of Clean Air Act section 
176(c)(1)(B)(iii) in conjunction with related language in sections 
176(c)(1)(B)(i) and (ii). Although section 93.116(a) of the existing 
conformity rule includes the statutory text for section 176(c)(1)(B)(i) 
and (ii), it does not explicitly include the statutory language in 
section 176(c)(1)(B)(iii). The court stated that, if ``any area'' in 
the first two provisions refers to a ``local area,'' then EPA must 
either interpret the term ``any area'' in section 176(c)(1)(B)(iii) to 
also mean ``local area,'' or explain why a different interpretation is 
reasonable. 509 F.3d at 560-61. EPA agrees with the court that it is 
reasonable to conclude that all of section 176(c)(1)(B) requirements 
must be met in the local project area.
    EPA believes that its existing conformity hot-spot regulations, as 
well as other conformity requirements, already require that individual 
projects comply with section 176(c)(1)(B)(iii) in the local project 
area. EPA has always intended the term ``any area'' in all three 
statutory provisions of section 176(c)(1)(B) to include the local area 
affected by the emissions produced by a new project. For example, as 
EPA stated in the March 2006 final hot-spot rule (71 FR 12483), ``a 
regional emissions analysis for an area's entire planned transportation 
system is not sufficient to ensure that individual projects meet the 
requirements of section 176(c)(1)(B) where projects could have a 
localized air quality impact.''
    To implement section 176(c)(1)(B) requirements in PM<INF>2.5</INF>, 
PM<INF>10</INF>, and CO nonattainment and maintenance areas (40 CFR 
93.109(b)), EPA's current conformity rule requires project-level 
conformity determinations to address the regional and local emissions 
impacts from new projects. Section 93.115(a) requires that an 
individual project must be consistent with the emissions projections 
and control measures in the SIP, either by inclusion in a conforming 
transportation plan and TIP or through a separate demonstration (and 
regional emissions analysis developed under 40 CFR 93.118 or 93.119). 
In addition, section 93.116(a) requires that some project-level 
conformity determinations include a hot-spot analysis that demonstrates 
emissions from a single project do not negatively impact air quality 
within the area substantially affected by the project.\19\ Through 
meeting all of these requirements, it can be assured that a project 
does not cause or contribute to a new or worsened air quality 
violation, delay timely attainment, or delay required interim emission 
reductions or other milestones.
---------------------------------------------------------------------------

    \19\ Hot-spot analyses must be based on the latest data and 
models under 40 CFR 93.109(b), 93.111, and 93.123, and therefore any 
growth in other emissions sources or the impact of new or existing 
emissions controls (including those in any required SIP) would 
always be considered in a hot-spot analysis prior to approving a 
project.
---------------------------------------------------------------------------

    However, in light of the court's request for further explanation, 
EPA is clarifying in this proposal that it interprets the term ``any 
area'' in Clean Air Act section 176(c)(1)(B) to mean any portion of a 
nonattainment or maintenance area, including the local area affected by 
a transportation project. The proposed clarifications and the existing 
conformity requirements ensure that transportation planners address the 
requirement that there be no delay in timely attainment or required 
interim reductions or other milestones in the local project area.
    EPA notes that Clean Air Act section 176(c)(1)(B)(iii) does not 
require an individual project to reduce emissions in the local project 
area for it to be consistent with the requirement not to delay timely 
attainment or required interim reductions or milestones, as EPA 
explained in the preamble to its March 2006 hot-spot regulations (71 FR 
12482), with which the Court agreed.

[[Page 23039]]

See also Environmental Defense v. EPA, 467 F.3d 1329, 1337 (DC Cir. 
2006) (``EPA argues, and we agree, that conformity to a SIP can be 
demonstrated by using the build/no-build test, even if individual 
transportation plans do not actively reduce emissions''). Clean Air Act 
section 176(c)(1)(B)(iii) does not require a new project to mitigate 
new or worsened air quality violations that it does not cause. This 
statutory provision also does not require a new project to contribute 
new interim reductions beyond those that are already required in the 
SIP.
    The only case where Congress specifically required individual 
projects to provide emission reductions in hot-spot analyses is for 
projects in certain CO nonattainment areas. Clean Air Act section 
176(c)(3)(B)(ii) requires individual projects in CO nonattainment areas 
to ``eliminate or reduce the severity and number of violations of the 
carbon monoxide NAAQS in areas substantially affected by the project.'' 
\20\ Since Congress did not establish such a requirement for any 
project in PM<INF>2.5</INF> and PM<INF>10</INF> areas under section 
176(c)(3)(B)(ii), and for the reasons described in today's proposal, 
EPA does not interpret such a requirement to apply to projects in 
PM<INF>2.5</INF> or PM<INF>10</INF> areas under section 
176(c)(1)(B)(iii).
---------------------------------------------------------------------------

    \20\ This requirement is included in section 93.116(b) of the 
existing conformity rule.
---------------------------------------------------------------------------

2. Requirement for No Delay in Timely Attainment of the NAAQS
    Today's proposal would clarify that a project would meet Clean Air 
Act section 176(c)(1)(B)(iii) requirements not to delay timely 
attainment as long as no new or worsened violations are predicted to 
occur, which is already required under the existing hot-spot 
requirements. While overall emissions can increase in a local area 
above those expected without a new project's implementation, a project 
will not delay timely attainment if air quality concentrations meet 
federal air quality NAAQS or air quality is improved from what would 
have occurred without the new project's implementation.
    For example, suppose a hot-spot analysis is performed for a new 
highway project that is predicted to significantly increase the number 
of diesel trucks from what is expected in the local area without the 
project. A year is chosen in this example to analyze when peak 
emissions from the project are expected and future air quality is most 
likely to be impacted due to the cumulative impacts of the project and 
background emissions in the project area. Under both the current 
conformity rule and the proposed clarification, the project would meet 
section 176(c)(1)(B)(iii) requirements not to delay timely attainment 
in the local project area as long as the project's new emissions do not 
create new violations or worsen existing violations in the local 
project area. Such a demonstration would examine the total impact of 
the project's new emissions in the context of the future transportation 
system, any expected growth in other emissions sources, and any 
existing or new control measures that are expected to impact the local 
project area. If the hot-spot analysis demonstrated that the proposed 
project would improve or not impact air quality, then timely attainment 
would also not be delayed from what would have occurred without the 
project. In contrast, if such a project increased emissions enough to 
cause a new violation or worsen an existing violation in the local 
project area, then the project would delay timely attainment, since 
worsening air quality above the NAAQS would impede the ability to 
attain in the local project area. In such a case, the project could not 
be found to conform until the new or worsened future violation was 
mitigated.
3. Requirement for No Delay in Timely Attainment of Any Required 
Interim Reductions or Milestones
    Today's proposal also ensures that a project would meet Clean Air 
Act section 176(c)(1)(B)(iii) requirements for no delay in the timely 
attainment of any required interim reductions or other milestones. EPA 
interprets ``any required interim emission reductions or other 
milestones'' to refer to Clean Air Act requirements associated with 
reductions and milestones addressed by reasonable further progress 
SIPs, rather than other reductions required for other purposes. 
However, EPA believes there is added value in referencing in section 
93.116(a) the existing conformity requirement that a project be 
consistent with the budgets and control measures in any applicable SIP. 
Therefore, EPA is proposing to clarify that this requirement is 
satisfied in the local project area if a project is consistent with the 
motor vehicle emissions budget(s) and control measures in the 
applicable SIP or interim emission test(s) (in the absence of a SIP 
budget). Although such a demonstration is already required under the 
current rule, EPA's proposed reference to the requirements in 40 CFR 
93.118 and 93.119 would clarify that a project's emissions--when 
combined with all other emissions from all other existing and other 
proposed transportation projects--are consistent with any applicable 
required interim reductions and milestones.
    Today's proposal also supports the implementation of control 
measures that are relied upon in reasonable further progress 
demonstrations and could impact air quality in the local project area. 
Under the existing conformity rule, control measures that are relied 
upon for reasonable further progress SIPs must have sufficient state 
and local commitments to be included in a regional emissions analysis 
or a hot-spot analysis. If the implementation of a control measure is 
not assured, then such reductions cannot be included in the regional 
emissions analysis for the entire nonattainment or maintenance area (40 
CFR 93.122(a)) or within the local project area considered in a hot-
spot analysis (40 CFR 93.123(c)(3) and (4)). EPA believes that these 
existing requirements also ensure that ``any required interim emissions 
reductions or other milestones'' are not delayed within a local project 
area as a result of a single project's emissions.
    For example, a project may not meet Clean Air Act section 
176(c)(1)(B)(iii) requirements if SIP control measures were not being 
implemented as expected and as a result, a project's emissions (when 
combined with expected future emissions without the SIP control 
measures) caused a new violation or worsened an existing violation in 
the local project area. In such a case, additional control measures as 
part of the conformity determination may be required in order to offset 
any emissions increases from a project.
    Today's proposal would also result in all Clean Air Act section 
176(c)(1)(B)(iii) requirements being met when air quality improves as a 
result of the project, e.g., an existing air quality violation that 
would have occurred without the project is estimated to be reduced or 
eliminated if the new project were implemented. EPA believes that all 
of section 176(c)(1)(B) requirements would be met in the local project 
area in such a case since the Act requires that individual projects do 
not worsen air quality or affect an area's ability to attain or achieve 
interim requirements. Certainly, if air quality improves in the local 
project area with the implementation of a new project, EPA believes 
that timely attainment and required reasonable further progress interim 
requirements are not delayed. In fact, the opposite would be true in 
such a case, since future air quality would be improved and attainment 
possibly expedited from what would have occurred without the project's 
implementation.

[[Page 23040]]

4. Summary
    In summary, today's proposed clarifications and the existing 
conformity rule would ensure that transportation projects meet Clean 
Air Act section 176(c)(1)(B)(iii) requirements. As long as a 
transportation project does not worsen air quality concentrations 
within the local project area, and is consistent with the motor vehicle 
emissions budget(s) and control measures in the applicable SIP or 
interim emissions test(s) (in the absence of budgets), it would not 
delay timely attainment, or interfere with required interim reductions 
and other milestones, even if it does not reduce emissions levels 
within a project's location. For these reasons, EPA is not proposing to 
add any new requirements to the existing conformity rule. Instead, EPA 
is proposing simply to clarify the rule in Sec.  93.116(a) to address 
the Environmental Defense court's remand of the March 2006 hot-spot 
regulation for further explanation of the applicability of Clean Air 
Act section 176(c)(1)(B)(iii).

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), this 
action is a ``significant regulatory action'' because it raises novel 
legal and policy issues. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866 and any 
changes made in response to OMB recommendations have been documented in 
the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The information collection requirements of EPA's existing 
transportation conformity regulations and the proposed revisions in 
today's action are already covered by EPA information collection 
request (ICR) entitled, ``Transportation Conformity Determinations for 
Federally Funded and Approved Transportation Plans, Programs and 
Projects.'' The Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations at 40 CFR part 93 under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0561. The OMB control numbers for EPA's regulations 
in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of rules subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the Agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
organizations and small government jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
regulation directly affects federal agencies and metropolitan planning 
organizations that, by definition, are designated under federal 
transportation laws only for metropolitan areas with a population of at 
least 50,000. These organizations do not constitute small entities 
within the meaning of the Regulatory Flexibility Act. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
The purpose of this proposal is to amend the conformity rule to clarify 
how certain highway and transit projects meet statutory conformity 
requirements for particulate matter (PM) in response to a December 2007 
court ruling, and to update the regulation to accommodate revisions to 
the PM<INF>10</INF> and PM<INF>2.5</INF> NAAQS. This proposal merely 
implements already established law that imposes conformity requirements 
and does not itself impose requirements that may result in expenditures 
of $100 million or more in any year. Thus, today's proposal is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule will not 
significantly or uniquely impact small governments because it directly 
affects federal agencies and metropolitan planning organizations that, 
by definition, are designated under federal transportation laws only 
for metropolitan areas with a population of at least 50,000.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on states, on the relationship 
between the national government and states, or on the distribution of 
power and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The Clean Air Act requires 
conformity to apply in certain nonattainment and maintenance areas as a 
matter of law, and this proposed action merely proposes to establish 
and revise procedures for transportation planning entities in subject 
areas to follow in meeting their existing statutory obligations. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communication between EPA and state and local 
governments, EPA specifically solicits comment on this proposed rule 
from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The Clean Air 
Act requires transportation conformity to apply in

[[Page 23041]]

any area that is designated nonattainment or maintenance by EPA. This 
proposal would amend the conformity rule to clarify how certain highway 
and transit projects meet statutory conformity requirements for 
particulate matter in response to a December 2007 court ruling, and to 
update the conformity rule to accommodate revisions to the 
PM<INF>10</INF> and PM<INF>2.5</INF> NAAQS. Because today's proposed 
amendments to the conformity rule do not significantly or uniquely 
affect the communities of Indian tribal governments, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997,) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
the Agency does not have reason to believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. It does not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency regarding energy. Further, this rule is not likely to 
have any adverse energy effects because it does not raise novel legal 
or policy issues adversely affecting the supply, distribution or use of 
energy arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Orders 12866 and 13211.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., material specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposal does not involve technical standards. Therefore, EPA 
is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This proposal would simply amend the conformity rule 
to clarify how certain highway and transit projects meet statutory 
requirements for particulate matter in response to a December 2007 
court ruling, and updates the conformity rule to accommodate revisions 
to the PM<INF>10</INF> and PM<INF>2.5</INF> NAAQS.

K. Determination Under Section 307(d)

    Pursuant to Clean Air Act Section 307(d)(1)(U), the Administrator 
determines that this section is subject to the provisions of section 
307(d). Section 307(d)(1)(U) provides that the provisions of section 
307(d) apply to ``such other actions as the Administrator may 
determine.''

List of Subjects in 40 CFR Part 93

    Administrative practice and procedure, Air pollution control, 
Carbon monoxide, Clean Air Act, Environmental protection, Highways and 
roads, Intergovernmental relations, Mass transportation, Nitrogen 
dioxide, Ozone, Particulate matter, Transportation, Volatile organic 
compounds.

    Dated: May 6, 2009.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 93 is proposed 
to be amended as follows:

PART 93--[AMENDED]

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

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

    2. Section 93.101 is amended by adding new definitions for ``24-
hour PM<INF>10</INF> NAAQS'', ``1997 PM<INF>2.5</INF> NAAQS'', ``2006 
PM<INF>2.5</INF> NAAQS'', and ``Annual PM<INF>10</INF> NAAQS'' to read 
as follows:


Sec.  93.101  Definitions.

* * * * *
    24-hour PM10 NAAQS means the 24-hour PM<INF>10</INF> national 
ambient air quality standard codified at 40 CFR 50.6.
* * * * *
    1997 PM2.5 NAAQS means the PM<INF>2.5</INF> national ambient air 
quality standards codified at 40 CFR 50.7.
* * * * *
    2006 PM2.5 NAAQS means the 24-hour PM<INF>2.5</INF> national 
ambient air quality standard codified at 40 CFR 50.13.
* * * * *
    Annual PM10 NAAQS means the annual PM<INF>10</INF> national ambient 
air quality standard that EPA revoked on December 18, 2006.
* * * * *


Sec.  93.105  [Amended]

    3. Section 93.105 is amended in paragraph (c)(1)(vi) by removing 
the citation ``Sec.  93.109(l)(2)(iii)'' and adding in its place 
``Sec.  93.109(n)(2)(iii)''.
    4. Section 93.109 is amended as follows:
    a. In paragraph (b):
    i. By removing the citation ``(c) through (i)'' and adding in its 
place the citation ``(c) through (k)'';
    ii. By removing the reference ``(j)'' and adding in its place 
``(l)'';

[[Page 23042]]

    iii. By removing the reference ``(k)'' and adding in its place 
``(m)'';
    iv. By removing the reference ``(l)'' and adding in its place 
``(n)'';
    b. By revising paragraph (g)(2) introductory text;
    c. By redesignating paragraph (g)(3) as (g)(4);
    d. By adding new paragraph (g)(3);
    e. By revising the heading of paragraph (i);
    f. By adding the words ``such 1997'' before the words 
``PM<INF>2.5</INF> nonattainment and maintenance areas'' in paragraphs 
(i)(1), (i)(2) introductory text, and (i)(3);
    g. By redesignating paragraphs (j), (k), and (l) as (l), (m), and 
(n), respectively;
    h. In newly designated paragraph (n)(2) introductory text by 
removing the citation ``(c) through (k)'' and adding in its place the 
citation ``(c) through (m)'';
    i. In newly designated paragraph (n)(2)(iii):
     i. By removing the citation ``(l)(2)(ii)'' and adding in its place 
the citation ``(n)(2)(ii)'';
     ii. By removing the citation ``(l)(2)(ii)(C)'' and adding in its 
place the citation ``(n)(2)(ii)(C)'';
    j. By adding new paragraphs (j) and (k).


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

* * * * *
    (g) * * *
    (2) In PM<INF>10</INF> nonattainment and maintenance areas where a 
budget is submitted for the 24-hour PM<INF>10</INF> NAAQS, the budget 
test must be satisfied as required by Sec.  93.118 for conformity 
determinations made on or after:
* * * * *
    (3) Prior to paragraph (g)(2) of this section applying, the budget 
test must be satisfied as required by Sec.  93.118 using the approved 
or adequate motor vehicle emissions budget established for the revoked 
annual PM<INF>10</INF> NAAQS, if such a budget exists.
* * * * *
    (i) 1997 PM2.5 nonattainment and maintenance areas. * * *
    (j) 2006 PM2.5 NAAQS nonattainment and maintenance areas without 
1997 PM2.5 NAAQS motor vehicle emissions budgets for any portion of the 
2006 PM2.5 NAAQS area. In addition to the criteria listed in Table 1 in 
paragraph (b) of this section that are required to be satisfied at all 
times, in such 2006 PM<INF>2.5</INF> nonattainment and maintenance 
areas conformity determinations must include a demonstration that the 
budget and/or interim emissions tests are satisfied as described in the 
following:
    (1) FHWA/FTA projects in such PM<INF>2.5</INF> nonattainment and 
maintenance areas must satisfy the appropriate hot-spot test required 
by Sec.  93.116(a).
    (2) In such PM<INF>2.5</INF> nonattainment and maintenance areas 
the budget test must be satisfied as required by Sec.  93.118 for 
conformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for the 2006 PM<INF>2.5</INF> NAAQS is 
adequate for transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (3) In such PM<INF>2.5</INF> nonattainment areas the interim 
emissions tests must be satisfied as required by Sec.  93.119 for 
conformity determinations made if there is no approved motor vehicle 
emissions budget from an applicable implementation plan for the 2006 
PM<INF>2.5</INF> NAAQS and no adequate motor vehicle emissions budget 
from a submitted control strategy implementation plan revision or 
maintenance plan for the 2006 PM<INF>2.5</INF> NAAQS.
    (k) 2006 PM2.5 NAAQS nonattainment and maintenance areas with motor 
vehicle emissions budgets for the 1997 PM2.5 NAAQS that cover all or a 
portion of the 2006 PM2.5 nonattainment area. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in such 2006 PM<INF>2.5</INF> 
nonattainment and maintenance areas conformity determinations must 
include a demonstration that the budget and/or interim emissions tests 
are satisfied as described in the following:
    (1) FHWA/FTA projects in such PM<INF>2.5</INF> nonattainment and 
maintenance areas must satisfy the appropriate hot-spot test required 
by Sec.  93.116(a).
    (2) In such PM<INF>2.5</INF> nonattainment and maintenance areas 
the budget test must be satisfied as required by Sec.  93.118 for 
conformity determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for the 2006 PM<INF>2.5</INF> NAAQS is 
adequate for transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (3) Prior to paragraph (k)(2) of this section applying, the 
following test(s) must be satisfied:
    (i) If the 2006 PM<INF>2.5</INF> nonattainment area covers the same 
geographic area as the 1997 PM<INF>2.5</INF> nonattainment or 
maintenance area(s), the budget test as required by Sec.  93.118 using 
the approved or adequate motor vehicle emissions budgets in the 1997 
PM<INF>2.5</INF> applicable implementation plan or implementation plan 
submission;
    (ii) If the 2006 PM<INF>2.5</INF> nonattainment area covers a 
smaller geographic area within the 1997 PM<INF>2.5</INF> nonattainment 
or maintenance area(s), the budget test as required by Sec.  93.118 for 
either:
    (A) The 2006 PM<INF>2.5</INF> nonattainment area using 
corresponding portion(s) of the approved or adequate motor vehicle 
emissions budgets in the 1997 PM<INF>2.5</INF> applicable 
implementation plan or implementation plan submission where such 
portion(s) can reasonably be identified through the interagency 
consultation process required by Sec.  93.105; or
    (B) The 1997 PM<INF>2.5</INF> nonattainment area using the approved 
or adequate motor vehicle emissions budgets in the 1997 
PM<INF>2.5</INF> applicable implementation plan or implementation plan 
submission. If additional emissions reductions are necessary to meet 
the budget test for the 2006 PM<INF>2.5</INF> NAAQS in such cases, 
these emissions reductions must come from within the 2006 
PM<INF>2.5</INF> nonattainment area;
    (iii) If the 2006 PM<INF>2.5</INF> nonattainment area covers a 
larger geographic area and encompasses the entire 1997 PM<INF>2.5</INF> 
nonattainment or maintenance area(s):
    (A) The budget test as required by Sec.  93.118 for the portion of 
the 2006 PM<INF>2.5</INF> nonattainment area covered by the approved or 
adequate motor vehicle emissions budgets in the 1997 PM<INF>2.5</INF> 
applicable implementation plan or implementation plan submission; and 
the interim emissions tests as required by Sec.  93.119 for either: The 
portion of the 2006 PM<INF>2.5</INF> nonattainment area not covered by 
the approved or adequate budgets in the 1997 PM<INF>2.5</INF> 
implementation plan, the entire 2006 PM<INF>2.5</INF> nonattainment 
area, or the entire portion of the 2006 PM<INF>2.5</INF> nonattainment 
area within an individual state, in the case where separate 1997 
PM<INF>2.5</INF> SIP budgets are established for each state of a multi-
state 1997 PM<INF>2.5</INF> nonattainment or maintenance area; or
    (B) The budget test as required by Sec.  93.118 for the entire 2006 
PM<INF>2.5</INF> nonattainment area using the approved or adequate 
motor vehicle emissions budgets in the applicable 1997 PM<INF>2.5</INF>

[[Page 23043]]

implementation plan or implementation plan submission.
    (iv) If the 2006 PM<INF>2.5</INF> nonattainment area partially 
covers a 1997 PM<INF>2.5</INF> nonattainment or maintenance area(s):
    (A) The budget test as required by Sec.  93.118 for the portion of 
the 2006 PM<INF>2.5</INF> nonattainment area covered by the 
corresponding portion of the approved or adequate motor vehicle 
emissions budgets in the 1997 PM<INF>2.5</INF> applicable 
implementation plan or implementation plan submission where they can be 
reasonably identified through the interagency consultation process 
required by Sec.  93.105; and
    (B) The interim emissions tests as required by Sec.  93.119, when 
applicable, for either: The portion of the 2006 PM<INF>2.5</INF> 
nonattainment area not covered by the approved or adequate budgets in 
the 1997 PM<INF>2.5</INF> implementation plan, the entire 2006 
PM<INF>2.5</INF> nonattainment area, or the entire portion of the 2006 
PM<INF>2.5</INF> nonattainment area within an individual state, in the 
case where separate 1997 PM<INF>2.5</INF> SIP budgets are established 
for each state in a multi-state 1997 PM<INF>2.5</INF> nonattainment or 
maintenance area.
* * * * *
    5. Section 93.116 is amended by revising paragraph (a) to read as 
follows:


Sec.  93.116  Criteria and procedures: Localized CO, PM<INF>10</INF>, 
and PM<INF>2.5</INF> violations (hot-spots).

    (a) This paragraph applies at all times. The FHWA/FTA project must 
not cause or contribute to any new localized CO, PM<INF>10</INF>, and/
or PM<INF>2.5</INF> violations, increase the frequency or severity of 
any existing CO, PM<INF>10</INF>, and/or PM<INF>2.5</INF> violations, 
or delay timely attainment of any standard or any required interim 
emission reductions or other milestones in CO, PM<INF>10</INF>, and 
PM<INF>2.5</INF> nonattainment and maintenance areas. This criterion is 
satisfied without a hot-spot analysis in PM<INF>10</INF> and 
PM<INF>2.5</INF> nonattainment and maintenance areas for FHWA/FTA 
projects that are not identified in Sec.  93.123(b)(1). This criterion 
is satisfied for all other FHWA/FTA projects in CO, PM<INF>10</INF> and 
PM<INF>2.5</INF> nonattainment and maintenance areas if it is 
demonstrated that during the time frame of the transportation plan 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, 
and the project has been included in a regional emissions analysis that 
meets applicable Sec. Sec.  93.118 and/or 93.119 requirements. The 
demonstration must be performed according to the consultation 
requirements of Sec.  93.105(c)(1)(i) and the methodology requirements 
of Sec.  93.123.


Sec.  93.118   [Amended]

    6. Section 93.118 is amended in paragraph (a) by removing the 
citation ``Sec.  93.109(c) through (l)'' and adding in its place 
``Sec.  93.109(c) through (n)''.
    7. Section 93.119 is amended as follows:
    a. In paragraph (a), by removing the citation ``Sec.  93.109(c) 
through (l)'' and adding in its place ``Sec.  93.109(c) through (n)''; 
and
    b. By revising paragraph (e)(2).


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

* * * * *
    (e) * * *
    Option 1 for paragraph (e)(2):
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than:
    (A) 2002 emissions, in areas designated nonattainment for the 1997 
PM<INF>2.5</INF> NAAQS as described in Sec.  93.109(i); or
    (B) 2008 emissions, in areas designated nonattainment for the 2006 
PM<INF>2.5</INF> NAAQS as described in Sec.  93.109(j) and (k).
    Option 2 for paragraph (e)(2):
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than:
    (A) 2002 emissions, in areas designated nonattainment for the 1997 
PM<INF>2.5</INF> NAAQS; or
    (B) Emissions in the most recent year for which EPA's Air Emissions 
Reporting Requirements (40 CFR Part 51, Subpart A) requires submission 
of on-road mobile source emissions inventories, as of the effective 
date of nonattainment designations for any PM<INF>2.5</INF> NAAQS other 
than the 1997 PM<INF>2.5</INF> NAAQS.
* * * * *


Sec.  93.121   [Amended]

    8. Section 93.121 is amended:
    a. In paragraph (b) introductory text by removing the citation 
``Sec.  93.109(l)'' and adding in its place ``Sec.  93.109(n)'';
    b. In paragraph (c) introductory text by removing the citation 
``Sec.  93.109(j) and (k)'' and adding in its place ``Sec.  93.109(l) 
and (m)''.
[FR Doc. E9-11184 Filed 5-14-09; 8:45 am]
BILLING CODE 6560-50-P


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