[Federal Register Volume 72, Number 84 (Wednesday, May 2, 2007)]
[Proposed Rules]
[Pages 24472-24494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7770]
[[Page 24471]]
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Part IV
Environmental Protection Agency
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40 CFR Parts 51 and 93
Transportation Conformity Rule Amendments to Implement Provisions
Contained in the 2005 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Proposed
Rule
Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 /
Proposed Rules
[[Page 24472]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2006-0612; FRL-8303-9]
RIN 2060-AN82
Transportation Conformity Rule Amendments to Implement Provisions
Contained in the 2005 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this action EPA is proposing to amend the transportation
conformity rule to make it consistent with Clean Air Act section 176(c)
as amended by SAFETEA-LU, which was signed into law on August 10, 2005
(Pub. L. 109-59). 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.
To make the transportation conformity rule consistent with SAFETEA-
LU's revisions to the Clean Air Act, this proposal would change the
regulations to reflect that the statute now provides more time for
state and local governments to meet conformity requirements, provides a
one-year grace period before the consequences of not meeting certain
conformity requirements apply, allows the option of shortening the
timeframe conformity determinations, and streamlines other provisions.
EPA is also including other proposals not related to SAFETEA-LU,
such as a proposal to allow the Department of Transportation (DOT) to
make categorical hot-spot findings for appropriate projects in carbon
monoxide areas. EPA has consulted with DOT, and they concur with this
proposal.
DATES: Comments must be received on or before June 1, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0612, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Attention Docket ID No. EPA-HQ-OAR-2006-0612. Please include two
copies.
Hand Delivery: EPA Docket Center, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution Avenue, NW., Washington DC. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. Please include two copies.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0612. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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.C. 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 Docket, EPA/DC, EPA
West Building, 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 Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Rudy Kapichak, State Measures and
Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number:
(734) 214-4574, fax number: (734) 214-4052; or Laura Berry, State
Measures and Conformity Group, Transportation and Regional Programs
Division, Environmental Protection Agency, 2000 Traverwood Road, Ann
Arbor, MI 48105, e-mail address: [email protected], telephone number:
(734) 214-4858, fax number: (734) 214-4052.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
II. Background
III. Frequency of Conformity Determinations
IV. Deadline for Conformity Determinations When a New Budget Is
Established
V. Lapse Grace Period
VI. Timeframes for Conformity Determinations
VII. Conformity SIPs
VIII. Transportation Control Measure Substitutions and Additions
IX. Categorical Hot-spot Findings for Projects in Carbon Monoxide
Nonattainment and Maintenance Areas
X. Deletion of Regulation 40 CFR 93.109(e)(2)(v)
XI. Miscellaneous Revisions
XII. 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, 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 government....................... Local transportation and air
quality agencies, including
metropolitan planning
organizations (MPOs).
[[Page 24473]]
State government....................... State transportation and air
quality agencies.
Federal government..................... Department of Transportation
(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:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
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.
Explain why you agree or disagree, suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs
You may pay a reasonable fee for copying docket materials.
C. How Can 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-2006-0612. 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
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 Section
I.B.1. above. EPA intends to work towards providing 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
A. What Is Transportation Conformity?
Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway
and transit project activities are consistent with (``conform to'') the
purpose of the state air quality implementation plan (SIP). Conformity
currently applies to areas that are designated nonattainment and those
redesignated to attainment after 1990 (``maintenance areas'' with plans
developed under Clean Air Act section 175A) for the following
transportation-related criteria pollutants: Ozone, particulate matter
(PM2.5 and PM10),\1\ carbon monoxide (CO), and
nitrogen dioxide (NO2). Conformity to the purpose of the SIP
means that transportation activities will not cause or contribute to
new air quality violations, worsen existing violations, or delay timely
attainment of the relevant national ambient air quality standards
(NAAQS or ``standards'').
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\1\ 40 CFR 93.102(b)(1) defines PM2.5 and
PM10 as particles with an aerodynamic diameter less than
or equal to a nominal 2.5 and 10 micrometers, respectively.
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B. History of the Transportation Conformity Rule
EPA's transportation conformity rule establishes the criteria and
procedures for determining whether transportation activities conform to
the SIP. EPA first promulgated the transportation conformity rule on
November 24, 1993 (58 FR 62188), and subsequently published a
comprehensive set of amendments on August 15, 1997 (62 FR 43780), that
clarified and streamlined language from the 1993 rule. EPA has made
other amendments to the rule both before and after the 1997 amendments.
On July 1, 2004, EPA published a final rule (69 FR 40004) that
amended the conformity rule to accomplish three objectives. The final
rule:
Provided conformity procedures for state and local
agencies under the 8-hour ozone and PM2.5 standards;
Incorporated existing EPA and U.S. Department of
Transportation (DOT) federal guidance into the conformity rule
consistent with a March 2, 1999, U.S. Court of Appeals decision; and
Streamlined and improved the conformity rule.
On May 6, 2005, EPA promulgated a final rule entitled,
``Transportation Conformity Rule Amendments for the New
PM2.5 National Ambient Air Quality Standard:
PM2.5 Precursors'' (70 FR 24280). This final rule specified
transportation-related PM2.5 precursors and when they apply
in transportation conformity determinations in PM2.5
nonattainment and maintenance areas.
Finally, on March 10, 2006, EPA promulgated a final rule (71 FR
12468) that established the criteria for determining which
transportation projects must be analyzed for local particulate matter
emissions impacts in PM2.5 and PM10 nonattainment
and maintenance areas. This rule established requirements in
PM2.5 areas and revised existing requirements in
PM10 areas.
C. Why Are We Issuing This Proposed Rule?
On August 10, 2005, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed
into law (Pub. L. 109-59). SAFETEA-LU section 6011 amended Clear Air
Act section 176(c) by:
Changing the required frequency of transportation
conformity determinations from three years to four years;
Providing two years to determine conformity after new SIP
motor vehicle emissions budgets are either found adequate, approved or
promulgated;
Adding a one-year grace period before the consequences of
a conformity lapse apply;
Providing an option for reducing the time period addressed
by conformity determinations;
Streamlining requirements for conformity SIPs; and
Providing procedures for areas to use in substituting or
adding transportation control measures (TCMs) to approved SIPs.
SAFETEA-LU section 6011(g) requires that EPA revise the
transportation conformity rule as necessary to address the new
statutory provisions no later than August 10, 2007. Today's proposed
rule addresses the relevant changes that SAFETEA-LU made to the Clean
Air Act.
In response to the revised statutory requirements, on February 14,
2006, EPA and DOT issued joint interim guidance to provide areas that
are subject to transportation conformity with guidance on implementing
the changes. This guidance, as well as additional information on the
transportation conformity rule and associated guidance, can be found on
EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/index.htm.
EPA has consulted with DOT on the development of this proposed
rule, and DOT concurs with its content. EPA has also met with
transportation and environmental organizations to discuss this
rulemaking. The proposal reflects our consideration of the comments
that we received through these stakeholder discussions. Documentation
of these stakeholder meetings and items discussed are included in the
docket for this rulemaking.
III. Frequency of Conformity Determinations
A. Proposal
EPA proposes to change Sec. 93.104(b)(3) to require that the MPO
and DOT determine conformity of a transportation plan at least every
four years, and Sec. 93.104(c)(3) to require that the MPO and DOT
determine conformity of a transportation improvement program (TIP) at
least every four years.
B. Rationale
These proposed changes to Sec. 93.104 are necessary to make the
conformity regulation consistent with the law. In SAFETEA-LU, Congress
amended Clean Air Act section 176(c)(4)(D)(ii) to require that
conformity be determined with a frequency of four years, unless the MPO
decides to update its transportation plan or TIP more frequently, or
the MPO is required to determine conformity in response to a trigger
(see Section IV.). The Clean Air Act previously required transportation
plan and TIP conformity to be determined every three years. These Clean
Air Act provisions have been in effect as of August 10, 2005.
C. Overlap With Transportation Planning Frequency Requirements
It is important to note how today's proposal would interact with
the implementation of SAFETEA-LU's transportation planning
requirements, although this proposal would not amend those
requirements. In addition to changing the required frequency of
conformity determinations from at least every three years to every four
years, SAFETEA-LU also changed the required frequency for updating
transportation plans and TIPs for transportation planning purposes.
Prior to SAFETEA-LU, transportation plans in nonattainment and
maintenance areas had to be updated every three years and TIPs updated
every two years; now both transportation plans and TIPs must be updated
every four years in these areas. However, MPOs can voluntarily update
their transportation plans and TIPs more frequently. Consequently,
conformity may still need to be determined more frequently than every
four years, because an updated or amended transportation plan or TIP
still must conform before it is adopted, regardless of the last time a
conformity determination was done.
In addition, section 6001(b) of SAFETEA-LU requires DOT to issue
guidance on a schedule for implementing SAFETEA-LU's transportation
planning provisions, and specifically states, ``The Secretary shall not
require a State or metropolitan planning organization to deviate from
its established planning update cycle to implement changes'' made by
SAFETEA-LU prior to July 1, 2007. The DOT guidance, which is available
at http://www.fhwa.dot.gov/hep/legreg.htm, provides information on the
development of transportation plans and TIPs prior to and on/after July
1, 2007, as part of SAFETEA-LU implementation. Conformity
determinations continue to be required when such updates are made, as
well as for any other amendments to the transportation plan and TIP
made mid-cycle, unless the amendment merely adds or deletes exempt
projects (see 40 CFR 93.104(b)(2) and (c)(2)). Further discussion of
the implementation of the SAFETEA-LU update cycles can also be found in
DOT's February 14, 2007, final
[[Page 24475]]
rulemaking on metropolitan and statewide transportation planning (72 FR
7224).
EPA's proposal does not change other details for implementing
conformity and planning frequency requirements. Both the transportation
planning update clock and the conformity update clock continue to be
reset on the date of the FHWA and FTA conformity determination for the
respective transportation plan and/or TIP. For more information, see
DOT's May 25, 2001, guidance, available at http://www.fhwa.dot.gov/environment/conformity/planup_m.htm.
D. Related Proposed Change: Consequences of a Control Strategy SIP
Disapproval
1. Proposal
EPA is proposing to revise Sec. 93.120(a)(2) to allow projects in
the conforming TIP, rather than the first three years of the conforming
transportation plan and TIP, to proceed after final EPA disapproval of
a control strategy SIP without a protective finding, i.e., when a
conformity freeze occurs.
2. Rationale
EPA is proposing this minor change to be consistent with general
implementation of SAFETEA-LU. Since 1997, the conformity rule has
allowed projects in the first three years of the conforming
transportation plan and TIP to proceed when a control strategy SIP is
disapproved without a protective finding. EPA's rationale for allowing
projects from the first three years of the transportation plan and TIP
to proceed was that previous statutory provisions required TIPs to
address a duration of three years. See the proposed rule of July 9,
1996, (61 FR 36124-6), and the final rule of August 15, 1997, (62 FR
43796-7) for this discussion.
SAFETEA-LU section 6001(a) revised DOT's metropolitan planning
requirements by extending the duration of TIPs from three years to four
years. Therefore, EPA believes that it is appropriate to revise Sec.
93.120(a)(2) to take into account the revised duration of TIPs. As we
stated in the 1996 proposed and 1997 final conformity rules, EPA
believes that aligning the requirements of Sec. 93.120(a)(2) with the
duration of the TIP provides the right balance between the competing
objectives of minimizing new transportation commitments after a SIP
disapproval and minimizing disruption to the transportation planning
process.
Instead of changing ``three years'' to ``four years'' in the
proposed regulatory text, EPA simply proposes to allow a project to
proceed during a freeze if it is included in the conforming TIP. EPA is
generalizing this language in order to account for the transition to
new SAFETEA-LU planning requirements, because some MPOs will have
three-year TIPs prior to developing four-year TIPs for SAFETEA-LU.
However, this proposed general language is not intended to change
other rule requirements. Although EPA's proposed change to Sec.
93.120(a)(2) would no longer include the phrase ``conforming
transportation plan,'' the requirements of Sec. 93.114 continue to
apply. Specifically, there must still be a currently conforming
transportation plan in place to approve projects during a conformity
freeze (except as noted in Section V.E., below).
IV. Deadline for Conformity Determinations When a New Budget Is
Established
A. Proposal
EPA is proposing to revise Sec. 93.104(e), which requires a new
transportation plan and TIP conformity determination to be made after
actions that establish a new motor vehicle emissions budget for
conformity, also known as ``triggers.'' EPA is proposing that MPOs and
DOT would have two years to determine conformity of a transportation
plan and TIP when a new budget is established, increased from the
current rule's 18 months. An MPO and DOT must make a conformity
determination within two years of the effective date of:
EPA's finding that a motor vehicle emissions budget(s)
(``budget(s)'') in a submitted SIP is adequate (40 CFR 93.104(e)(1));
EPA's approval of a SIP, if the budget(s) from that SIP
have not yet been used in a conformity determination (40 CFR
93.104(e)(2)); and
EPA's promulgation of a federal implementation plan (FIP)
with a budget(s) (40 CFR 93.104(e)(3)).
The requirement to determine conformity within two years of these
triggers is not directly related to SAFETEA-LU's transportation
planning update requirements.
B. Rationale
The proposed change is necessary to make the conformity regulation
consistent with the law. In SAFETEA-LU, Congress amended the Clean Air
Act to give MPOs and DOT two years before conformity must be determined
in response to one of the conformity triggers above. This Clean Air Act
provision has been in effect as of August 10, 2005. The 18-month clocks
that started prior to August 10, 2005, were extended by six months by
statute, bringing the total time of any existing clocks to two years.
Additionally, any clocks started by EPA adequacy findings or approvals
on or after August 10, 2005, are two-year clocks.
Prior to the passage of SAFETEA-LU, EPA's regulation required
conformity of a transportation plan and TIP to be determined when a new
budget was established, but the Clean Air Act did not include this
specific requirement. In the conformity regulations, EPA required that
conformity of transportation plans and TIPs be determined within 18
months of the SIP or FIP triggers described above to ensure that new
air quality information was introduced into the conformity process in a
timely manner.
With the passage of SAFETEA-LU, the Clean Air Act now includes the
requirement to determine conformity of a transportation plan and TIP
within two years of a trigger. The language added to the Clean Air Act
in section 176(c)(2)(E) closely followed EPA's regulation at Sec.
93.104(e). Therefore, EPA is merely proposing to align the deadline in
Sec. 93.104(e) with the new deadline under the statute.
No change is proposed for the events that trigger a new conformity
determination, because they are already consistent with the amendments
made to the Clean Air Act in SAFETEA-LU. Though the language added to
the Clean Air Act to describe the SIP approval trigger is slightly
different than EPA's regulation, EPA believes that 40 CFR 93.104(e)(2)
is already consistent with the law's requirements without any other
changes.
Clean Air Act 176(c)(2)(E)(ii) states that conformity must be
determined when EPA approves a SIP that establishes a budget ``if that
budget has not yet been determined to be adequate * * *'' The
regulation at 40 CFR 93.104(e)(2) states that conformity must be
determined when EPA approves a SIP that establishes a budget ``if the
budget(s) from that SIP have not yet been used in a conformity
determination.'' EPA believes this statement in the regulation is
substantively the same as the law, because a budget from an approved
SIP would have been used in a conformity determination prior to the
SIP's approval only if that budget had previously been found adequate.
If a budget had previously been found adequate, a clock for that budget
would already have started on the effective date of EPA's adequacy
finding, so no new clock would start at the time of
[[Page 24476]]
EPA's approval of the budget in the SIP. This interpretation is
consistent with how state and local agencies have implemented 40 CFR
93.104(e)(1) and (2) for some time, and changing this language may
cause confusion without adding value.
EPA also notes that no change is necessary for the point at which
the two-year clocks begin. As is currently required under the
conformity rule and Clean Air Act, the two-year clocks begin on the
effective date of EPA's adequacy finding or the effective date of EPA's
SIP approval or FIP promulgation action. (For more details regarding
the triggers, see Section III. of the August 6, 2002, final rule at 67
FR 50810 and Section XIX. of the July 1, 2004, final rule, at 69 FR
40050).
V. Lapse Grace Period
A. Proposal
EPA is proposing to add a one-year grace period before a conformity
lapse would occur when an area misses an applicable deadline. The
applicable deadlines are those that result from:
The requirements to determine conformity of a
transportation plan and TIP every four years under Sec. 93.104(b)(3)
and Sec. 93.104(c)(3) (see Section III.),
The requirement to determine conformity within two years
of a trigger under Sec. 93.104(e) (see Section IV.), and
The pre-SAFETEA-LU planning requirements to update a
transportation plan every three years, and update a TIP every two
years, during the transition to SAFETEA-LU's four-year planning cycle
for transportation plans and TIPs.\2\
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\2\ Prior to July 1, 2007, MPOs can still develop and adopt
transportation plans and TIPs consistent with the ``pre-SAFETEA-LU''
requirements (see DOT's guidance at http://www.fhwa.dot/hep/legreg.htm for more information).
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EPA notes that the regulatory changes discussed in Section V. of
this preamble do not impact isolated rural nonattainment or maintenance
areas, because these areas do not include an MPO with a transportation
plan or TIP conformity determination that would lapse. Isolated rural
areas continue to be covered by the requirements in 40 CFR 93.109(l).
We are also proposing a new Sec. 93.104(f), which would provide
the rules to allow projects to meet conformity requirements \3\ during
the lapse grace period.
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\3\ By the phrase ``meet conformity requirements,'' EPA means
that FHWA/FTA projects can be found to conform, and non-federal
projects can be approved.
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New Sec. 93.104(f)(1) would clarify that non-exempt FHWA/
FTA projects can be found to conform during the lapse grace period if
they are included in the currently conforming transportation plan and
TIP.
New Sec. 93.104(f)(2) would allow non-exempt FHWA/FTA
projects to be found to conform during the lapse grace period if they
were included in the most recent conforming transportation plan and
TIP. However, even though EPA proposes in Sec. 93.104(f)(2) that a
project could be found to conform when the transportation plan and TIP
have expired, a project must also meet DOT's planning requirements to
receive federal funding or approval.
Today's rulemaking does not change how exempt projects and traffic
signal synchronization projects are addressed under the transportation
conformity rule. These projects are able to proceed during the lapse
grace period, and for that matter during a conformity lapse, because
exempt projects and traffic signal synchronization projects do not
require project-level conformity determinations. EPA does not need to
propose that exempt projects or traffic signal synchronization projects
can proceed during the grace period because they are exempted from the
requirement to determine conformity altogether, per 40 CFR 93.126 and
93.128.
In addition, EPA is also proposing to revise Sec. Sec. 93.114,
93.115, and 93.121 by including a reference to Sec. 93.104(f) to
account for the lapse grace period:
Section 93.114 currently requires that there be a
currently conforming transportation plan and TIP at the time of project
approval. EPA proposes that during the lapse grace period, there does
not need to be a currently conforming plan and TIP at the time of
project approval. However, EPA proposes that non-exempt projects must
come from the most recent conforming transportation plan and TIP. (A
project must also meet DOT's planning requirements to receive federal
funding or approval. See Section V.C. below for further discussion.)
Section 93.115 currently requires that non-exempt FHWA/FTA
projects come from a conforming transportation plan and TIP. EPA
proposes to add that during the lapse grace period, a project could
come from the most recent conforming plan and TIP. (A project must also
meet DOT's planning requirements to receive federal funding or
approval. See Section V.C. below for further discussion.)
Similarly, Sec. 93.121 currently requires that regionally
significant non-federal projects either come from the currently
conforming transportation plan and TIP, or the regional emissions
analysis that supports such a transportation plan and TIP. EPA proposes
to add that during the lapse grace period, regionally significant non-
federal projects could be approved if they are from the most recent
conforming transportation plan and TIP, or the regional emissions
analysis that supported the most recent conforming transportation plan
and TIP.
B. Rationale
These proposed changes are necessary to make the conformity
regulation consistent with the amended law and the intentions of
Congress. In SAFETEA-LU, Congress amended the Clean Air Act to provide
a one-year grace period before the consequences of a conformity lapse
apply in section 176(c)(9) and added a definition of ``lapse'' in
section 176(c)(10). The changes to the law have been in effect as of
August 10, 2005. However, SAFETEA-LU's addition of paragraphs (9) and
(10) to the Clean Air Act conformity provisions in section 176(c) and
today's proposal do not affect other requirements not related to
conformity, such as the statutory transportation planning requirements
and DOT's regulations that implement them. These other requirements are
unchanged by the addition of Clean Air Act sections 176(c)(9) and (10)
and thus continue to apply during the lapse grace period. See Section
V.C. below for further discussion.
Through SAFETEA-LU, Congress created new Clean Air Act section
176(c)(9) to provide a one-year grace period before the consequences of
a conformity lapse apply. This section states that if a conformity
determination for a transportation plan or TIP ``is not made by an
applicable deadline and such failure is not corrected * * * within 12
months after such deadline * * *, the transportation plan shall
lapse.''
Congress also added a statutory definition for the word ``lapse''
in Clean Air Act section 176(c)(10) which states, ``the term `lapse'
means that the conformity determination for a transportation plan or
transportation improvement program has expired, and thus there is no
currently conforming transportation plan or transportation improvement
program.'' This statutory definition is generally consistent with EPA's
existing definition of the word ``lapse'' in 40 CFR 93.101.
EPA concludes from these two Clean Air Act paragraphs that the
conformity status of a transportation plan and TIP does not lapse for
12 months from an applicable deadline. Thus, as long as they are still
valid in terms of meeting other federal requirements, the
transportation plan and TIP continue to
[[Page 24477]]
exist as the currently conforming transportation plan and TIP during
the lapse grace period.
Through Sec. 93.104(f)(1), EPA proposes that projects from the
currently conforming transportation plan and TIP (or regional emissions
analysis) can be found to conform during the lapse grace period. Clean
Air Act section 176(c)(2)(C)(i) states,
a transportation project may be adopted or approved by a
metropolitan planning organization or any recipient of funds
designated under title 23 or chapter 53 of title 49, or found in
conformity by a metropolitan planning organization or approved,
accepted, or funded by the Department of Transportation only if it
meets either the requirements of subparagraph (D) or the following
requirements--
(i) such a project comes from a conforming plan and program.
Similarly, the existing language in Clean Air Act section 176(c)(2)(D)
and Sec. 93.121(a) allows regionally significant non-federal projects
in metropolitan and donut areas to proceed during the lapse grace
period if they are from a currently conforming transportation plan and
TIP (or regional emissions analysis).
In the case where during the lapse grace period, the transportation
plan or TIP expire (i.e., the transportation plan or TIP has reached
the end of the transportation planning cycle and has not yet been
updated), EPA believes that Clean Air Act sections 176(c)(2)(C)(i) and
(D) are ambiguous in light of the addition of sections 176(c)(9) and
(10). EPA proposes in Sec. 93.104(f)(2) that non-exempt FHWA/FTA
projects and regionally significant non-federal projects from the most
recent conforming transportation plan and TIP (or regional emissions
analysis) can meet conformity requirements during the lapse grace
period, based on our reading of Congressional intent. (As discussed in
C. of this section, although EPA interprets the added paragraphs (9)
and (10) of Clean Air Act 176(c) to allow projects to meet conformity
requirements without a currently conforming transportation plan and
TIP, a project must also meet DOT's planning requirements to receive
federal funding or approval.)
EPA believes the statute is ambiguous in the case where the
transportation plan or TIP expires because on its face, Clean Air Act
sections 176(c)(2)(C)(i) and (D) require a conforming transportation
plan and TIP to be in place for a project to meet conformity
requirements.
However, by adding sections 176(c)(9) and (10) to the Clean Air Act
in SAFETEA-LU, Congress clearly meant to give areas the ability for
transportation projects to meet conformity requirements when
transportation plan and TIP conformity is not determined on time. Part
of the definition of ``lapse'' in Clean Air Act section 176(c)(10) is
that ``there is no currently conforming transportation plan or TIP.''
An area that has a conforming transportation plan and TIP is not in a
lapse and thus would have no need of a lapse grace period.
If the requirement to have a conforming transportation plan and TIP
in place for projects to meet conformity requirements still had to
apply during the lapse grace period, the lapse grace period could only
be used in certain cases. The lapse grace period could not be used at
all in the case when a lapse occurs because an area's transportation
plan or TIP expires.
SAFETEA-LU has made the required frequency of transportation plan
updates, TIP updates, and conformity determinations to be the same. EPA
believes that in the future, four-year transportation plan and TIP
update cycles will likely expire at the same time as a four-year
conformity deadline, because transportation plans and TIP must conform
when they are adopted. Therefore, if projects could not meet conformity
requirements during the lapse grace period because the transportation
plan or TIP expired, (i.e., there ceases to be a currently conforming
transportation plan or TIP), the effect of the lapse grace period in
these cases would be nil. In effect, if Clean Air Act sections
176(c)(2)(C)(i) and (D) must apply during the lapse grace period in all
cases, the lapse grace period could rarely be used in practice.
Because the statute is ambiguous in this case, EPA turns to the
legislative history to clarify Congressional intent. The SAFETEA-LU
conference report language states:
During the 12-month grace period, only transportation projects
in the most recent conforming plan and TIP could be funded or
approved until the required determinations are made pursuant to
Section 176(c) of the Clean Air Act.\4\
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\4\ Joint Explanatory Statement of the Committee of Conference,
``Section 6011, Transportation Conformity,'' p. 1060.
The report language says that projects from the ``most recent
conforming plan and TIP'' can be funded or approved during the lapse
grace period. It does not say that a currently conforming
transportation plan and TIP need to be in place at the time of project
approval. EPA concludes from this language that Congress meant to allow
conformity requirements to be met for projects during the lapse grace
period even if there is no conforming transportation plan and TIP at
that time.
In other words, based on the legislative history, EPA interprets
the lapse grace period established in Clean Air Act section 176(c)(9)
as a time where the Clean Air Act section 176(c)(2)(C)(i) and (D)
requirements for a project to come from a currently conforming
transportation plan and TIP (or regional emissions analysis) could be
met if the project comes from the most recent conforming transportation
plan and TIP (or regional emissions analysis). In sum, the addition of
Clean Air Act section 176(c)(9) allows a project to meet conformity
requirements during the grace period as long as the project was in the
``most recent conforming plan and TIP'' (or in the regional emissions
analysis that supported the most recent conforming transportation plan
and TIP) prior to the start of the lapse grace period.
Note, however, that EPA believes this conclusion only applies to
transportation conformity--what Congress included in section 176(c) of
the Clean Air Act and discussed in its report language referenced above
pertain only to transportation conformity requirements, not to DOT's
transportation planning requirements. DOT and EPA agree that planning
requirements still must be met during the lapse grace period in order
for DOT to fund or approve a project as discussed further in C. of this
section.
Finally, EPA believes that today's proposal would be consistent
with the Clean Air Act's general goals to ensure that the air quality
impacts of projects are considered prior to meeting conformity
requirements. These goals are accomplished by ensuring that the
regional and localized emissions impacts of projects have been
considered prior to meeting conformity requirements. Again, in order
for a project to meet conformity requirements during the lapse grace
period, the project's regional emissions impacts would have already
been considered in the conformity determination for the current or most
recent transportation plan and TIP. Project-level conformity
requirements--including any applicable hot-spot requirements--must also
be met during the lapse grace period.
C. How Does the Grace Period Work in Practice?
The one-year conformity lapse grace period begins when the
conformity determination required for a transportation plan or TIP is
not made by the applicable deadline. As described above, during the
grace period, a project may meet conformity requirements as
[[Page 24478]]
long as it was included in either the currently conforming
transportation plan and TIP or the most recent conforming
transportation plan and TIP and other project-level conformity
requirements are met.
An FHWA/FTA project must also meet DOT's planning requirements to
receive federal funding or approval. Specifically, 23 U.S.C. 134(j)(3)
and 49 U.S.C. 5303(j)(3) require a TIP to be in place and 23 U.S.C.
135(g)(4) and 49 U.S.C. 5304(g)(4) require a statewide TIP (STIP) to be
in place for DOT to authorize transportation projects. The STIP
contains all of the metropolitan area TIPs in the state.
Three specific scenarios are presented below to show how expiration
of the transportation plan and/or STIP/TIP at the time of the missed
deadline affects the ability to advance FHWA/FTA projects during the
lapse grace period. These scenarios are consistent with those
highlighted in EPA and DOT's joint February 14, 2006, guidance
entitled, ``Interim Guidance for Implementing the Transportation
Conformity Provisions in the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).''
Scenario 1: If the transportation plan has expired, but the
STIP/TIP are still in effect, FHWA/FTA can continue to authorize and
take action on projects in the STIP/TIP throughout the duration of
the grace period or the duration of the STIP/TIP, whichever is
shorter. The TIP and affected portion of the STIP cannot be amended
once the transportation plan expires. Prior to transportation plan
expiration, an MPO and state should ensure that the STIP/TIP include
the desired projects from the transportation plan to continue to
operate during the conformity lapse grace period.\5\
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\5\ For example, an MPO may want to amend its TIP before the
transportation plan expires to allow projects from the fifth year of
the transportation plan to proceed during the lapse grace period.
The conformity determination for such an amended TIP would have to
be made before the lapse grace period begins, but the determination
could rely on the previous regional emissions analysis as long as
the requirements of 40 CFR 93.122(g) are met.
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Scenario 2: If the transportation plan is still in effect, but
the STIP/TIP have expired, FHWA/FTA cannot authorize FHWA/FTA
projects. In order to advance projects, a new STIP/TIP would have to
be developed that contains only projects that are consistent with
the transportation plan. A conformity determination would have to be
made for the new TIP unless it includes only exempt projects,
traffic signal synchronization projects, or TCMs in an approved SIP.
For example, if a new TIP included a non-exempt project from later
years of the transportation plan, the new TIP would require a
conformity determination. (However, the determination could rely on
the previous regional emissions analysis as long as the requirements
of 40 CFR 93.122(g) are met.)
Scenario 3: If both the transportation plan and the STIP/TIP
have expired, FHWA/FTA will not authorize projects under the
planning regulations.
Regardless of the scenario, in addition to transportation planning
requirements, project-level conformity requirements must also be met
during the lapse grace period including any required hot-spot analysis.
Refer to the Table 1 in 40 CFR 93.109 for the conformity criteria and
procedures that apply to projects.
D. Newly Designated Nonattainment Areas
The new lapse grace period provision in Clean Air Act section
176(c)(9) does not apply to the deadline for newly designated
nonattainment areas to make the initial transportation plan/TIP
conformity determination within 12 months of the effective date of the
nonattainment designation. The new grace period in Clean Air Act
section 176(c)(9) applies prior to when a lapse occurs, and Clean Air
Act section 176(c)(10) and 40 CFR 93.101 define the term lapse to mean
that the conformity determination for a transportation plan or TIP has
expired. Therefore, the lapse grace period does not apply unless an
area has already had a conforming transportation plan and TIP that has
expired; it does not apply to a newly designated area that has not yet
made its initial conformity determination for a transportation plan and
TIP for a new pollutant or air quality standard.
Although the lapse grace period does not apply to newly designated
areas, these areas already have similar existing flexibility because
Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) give newly
designated areas one year before conformity applies, starting from the
effective date of final nonattainment designation.\6\
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\6\ This one-year grace period for newly designated areas most
recently applied to the areas designated for the 8-hour ozone and
PM2.5 standards. All of these metropolitan areas have at
this point determined transportation plan/TIP conformity.
---------------------------------------------------------------------------
Although the statutory and regulatory definitions of lapse do not
apply to newly designated areas, once conformity applies, the identical
restrictions of a conformity lapse will exist for any newly designated
nonattainment area that does not have a conforming transportation plan
and TIP in place one year after the effective date of EPA's
designation. EPA and DOT will continue to use the term ``lapse''
informally to describe these situations.
E. Conformity Freezes
EPA also notes in the preamble to today's proposal the interaction
of conformity lapse grace periods and conformity freezes. A conformity
freeze occurs if EPA disapproves a control strategy SIP without a
protective finding for the budgets in that SIP (see Sec.
93.120(a)(2)).\7\ During a freeze, some projects can be advanced, but
the area cannot adopt a new transportation plan or TIP until a new SIP
is submitted with budgets that EPA approves or finds adequate. If
conformity of a transportation plan and TIP has not been determined
using a new control strategy SIP with budgets that EPA approves or
finds adequate within two years of EPA's SIP disapproval, highway
sanctions apply (under Clean Air Act section 179(b)(1)) and the freeze
becomes a lapse.
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\7\ Such disapprovals occur infrequently; EPA has only
disapproved SIPs without a protective finding in three instances
since the 1997 conformity rule was promulgated.
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Under today's proposal, the lapse grace period would apply during a
freeze only if the transportation plan/TIP expire before highway
sanctions apply. The lapse grace period would apply in this case
because the grace period applies when an area misses an applicable
deadline to determine conformity for the transportation plan and TIP.
The transportation plan and TIP would remain in a freeze even once the
lapse grace period begins, and would remain frozen until either a
conformity determination is made to new adequate or approved SIP
budgets as described above, or highway sanctions apply.
An area that is in a conformity freeze and subsequently enters the
lapse grace period would lapse at the end of the grace period (one year
after the missed deadline), or when highway sanctions apply, whichever
comes first. As described above, however, a project must also meet
DOT's planning requirements to receive federal funding or approval
during the lapse grace period.
If a freeze becomes a lapse because two years transpired from the
effective date of EPA's disapproval of the SIP (when highway sanctions
are applied), the area cannot use the lapse grace period. A lapse that
occurs because two years have transpired since EPA's disapproval of a
SIP is not a lapse that results from missing an applicable deadline to
determine conformity. Thus, the lapse grace period would not apply by
its own terms in this circumstance.
VI. Timeframes for Conformity Determinations
A. Overview
One of the changes Congress made via SAFETEA-LU was to add a new
[[Page 24479]]
paragraph (7) to Clean Air Act section 176(c), which provides MPOs the
option to elect to shorten the period of time addressed by their
transportation plan/TIP conformity determinations, or ``timeframe.''
Prior to this change, every conformity determination for a
transportation plan and TIP has had to cover the entire timeframe
covered by the transportation plan. Transportation plans cover a period
of 20 years or longer. Because of the requirement to determine
conformity of the entire transportation plan, the last year of the
transportation plan has had to be analyzed in all transportation plan
or TIP conformity determinations, as well as other earlier years in the
timeframe of the transportation plan.
Under the amended Clean Air Act, an MPO demonstrates conformity for
the entire timeframe of the transportation plan unless the MPO elects
to shorten the conformity timeframe. An election to shorten the
conformity timeframe could be made only after consulting with the state
and local air quality agencies \8\ and soliciting public comment and
considering such comments. If an MPO makes this election, the
conformity determination does not have to cover the entire length of
the transportation plan, but in some cases an informational analysis is
also required.
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\8\ The amendment to the Clean Air Act that allows areas to
shorten the timeframe of conformity determinations, Clean Air Act
section 176(c)(7), requires the MPO to consult with ``the air
pollution control agency'' and defines this term in paragraph (E) to
mean ``an air pollution control agency (as defined in section
302(b)) that is responsible for developing plans or controlling air
pollution within the area covered by a transportation plan.'' Clean
Air Act section 302(b) states, ``The term ``air pollution control
agency'' means any of the following'' and lists several kinds of
agencies. Because the statute says the term means ``any'' of the
listed agencies rather than all of them, EPA believes the term
refers to the relevant state and local air quality agencies. In the
transportation conformity process, the relevant agencies are the
state and local air quality agencies that have always participated
in the consultation process, pursuant to Clean Air Act section
176(c)(4)(D)(i). Therefore, EPA is using the term ``state and local
air agencies'' in this preamble and proposed rule, consistent with
CAA 176(c)(4)(D)(i) and 40 CFR 93.105.
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This provision giving areas the option to shorten their conformity
timeframe took effect on August 10, 2005, when SAFETEA-LU became law.
Note, however, that transportation plan/TIP conformity determinations
must cover the entire length of the transportation plan unless an
election is made to shorten the timeframe.
We are proposing to make several changes in the regulatory
language. For some aspects of this provision, we have proposed more
than one alternative. EPA's proposals for implementing this new Clean
Air Act provision are organized as follows:
Proposal for MPOs in areas that do not have an adequate or
approved second maintenance plan (Section VI.B.).
Proposal for MPOs in areas with adequate or approved
second maintenance plans (Section VI.C.).
Proposal for how elections are made to either shorten the
conformity timeframe, or revert to the original conformity timeframe
once the timeframe has been shortened (Section VI.D.).
Proposal for isolated rural areas (Section VI.E.).
Proposal for conformity implementation under a shortened
conformity timeframe, including which years must be analyzed (Section
VI.F.).
EPA solicits comments for all of these proposals as well as other
information that would improve the implementation of the final rule.
B. Timeframe Covered by Conformity Determinations in Areas Without
Second Maintenance Plans
1. Proposal for Metropolitan Areas
EPA is proposing that transportation plan and TIP conformity
determinations would cover the timeframe of the transportation plan,
unless an MPO elects to shorten the timeframe. In areas without an
adequate or approved second maintenance plan (i.e., a maintenance plan
addressing Clean Air Act section 175A(b)), a shortened conformity
determination would address the longest of the following timeframes:
The first 10-year period of the transportation plan;
The latest year in the SIP (or FIP) applicable to the area
that contains a motor vehicle emission budget; or
The year after the completion date of a regionally
significant project if the project is included in the TIP, or the
project requires approval before the subsequent conformity
determination.
EPA is proposing in Sec. 93.106 that a conformity determination
must cover the longest of these three timeframes.
Under this proposal, the MPO would not be able to choose which of
these three timeframes it prefers to examine in the conformity
determination; it would have to examine the longest of them. The MPO
would have to determine which timeframe is the longest for each
conformity determination, as the longest timeframe could change from
determination to determination, because for example new budgets have
been established or new regionally significant projects have been added
to the TIP since the previous conformity determination.
2. Rationale
The proposed changes to allow MPOs to shorten the timeframe covered
by a conformity determination are necessary to make the conformity
regulation consistent with the law. In SAFETEA-LU, Congress amended the
Clean Air Act by adding section 176(c)(7), which allows MPOs to elect
to shorten the timeframe of conformity determinations. EPA is proposing
that conformity determinations cover the timeframe of the
transportation plan unless the MPO makes an election because Clean Air
Act section 176(c)(7)(A) specifically states, ``Each conformity
determination * * * shall require a demonstration of conformity for the
period ending on either the final year of the transportation plan, or
at the election of the metropolitan planning organization, * * *'' a
shorter timeframe. EPA's proposal that a shortened timeframe must cover
the longest of the three periods specified also comes directly from the
Clean Air Act. Specifically, section 176(c)(7)(A) states that a
shortened conformity determination must cover:
The longest of the following periods: (i) The first 10-year
period of any such transportation plan. (ii) The latest year in the
implementation plan applicable to the area that contains a motor
vehicle emissions budget. (iii) The year after the completion date
of a regionally significant project if the project is included in
the transportation improvement program or the project requires
approval before the subsequent conformity determination.
EPA has followed this statutory language in the proposed regulatory
language in Sec. 93.106.
C. Timeframe of Conformity Determinations in Areas With Second
Maintenance Plans
1. Proposal for Metropolitan Areas
EPA is proposing that in areas that have an adequate or approved
maintenance plan under Clean Air Act section 175A(b), transportation
plan and TIP conformity determinations would cover the timeframe of the
transportation plan unless an MPO elects to shorten the timeframe.
Section 175A(b) of the Clean Air Act is the provision that describes
the submission of a maintenance plan that covers the second ten years
of the maintenance period. If the MPO elects to shorten the timeframe,
transportation plan and TIP conformity determinations would cover the
period of time through the end of the maintenance period, that is, the
period of time covered through the
[[Page 24480]]
second maintenance plan. This period of time is in contrast to the
longest of the three periods proposed in Section VI.B. for areas that
do not have an adequate or approved second maintenance plan. EPA has
proposed regulatory language for shortening the timeframe in areas with
second maintenance plans in Sec. 93.106 as well.
2. Rationale
Our proposal for a shortened timeframe for metropolitan areas with
an adequate or approved second maintenance plan results directly from
the Clean Air Act as amended by SAFETEA-LU. Clean Air Act section
176(c)(7)(C) states that conformity determinations can be made for a
shorter timeframe ``at the election of the metropolitan planning
organization * * *'' Therefore, in these areas EPA proposes that
conformity determinations must cover the timeframe of the
transportation plan unless an election is made. The proposal that the
shortened timeframe would cover through the end of the second
maintenance plan also results directly from Clean Air Act section
176(c)(7)(c). This section specifically says that in areas with a
second maintenance plan, a shortened conformity timeframe is ``required
to extend only through the last year of the implementation plan
required under section 175(A)(b)'' [sic] rather than the longest of the
three periods established in Clean Air Act section 176(c)(7)(A).
D. Process for Elections
1. Proposal for Metropolitan Areas
First, before an MPO elects to shorten the conformity timeframe,
EPA proposes that it would have to consult with state and local air
quality planning agencies, solicit public comment, and consider those
comments. EPA is proposing that consultation with the state and local
air agencies would occur early in the decision-making process.
Second, EPA is also proposing that once an MPO makes an election to
shorten the period of time addressed in its transportation plan/TIP
conformity determinations, the election would remain in effect until
the MPO elects otherwise. An MPO would make its election only once for
a pollutant or pollutants and any relevant precursors, unless it
chooses to elect otherwise in the future.
Third, EPA is proposing two options for how an MPO would change a
previous election.
Option A: Require MPOs to consult with the state and local
air quality agencies, solicit public comments and consider such
comments when an MPO that has elected to shorten the timeframe wants to
revert back to determining conformity for the entire transportation
plan length.
Option B: Allow the MPO to elect to revert to covering the
entire length of the transportation plan without any additional
consultation or public comment.
EPA has proposed regulatory text for Option A but could finalize
either option.
Finally, EPA is proposing to place the requirements to consult the
state and local air quality agencies, solicit public comments, and
consider these comments when electing to shorten the conformity
timeframe in Sec. 93.106, with the rest of the regulatory language for
shortening the timeframe.
2. Rationale
General process. Clean Air Act section 176(c)(7)(A) and (C) are the
sections of the statute that allow elections to shorten the conformity
timeframe. Both of these sections allow such elections to be made only
``after consultation with the air pollution control agency and
solicitation of public comments and consideration of such comments.''
The Clean Air Act specifies consultation with the air agency and does
not require concurrence.
A definition of ``air pollution control agency'' has been added at
Clean Air Act section 176(c)(7)(E), which states that this term ``means
an air pollution control agency (as defined in Section 302(b)) that is
responsible for developing plans or controlling pollution within the
area covered by the transportation plan.'' Clean Air Act section 302(b)
states, ``the term `air pollution control agency' means any of the
following'' and lists several kinds of agencies. Because the statute
says the term means ``any'' of the listed agencies rather than all of
them, EPA believes the term refers to the relevant air quality
agencies. In the transportation conformity process, the relevant
agencies are the state and local air quality agencies that have
regularly participated in the consultation process, pursuant to Clean
Air Act section 176(c)(4)(D)(i). Therefore, EPA is using the term
``state and local air agencies'' in this preamble and in our proposal
for Sec. 93.106, consistent with the statute and 40 CFR 93.105.
EPA believes that consultation with the state and local air quality
agencies on shortening the timeframe would occur in the context of the
normal interagency consultation process. EPA believes that for this
consultation to be meaningful, it needs to occur at an early stage in
the decision-making process. Therefore, we have proposed that
consultation occur when the MPO begins to consider shortening the
timeframe. For example, it may be appropriate to discuss an election to
shorten the conformity timeframe in the preliminary stages of
developing the regional emissions analysis.
EPA is not proposing any new specific procedures for soliciting
public comment. MPOs should follow their normal process for public
participation regarding conformity actions for this election. MPOs are
not required to revise their public participation/involvement
procedures required by SAFETEA-LU section 6001(a) to address public
consultation on reducing the area's conformity timeframe.
MPOs are encouraged to make their elections prior to the start of
the public comment period for their subsequent conformity
determination. Making the election prior to the start of the public
comment period for the subsequent conformity determination ensures that
the public will understand that future conformity determinations will
address a shorter period of time. However, there may be instances when
an MPO will want to take public comments on the election to shorten the
conformity timeframe at the same time that it is taking public comment
on a conformity determination. In those cases, the conformity
information presented to the public should include both a regional
emissions analysis reflecting the election of a shorter timeframe and a
regional emissions analysis that reflects the full length of the
transportation plan. EPA recommends that both a shortened and a full-
length analysis be included so that the MPO can complete its conformity
determination according to its desired schedule, even if it receives
negative public comment about shortening the timeframe.
EPA is proposing that once an election to shorten the timeframe is
made, it would remain in effect until the MPO elects otherwise, because
that statement is specifically included in the statute. Clean Air Act
section 176(c)(7)(D) states, ``Any election by a metropolitan planning
organization under this paragraph shall continue to be in effect until
the metropolitan planning organization elects otherwise.''
Changing previous elections. EPA requests comment on the two
options for the process that MPOs must follow if they have shortened
the conformity timeframe and want to revert back to determining
conformity for the full length of the transportation plan. EPA asks
commenters to consider under what circumstances, if any, would
[[Page 24481]]
consultation with state and local agencies and solicitation of public
comment be warranted when reverting back to a full-length conformity
timeframe.
Option A would require MPOs to consult with the state and local air
pollution control agencies, solicit public comment, and consider any
comments received before reverting to a timeframe that covers the full
length of the transportation plan. This approach is an option because
Clean Air Act section 176(c)(7)(D) states that a shortened timeframe
remains in effect unless an MPO ``elects otherwise.'' In other
instances in Clean Air Act section 176(c)(7), an ``election'' includes
consultation with the state and local air quality agencies,
solicitation of public comment and consideration of any comments
received. Therefore, one interpretation is that an election to revert
to determining conformity for the entire length of the transportation
plan should also include consultation with the state and local air
pollution control agencies, solicitation of public comment, and
consideration of those comments.
On the other hand, one could argue that an MPO should be able to
revert to the full timeframe without additional consultation with the
state and local air quality agencies or solicitation and consideration
of public comment, which is proposed under Option B. If an MPO wants to
revert to the full timeframe, it is returning to the default
requirement in Clean Air Act section 176(c)(7). One could argue that no
additional consultation or public comment should be necessary to
determine conformity for the full length of the transportation plan
because that is the approach that has been used for conformity since
1993.
Furthermore, existing conformity requirements may be sufficient to
cover the case when previous elections change. Consultation with the
state and local air quality planning agencies must occur on the
conformity determination anyway within the interagency consultation
process. Similarly, the MPO must seek public comment on the conformity
determination, according to the requirements in 40 CFR 93.105(e). By
relying on these existing requirements, the MPO could be spared the
additional resource costs associated with running another interagency
consultation process or full public comment process for electing to
revert to the full conformity timeframe.
Placement in regulatory text. Regarding the placement of
requirements for state and local air quality agency consultation and
public comment, EPA is proposing to include them in Sec. 93.106
because we are proposing most of the regulatory text for implementing
the provision to shorten the timeframe in this section. The main
advantage of including requirements for state and local air agency
consultation and public comment in this section is that it would not
require any amendments to state conformity SIPs. EPA believes that it
is reasonable to include these process requirements along with other
timeframe requirements, because this type of consultation would only
occur when the MPO is considering electing to shorten the timeframe.
The proposal would also streamline the rule and eliminate redundant
text.
EPA is not proposing to include these consultation requirements in
Sec. 93.105 because such a change is not required by the Clean Air Act
as amended by SAFETEA-LU. In addition, doing so would force states that
already have submitted or approved conformity SIPs to amend them, which
could require significant state and local resources. This result would
be an unfortunate coincidence, given that SAFETEA-LU streamlined the
conformity SIP requirements (see Section VII. of this preamble for this
discussion).
E. Isolated Rural Nonattainment and Maintenance Areas
1. Proposal
Isolated rural nonattainment and maintenance areas do not have MPOs
and are not required to prepare transportation plans or TIPs. Projects
in these areas are generally included in the long-range statewide
transportation plan and the statewide TIP. Isolated rural areas are not
``donut areas.\9\''
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\9\ Donut areas are defined as ``geographic areas outside a
metropolitan planning area boundary, but inside the boundary of a
nonattainment or maintenance area that contains any part of a
metropolitan area(s)* * *'' (40 CFR 93.101).
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EPA is proposing two options for comment:
Option 1: Isolated rural areas would also have the option
to shorten the timeframe covered by conformity determinations.
Option 2: Isolated rural areas would not be given the
option to shorten the timeframe covered by conformity determinations.
Under Option 1, EPA's proposals for isolated rural areas are
parallel to the proposals for metropolitan areas in Sections VI.B. and
C. That is, EPA is proposing that a conformity determination for a
project in an isolated rural area would have to include a regional
emissions analysis that covers the entire timeframe of the statewide
transportation plan (i.e., at least 20 years), unless the area elects
to shorten the timeframe.
Before an isolated rural area has an adequate or approved second
maintenance plan, a conformity determination for a project in an
isolated rural area that has elected to shorten the timeframe would
need to include a regional emissions analysis that covers the longest
of the following three timeframes:
The first 10-year period of the statewide transportation
plan;
The latest year in the SIP (or FIP) applicable to the area
that contains a motor vehicle emission budget; or
The year after the completion date of a regionally
significant project if that project is included in the portion of the
STIP covering the area, or the project requires approval before the
subsequent conformity determination.
Once an isolated rural area has an adequate or approved second
maintenance plan, a conformity determination for a project in an
isolated rural area that has elected to shorten the timeframe would
cover the period of time through the end of the second maintenance
plan.
EPA is including regulatory text for Option 1 in Sec.
93.109(l)(2)(i) by including a reference to Sec. 93.106(d). To
finalize Option 2, EPA would simply delete this reference. EPA could
finalize either option under this proposed rule.
Given that isolated rural areas do not have an MPO, EPA is
proposing two options for which agency would make the election to
shorten the timeframe in an isolated rural area:
State DOT option: The state DOT would make the election to
shorten the conformity timeframe in an isolated rural area.
Project sponsor option: The project sponsor would make the
election.
EPA requests comment on these two options, and asks whether there
are other alternatives that would also be viable in isolated rural
areas. We are including regulatory text for the state DOT option in
Sec. 93.109(l)(2)(i), however EPA could finalize either option or an
alternative suggested during the comment period under this proposed
rule.
EPA's proposed process requirements for isolated rural areas are
exactly the same as the proposed requirements for metropolitan areas.
This result is achieved because EPA is proposing in Sec.
93.109(l)(2)(i), which addresses isolated rural areas, that references
to the MPO in Sec. 93.106(d) should be taken to mean the state DOT.
[[Page 24482]]
2. Rationale
EPA believes it is appropriate to extend this flexibility to
isolated rural areas to be consistent with how the conformity rule has
been implemented in isolated rural areas. The Clean Air Act amendment
made by SAFETEA-LU allowing areas to shorten their conformity
timeframes does not prohibit its use in isolated rural areas.
In general, most aspects of the conformity regulation apply
consistently to metropolitan and isolated rural areas. Where there are
differences, the differences have given isolated rural areas additional
flexibility. For example, in the 1997 conformity rule, EPA provided
isolated rural areas the flexibility to choose among several tests for
demonstrating conformity for years after the time period addressed by
the SIP (see 40 CFR 93.109(l)(2)(ii)).
Our rationale in giving isolated rural areas the flexibility to
choose among several tests for years after the time period addressed by
the SIP is especially relevant to today's proposal to give these areas
the ability to shorten their conformity timeframes. In the July 9,
1996, proposed rule, we stated, ``isolated rural areas generally do not
have a metropolitan transportation planning process that could serve as
a forum for identifying and addressing long-term growth issues in years
not addressed by the SIP'' (61 FR 36121). Today's proposal to allow
isolated rural areas to shorten their timeframe would also help to
alleviate that concern. EPA believes that giving isolated rural areas
the ability to shorten their timeframe would still ensure that projects
conform.
In the 1996 proposal we also said, ``In addition, regionally
significant, federally funded or approved projects usually occur
infrequently in isolated rural areas. Conformity demonstrations for
such areas as required by the existing conformity rule would place the
burden of long-term planning on a few or even a single transportation
project'' (61 FR 36121). Again, allowing isolated rural areas to
shorten their timeframe could alleviate the concern that long-term
planning rests on only a few or even one project, while still ensuring
that a project conforms, because the timeframe must be at least as long
as the year after the completion date of a regionally significant
project.
Finally, an election to shorten the timeframe could not be made
without consultation with the state (and where appropriate, local) air
quality agency, and solicitation of public comment (as discussed above
in section V.D.). Therefore, if in a particular isolated rural area
there is some specific reason that a conformity determination should
cover the entire length of the statewide transportation plan (i.e., at
least 20 years), the state and local air quality agencies and the
public has the opportunity to go on record with their concerns. For
these reasons, EPA believes that it is appropriate to propose and take
comment on extending the option to shorten the conformity timeframe to
isolated rural areas.
Agency that makes elections. As Clean Air Act section 176(c)(7)
does not specifically address isolated rural areas, EPA does not have a
specific statutory provision to rely on for which entity should make an
election to shorten the conformity timeframe in isolated rural areas.
However, there are several reasons why EPA believes that assigning the
ability to elect to shorten the conformity timeframe to the state DOT
makes the most sense. First, although the state DOT is not always the
project sponsor, the state DOT prepares the statewide transportation
plan and the statewide TIP and therefore in this regard, the state DOT
serves a function in an isolated rural area that is similar to an MPO.
Second, the state DOT may be better able to coordinate the consultation
necessary to make an election with the state and local air quality
planning agencies and with the public than any other entity in an
isolated rural area.
Assigning the ability to elect to shorten the conformity timeframe
to the project sponsor may not be as workable. EPA is concerned about
the possibility that in an isolated rural area, there may be more than
one project sponsor, and thus it would be unclear which entity would
have the ability to elect to shorten the timeframe. Other issues could
also arise, such as multiple project sponsors electing to shorten the
timeframe or reverting back to a longer timeframe at any given time.
Such a situation could be confusing to project sponsors, air agencies,
the public, and other agencies typically involved in project-level
conformity determinations.
We are requesting comment on both the state DOT and project sponsor
options, and soliciting input as to whether there are any other
alternatives for consideration. Though commenters can simply express a
preference, providing rationale for a preference is especially useful
to EPA.
F. Specific Analysis Requirements Under a Shortened Timeframe
1. Proposal
EPA is proposing to include most of the necessary regulatory
language for shortening the conformity timeframe within Sec. 93.106,
and is also proposing changes in Sec. Sec. 93.118 and 93.119.\10\
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\10\ Note that the proposals in V.F. would apply to isolated
rural areas as well as metropolitan areas if EPA finalizes Option 1
to allow isolated rural areas to shorten the timeframe of conformity
determinations.
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First, today's proposal would rename Sec. 93.106, which
is currently labeled ``Content of transportation plans,'' as ``Content
of transportation plans and timeframe of conformity determination.''
Second, EPA proposes to amend Sec. 93.106(a)(1) to update
the horizon years that apply when an area shortens the conformity
timeframe. (Section 93.106(a)(1) only applies to serious, severe or
extreme ozone and serious CO nonattainment areas with urbanized
populations greater than 200,000.)
Third, EPA is proposing changes to Sec. Sec. 93.118 and
93.119 to indicate that particular years must be analyzed only if they
are in the conformity timeframe and to include the requirements for any
needed informational analyses.
Areas that use the budget test. In areas that have budgets that
choose to shorten the timeframe, the requirements for demonstrating
consistency with budgets, and analyzing specific years, would be
similar to the existing conformity rule at 40 CFR 93.118(b) and (d).
Under a shortened timeframe, EPA is proposing that consistency with,
and an analysis for, the attainment year would be necessary only if the
attainment year is both within the timeframe of the transportation plan
and conformity determination. In addition, under a shortened timeframe,
EPA is proposing that instead of analyzing the last year of the
transportation plan for the conformity determination, the analysis
would be done for the last year of the shortened timeframe.
EPA is also proposing an additional requirement for areas that do
not have an adequate or approved second maintenance plan budget. In
these areas, EPA is proposing that the conformity determination must be
accompanied by a regional emissions analysis for the last year of the
transportation plan, as well as for any year where the budgets were
exceeded in a previous regional emissions analysis if that year is
later than the shortened conformity timeframe. EPA proposes that these
regional emissions analyses would be done in manner consistent with all
relevant requirements of the transportation conformity regulation
(e.g., 40 CFR 93.110, 93.111, and 93.122). However, these analyses
would be for informational purposes only, and emissions would not have
to meet the
[[Page 24483]]
budgets in these years. (EPA is not proposing these information-only
analysis requirements for areas with an adequate or approved second
maintenance plan, for the reasons described below.)
Areas that use the interim emissions tests. In areas that do not
have budgets and use the interim emissions tests, EPA is proposing that
the requirements for analysis years would be similar to the existing
requirements in Sec. 93.119 that apply under a full transportation
plan-length conformity determination. Under a shortened timeframe, EPA
is proposing that instead of analyzing the last year of the
transportation plan, the analysis would be done for the last year of
the shortened timeframe.
As in our proposal for areas that use the budget test, EPA is also
proposing that the conformity determination must be accompanied by a
regional emissions analysis for the last year of the transportation
plan in areas that use the interim emissions tests. EPA proposes that
this regional emissions analysis would be for informational purposes
only. There are three proposed options for what this informational
regional analysis would consist of in areas that use the interim
emissions tests:
Option X: Emissions for the last year of the
transportation plan would be estimated and be compared to the interim
emissions test(s) that is used in the conformity determination (e.g., a
baseline year test, or the build/no-build test), but emissions would
not have to pass the test.
Option Y: Emissions for the last year of the
transportation plan would be estimated and compared to either interim
emissions test, regardless of which interim emission test(s) are used
for the conformity determination. Emissions would not have to pass the
test.
Option Z: Emissions for the last year of the
transportation plan would be estimated, but no comparison to emissions
from the baseline year or the ``no-build'' scenario would be required.
EPA's proposed regulatory language in Sec. 93.119 could be
finalized under any of these options, and other alternatives can be
submitted during the comment period. EPA also requests information
regarding whether the proposed options would result in useful
information about future emissions for consideration by state and local
agencies and the public. EPA also proposes that this regional emissions
analysis would be done in manner consistent with all relevant
requirements of the transportation conformity regulation (e.g., 40 CFR
93.110, 93.111, and 93.122). Note that there is no proposal for an
informational regional emissions analysis for years where the interim
tests were not met in a previous regional analysis, as there is for
areas that use the budget test that do not have adequate or approved
second maintenance plans.
2. Rationale
General. EPA is proposing these changes to the conformity
regulation because SAFETEA-LU has amended the Clean Air Act to allow
MPOs to shorten their conformity timeframes. EPA is following the
specific requirements of the new Clean Air Act provision in today's
proposal.
EPA's proposed regulatory text for required analysis years for
conformity determinations with shortened timeframes is generally
consistent with current practice. Given that the statute did not
specify the years that must be analyzed in a conformity determination
with a shortened timeframe, EPA assumes the existing conformity
requirements should apply. Therefore, in areas that use the budget
test, a shortened conformity determination would have to include the
attainment year if it is in the timeframe of the conformity
determination, similar to the existing requirement to include the
attainment year if it is in the timeframe of the transportation plan.
In areas that use the interim emissions test, a shortened conformity
determination would include an analysis year no more than five years
into the future, just as full-length conformity determinations do.
In addition, regardless of the test used under a shortened
timeframe, the last year of the conformity determination would need to
be analyzed. This requirement is similar to the existing one to analyze
the last year of the transportation plan. Likewise, under a shortened
timeframe analysis years would be no more than ten years apart, just as
under a full-length conformity determination.
Areas without second maintenance plans that shorten their
conformity timeframe. If the conformity timeframe is shortened in an
area that does not have an adequate or approved second maintenance
plan, EPA proposes that the conformity determination be accompanied by
an informational analysis. EPA's proposals for the regional emissions
analysis for the last year of the transportation plan, and for any year
where the budgets were exceeded in a previous regional emissions
analysis if that year is later than the shortened conformity timeframe,
are also based in the statutory language. Clean Air Act section
176(c)(7)(B) requires that the conformity determination ``be
accompanied by a regional emissions analysis'' for these years. Absent
a definition for ``regional emissions analysis'' in the statute, EPA
assumes that the phrase has its usual meaning in the context of
transportation conformity. Therefore, EPA believes that these analyses
need to be done in a manner consistent with all the relevant
requirements of the conformity regulations.
This same statutory language is the reason EPA proposes that these
analyses do not need to meet the required tests. The statutory language
makes it clear that these emissions analyses ``accompany'' the
conformity determination, and thus are not part of the conformity
determination.
EPA is proposing that areas that use the interim emissions tests
would only have to run an informational analysis for the last year of
the transportation plan, rather than for any years where they did not
pass the tests in previous conformity determination that extend beyond
the shortened timeframe, as would areas that use the budget test. This
result is because Clean Air Act section 176(c)(7)(B) states that these
information-only regional emissions analyses are to be done ``for the
last year of the transportation plan and for any year shown to exceed
emissions budgets by a prior analysis, if such year extends beyond''
the end of the shortened timeframe. Areas subject to the interim
emissions tests for a given pollutant or precursor do not have budgets
for that pollutant or precursor. Therefore, there is no statutory
requirement for these areas to perform an informational regional
emissions analysis for any year other than the last year of the
transportation plan.
EPA requests comment on the three options for what an information-
only regional emissions analysis would consist of in an area that uses
the interim emissions test. EPA believes that any of the options could
be finalized under the proposed regulatory language because the statute
is ambiguous regarding this requirement prior to SIP budgets being
established. The statutory language states that the the regional
emissions analysis that accompanies the conformity determination must
be performed for the last year of the transportation plan, but does not
specify that the interim emissions tests be conducted. The
Congressional report language for this section states, ``Generating
this information will be helpful in ensuring
[[Page 24484]]
that conformity is maintained,'' \11\ but does not include any
direction on how this goal should be met in those areas that use the
interim emissions tests.
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\11\ Joint Explanatory Statement of the Committee of Conference,
``Section 6011, Transportation Conformity,'' p. 1059.
---------------------------------------------------------------------------
EPA believes Option X could meet this goal because using the same
test or tests as the conformity determination, whether it is the
baseline year test, the build/no-build test, or both, would reveal
whether or not the emissions from the last year of the transportation
plan would meet that test or tests. Although the conformity test would
not be required to be met, using the same test as in the conformity
determination for the informational analysis provides similar
information as in the conformity determination and is a format that is
familiar to reviewers. The additional information--emissions in the
baseline year and/or emissions from the no-build scenario--may be
helpful to inform state and local agencies and the public about
emissions trends beyond the conformity determination's timeframe. In
addition, Option X is similar to the requirement Congress included for
the informational analysis in areas that have a budget, in that the
area would use the same test(s) used for the conformity determination
as a comparison.
Option Y, estimating emissions from planned and existing projects
in the last year of the transportation plan and comparing them to the
interim emissions test chosen by the MPO or state DOT/project sponsor,
could also meet the statute's requirement. For example, under this
option, an area could choose to compare emissions in the last year of
the transportation plan to baseline year emissions, even if that area
is using the build/no-build test to determine conformity. Option Y
gives MPOs and state DOTs/project sponsors flexibility, while still
informing state and local agencies and the public.
Option Z, estimating emissions from planned and existing projects
in the last year of the transportation plan, without documenting
whether the baseline year test is passed or performing the no-build
scenario, could also meet the statute's requirement. Having future
emissions projections, without performing an interim emissions test,
may alone provide meaningful information for state and local agencies
on future emissions trends.
EPA could finalize any of these options and will consider all
comments received on these and alternate options, as well as other
information and factors that could inform the final rulemaking.
Areas with second maintenance plans that shorten their conformity
timeframe. EPA is not proposing any information-only analyses in areas
with an adequate or approved second maintenance plan, given Clean Air
Act section 176(c)(7)(C). The statute labels this section, which
applies to areas that have an adequate or approved second maintenance
plan, as ``Exception.'' EPA interprets section 176(c)(7)(C) to mean
that areas with adequate or approved second maintenance plans that
shorten their conformity timeframe do not have to comply with the
requirements of Clean Air Act section 176(c)(7)(A) or (B), and (C) does
not require any informational analyses. Therefore, EPA believes that
areas with a second maintenance plan that shorten their conformity
timeframe do not have to perform a regional emissions analysis for the
last year of their transportation plans, or for a year shown to exceed
budgets by a prior analysis, as required by Clean Air Act section
176(c)(7)(B) for other areas that have shortened their timeframe.
VII. Conformity SIPs
A. Proposal
Today's proposal would modify 40 CFR 51.390 to streamline the
requirements for state conformity SIPs. A conformity SIP is different
from a control strategy SIP or maintenance plan, as a conformity SIP
only includes state conformity procedures and not motor vehicle
emissions budgets or air quality demonstrations.
EPA is proposing to require states to submit conformity SIPs that
address only the following sections of the federal rule that need to be
tailored to a state's individual circumstances:
40 CFR 93.105, which addresses consultation procedures;
40 CFR 93.122(a)(4)(ii), which states that conformity SIPs
must require that written commitments to control measures be obtained
prior to a conformity determination if the control measures are not
included in an MPO's transportation plan and TIP, and that such
commitments be fulfilled; and
40 CFR 93.125(c), which states that conformity SIPs must
require that written commitments to mitigation measures be obtained
prior to a project-level conformity determination, and that project
sponsors comply with such commitments.
Prior to SAFETEA-LU, states were required to address these
provisions as well as all other federal conformity rule provisions in
their conformity SIPs. Most of the sections of the federal rule were
required to be copied verbatim from the federal rule into a state's
conformity SIP, as previously required under 40 CFR 51.390(d).
In addition, EPA is proposing to delete the requirement for states
to submit conformity SIPs to DOT. States would continue to submit
conformity SIPs to EPA, as required under the existing rule. EPA is
also proposing to reorganize the existing conformity SIP regulatory
language to improve clarity and readability. The proposed regulatory
language is re-ordered to more naturally fall into three topics:
Purpose and applicability, conformity implementation plan content, and
timing and approvals. The proposed language retains existing
requirements with appropriate modifications based on the new Clean Air
Act amendment from SAFETEA-LU.
B. Rationale
EPA is primarily proposing these changes to Sec. 51.390 to make
the transportation conformity regulation consistent with the law, which
has been in effect since August 10, 2005. In SAFETEA-LU, Congress
amended the Clean Air Act so that states are no longer required to copy
much of the federal transportation conformity rule into their SIPs.
Instead, Clean Air Act section 176(c)(4)(e) now requires states to
include in their conformity SIPs:
criteria and procedures for consultation required by
subparagraph (D)(i), and enforcement and enforceability (pursuant to
section 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal
Regulations) in accordance with the Administrator's criteria and
procedures for consultation, enforcement, and enforceability.
Subparagraph (D)(i) in Clean Air Act section 176(c)(4) requires EPA
to write regulations that address consultation procedures to be
undertaken by MPOs and DOT with state and local air quality agencies
and state DOTs before making conformity determinations. EPA's
regulations governing consultation are found at 40 CFR 93.105.
Therefore, in effect the statute now requires states to address and
tailor only the three sections of the conformity rule noted above in
their conformity SIPs.
In general, states are no longer required to submit conformity SIP
revisions that address the other sections of the conformity rule,
except for limited cases that are described below. EPA believes that
the new conformity SIP requirements will reduce the administrative
burden for state and local agencies significantly, because the new
requirements will result in fewer required conformity SIP revisions in
most areas.
EPA is proposing to delete the requirement for states to submit
[[Page 24485]]
conformity SIPs to DOT to be consistent with SAFETEA-LU's changes. In
revising the Clean Air Act's previous conformity SIP requirements,
Congress did not retain the previous requirement that ``each State
shall submit to the Administrator and the Secretary of Transportation *
* * a revision to its implementation plan * * *.'' The new statutory
language in Clean Air Act section 176(c)(4)(E) does not include this
previous requirement, and therefore, we are removing this requirement
to reduce state and local air agency processing of their conformity
SIPs. However, EPA does not believe that this proposal will
substantively change DOT's involvement in conformity SIP development.
The proposal does not change the existing conformity rule's requirement
that EPA provide DOT with a 30-day comment period on conformity SIP
revisions.
The reorganizational changes to Sec. 51.390 that are proposed are
for clarity and readability and not related to changes in the law. EPA
is proposing these changes to make this section more user-friendly.
C. How Would This Proposal Impact States?
1. Areas That Never Submitted a Conformity SIP
States that never submitted a conformity SIP would only address the
three provisions noted above in their conformity SIPs according to any
existing conformity SIP deadline (see D. of this section below).
2. Areas That Submitted a Conformity SIP That Was Never Approved
In some cases, states have submitted conformity SIPs to EPA for
approval, but EPA has not yet acted on them. These states could write
their EPA Regional Office and request that EPA approve only the three
provisions that are required to be included in their SIPs and that EPA
take no action on the remainder of the submission. States could also
leave the full conformity SIP pending before EPA for rulemaking action.
However, if EPA approves the full SIP, states could not apply any
subsequent changes that EPA makes to the federal rule without first
revising their state conformity SIP and obtaining EPA's approval.
3. Areas With Approved Conformity SIPs
States with EPA-approved conformity SIPs that decide to eliminate
the provisions that are no longer mandatory would need to revise the
SIP to eliminate those provisions. EPA would have to approve the
changes to a state's conformity SIP through the Federal Register
rulemaking process. Such a SIP revision should not be controversial
because the provisions are no longer required by the Clean Air Act as
amended by SAFETEA-LU. In addition their elimination from a state's
conformity SIP should not change conformity's implementation in
practice since the federal conformity rule would apply for any
provision not addressed in a state SIP. States are encouraged to work
with their EPA Regional Office as early in the process as possible to
ensure the SIP submittal meets all requirements and is fully
approvable.
4. Areas That Submit a Partial Conformity SIP
A state may choose to submit a conformity SIP that addresses only
one or two of the three required sections of the federal rule. In this
situation, EPA can approve the submitted sections. However, the Clean
Air Act as amended by SAFETEA-LU requires states to address all three
sections in their conformity SIP, so a state that addresses only one or
two of the requirements would still have an outstanding requirement.
D. When Are Conformity SIPs Due?
SAFETEA-LU did not create any new deadlines for conformity SIPs.
Any nonattainment or maintenance area that has missed earlier deadlines
to submit conformity SIP revisions (e.g., after previous conformity
rulemakings, or new nonattainment designations) continues to be subject
to these previous deadlines, but only in regard to the three provisions
now required by the Clean Air Act. Two scenarios are described below.
1. Areas With Conformity SIPs That Address Only the Three Required
Provisions
Once a state has an approved conformity SIP that addresses only the
three sections that the Clean Air Act now requires, the state would
need to revise its conformity SIP only if EPA revises one of these
sections of the conformity rule, or the state chooses to revise one of
these three provisions. Any future changes to the federal conformity
rules beyond these three provisions would apply in all states that have
only these three provisions in their approved conformity SIP.
2. Areas That Choose to Either Retain or Submit Additional Sections of
the Conformity Rule
A state with a previously approved conformity SIP may decide to
retain all or some of the federal rule in its SIP or a state without an
approved conformity SIP could choose to submit for EPA approval all or
some of the other sections of the federal rule. In such a case, the
state should be aware that the conformity determinations in the state
continue to be governed by the state's approved conformity SIP. Such a
state would need to revise its conformity SIP when EPA makes changes to
the federal rule in order to have those changes apply in the state. For
more information, please refer to EPA's November 2004 Conformity SIP
Guidance, which is found at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
VIII. Transportation Control Measure Substitutions and Additions
SAFETEA-LU section 6011(d) amended the Clean Air Act by adding a
new section 176(c)(8) that establishes specific criteria and procedures
for replacing TCMs in an existing approved SIP with new TCMs and adding
TCMs to an approved SIP. SAFETEA-LU section 6011(g) directs EPA to
``promulgate revised regulations to implement the changes made by this
section.'' EPA is proposing to revise the definition of a TCM in 40 CFR
93.101 to clarify that TCMs as defined for conformity purposes also
include any TCMs that are incorporated into the SIP through this new
TCM substitution and addition process. However, EPA is not proposing
regulatory text to implement this Clean Air Act amendment. EPA has
determined that revising the transportation conformity regulations is
not necessary to implement the TCM substitution and addition provision.
EPA based its determination that implementing regulations are not
necessary on three factors. First, Clean Air Act section 176(c)(8)
contains sufficient detail to allow the provision to be implemented
without further regulation. This section specifies the requirements for
TCM substitutions and additions. It establishes the procedures for
ensuring that substitute TCMs provide equal or greater emissions
reductions than the TCMs that are being replaced. It also establishes
the process for concurrence on the substitution or addition by the
state air agency and EPA. Finally, it ensures that the state and EPA
maintain up-to-date information on the TCMs in approved SIPs so that
the public is aware of the TCMs that are to be implemented. Regulatory
language to implement this provision would merely duplicate the
language already included in the Clean Air Act.
Second, regulatory changes are needed to address the other Clean
Air
[[Page 24486]]
Act amendments made by SAFETEA-LU (e.g., the frequency of conformity
determinations and the lapse grace period) because the existing
transportation conformity regulation is inconsistent with the revised
Clean Air Act. However, no such inconsistency exists for the TCM
substitution and addition provision because the transportation
conformity regulation has never addressed the substitution or addition
of TCMs to approved SIPs. Therefore, the detailed criteria and
procedures for TCM substitutions and additions contained in Clean Air
Act section 176(c)(8) can be relied on without any conflict with the
regulation.
Third, if EPA were to establish regulations to implement the Clean
Air Act amendment addressing TCM substitution and addition, those
provisions would not be incorporated into the transportation conformity
regulations in 40 CFR part 93. While the TCM substitution and addition
provision appears in Clean Air Act section 176(c) which establishes
conformity requirements, the provision actually establishes a process
by which an area can revise its approved SIP. Therefore, if regulations
were written to implement this provision, they would appear in either
40 CFR part 51 or 52, which govern SIP actions. However, EPA typically
issues guidance rather than regulations for statutory requirements
related to SIPs where the agency concludes that statutory language can
be implemented without regulations. EPA's decision not to propose
regulatory text to implement the TCM substitution and addition
provision is consistent with EPA's past practice for SIP requirements.
EPA and DOT issued joint guidance on February 14, 2006, on the
implementation of all of the Clean Air Act amendments made by SAFETEA-
LU. This guidance clarified EPA and DOT expectations for how TCM
substitutions and additions are to be carried out by state and local
agencies. State and local agencies considering TCM substitutions or
additions should review this guidance and consult with their local EPA,
FHWA and FTA offices. The guidance is available at: http://www.epa.gov/otaq/stateresources/transconf/420b06901.pdf.
Clean Air Act section 176(c)(8) requires that the EPA Administrator
consult and concur on TCM substitutions and additions. However, as has
been done with most other responsibilities related to the approval of
SIP revisions, EPA believes that this authority may be delegated from
the Administrator to the Regional Administrators and in some cases to
other levels of management in the EPA Regional Offices. In the February
2006 joint guidance described above we indicated that EPA intended to
prepare a delegation of authority for these responsibilities that, when
finalized, would enable EPA Regional Administrators to consult and
concur on TCM substitutions and additions. On September 29, 2006, the
EPA Administrator signed the subject delegation of authority
(Delegation of Authority 7-158: Transportation Control Measure
Substitutions and Additions). As of that date, EPA Regional
Administrators have the authority to consult and concur on TCM
substitutions and additions. The delegation of authority allows the
Regional Administrators to further delegate these responsibilities to
the regional air division directors, but no further.
IX. Categorical Hot-spot Findings for Projects in Carbon Monoxide
Nonattainment and Maintenance Areas
A. Background
The conformity rule currently requires a hot-spot analysis to be
completed for all project-level conformity determinations in CO
nonattainment and maintenance areas (40 CFR 93.116 and 93.123(a)). A CO
hot-spot analysis is an estimation of likely future localized pollutant
concentrations and a comparison of those concentrations to the CO
national ambient air quality standards (``standards'') (40 CFR 93.101).
A hot-spot analysis assesses air quality impacts on a scale smaller
than the entire nonattainment or maintenance area, such as a congested
roadway intersection.
The current conformity rule requires that a CO hot-spot analysis
shows that a non-exempt FHWA/FTA project does not cause any new
violations of the CO standards or increase the frequency or severity of
existing violations (40 CFR 93.116(a)). Until a CO attainment
demonstration or maintenance plan is approved, non-exempt FHWA/FTA
projects must also meet the 40 CFR 93.116(b) requirement to eliminate
or reduce the severity and number of localized CO violations in the
area substantially affected by the project. Today's proposal would not
amend these existing requirements.
The type of CO hot-spot analysis varies depending on the type of
project involved. Section 93.123(a)(1) currently requires quantitative
hot-spot analyses for projects of most concern; section 93.123(a)(2)
requires either a quantitative or qualitative hot-spot analysis for all
other projects. Today's proposal would not amend what projects are
covered by these existing requirements.
Hot-spot analyses are also required for certain projects in
PM2.5 and PM10 nonattainment and maintenance
areas. The current conformity rule allows DOT, in consultation with
EPA, to make a ``categorical hot-spot finding'' in PM2.5 and
PM10 nonattainment and maintenance areas if there is
appropriate modeling that shows that a particular category of highway
or transit projects will meet applicable Clean Air Act conformity
requirements without further analysis (40 CFR 93.123(b)(3)). If DOT
makes such a finding, then no further hot-spot analysis to meet 40 CFR
93.116(a) is needed for any project that fits the category addressed by
the finding. A project sponsor would simply reference a categorical
hot-spot finding in the project-level conformity determination to meet
hot-spot analysis requirements. See EPA's March 10, 2006, final rule
for further information (71 FR 12502-12506) on categorical hot-spot
findings in PM2.5 or PM10 areas.
B. Proposal
Today's proposal would extend this current PM provision for
categorical hot-spot findings to CO nonattainment and maintenance
areas. The proposal would allow DOT, in consultation with EPA, to make
categorical hot-spot findings for appropriate cases in CO nonattainment
and maintenance areas if appropriate modeling shows that a type of
highway or transit project does not cause or contribute to a new or
worsened local air quality violation of the CO standards, as required
under 40 CFR 93.116(a).\12\ The regulatory text for today's proposal
can be found in Sec. 93.123(a)(3).
---------------------------------------------------------------------------
\12\ As discussed further below, categorical hot-spot findings
under the proposal could not be used to meet 40 CFR 93.116(b)
requirements in the limited number of CO areas without approved
attainment demonstrations or maintenance plans.
---------------------------------------------------------------------------
Any DOT categorical hot-spot finding would have to be supported by
a credible quantitative modeling demonstration showing that all
potential projects in a category satisfy statutory requirements without
further hot-spot analysis. Such modeling would need to be derived in
consultation with EPA, and consistent with EPA's existing CO
quantitative hot-spot modeling requirements, as described in 40 CFR
93.123(a). Modeling used to support a categorical hot-spot finding
could consider the emissions produced from a category of projects based
on potential project sizes, configurations, and levels of service.
Under the proposed
[[Page 24487]]
regulatory language, modeling could also consider the emissions
produced by a category of projects and the resulting impact on air
quality under different circumstances.
The proposal would not affect the requirement for conformity
determinations to be completed for all non-exempt projects in CO areas.
The modeling on which a categorical finding is based would serve to
fulfill the hot-spot analysis requirements for qualifying projects. The
modeled scenarios used by DOT to make categorical hot-spot findings
would be derived through consultation and participation by EPA.
Existing interagency consultation procedures for project-level
conformity determinations would also be followed (40 CFR 93.105). Any
project-level conformity determination that relied on a categorical
hot-spot finding would also be subject to existing public involvement
requirements, during which commenters could address all appropriate
issues relating to the categorical findings used in the conformity
determination. See D. of this section for further information on how
EPA and DOT would implement the proposal.
C. Rationale
EPA believes it is both appropriate and in compliance with the
Clean Air Act to propose that DOT make categorical hot-spot findings
where modeling shows that such projects will not cause or contribute to
new or worsened air quality violations. As long as modeling shows that
all potential projects in a category meet the current conformity rule's
hot-spot requirements (40 CFR 93.116(a))--either through an analysis of
a category of projects or a hot-spot analysis for a single project--
then certain Clean Air Act conformity requirements are met.
Clean Air Act section 176(c)(1)(B) is the statutory criterion that
must be met by all projects in CO nonattainment and maintenance areas
that are subject to transportation conformity. Section 176(c)(1)(B)
states that federally-supported transportation projects must not
``cause or contribute to any new violation of any standard in any area;
increase the frequency or severity of any existing violation of any
standard in any area; or delay timely attainment of any standard or any
required interim emission reductions or other milestones in any area.''
EPA is not proposing to amend the existing CO hot-spot requirements
in 40 CFR 93.116(a) that ensure areas meet Clean Air Act section
176(c)(1)(B) requirements. Categorical hot-spot findings would simply
allow future information to be taken into account in an expedited
manner, so that further CO hot-spot analyses are not performed on an
individual basis for projects where it is determined to be unnecessary
to meet certain statutory requirements. Making hot-spot findings for
projects on a category basis would reduce the resource burden for
state, regional and local agencies, and provide greater certainty and
stability to the transportation planning process, while still ensuring
that all projects meet Clean Air Act requirements.
As noted above, CO categorical hot-spot findings under today's
proposal could not be used to meet an additional hot-spot requirement
for CO areas without approved attainment demonstrations or maintenance
plans. Clean Air Act section 176(c)(3)(B)(ii) requires projects in
these CO areas to also ``eliminate or reduce the severity and number of
violations of the carbon monoxide standards in the area substantially
affected by the project.'' This criterion is stipulated by 40 CFR
93.109(f)(1) and 93.116(b) for FHWA/FTA projects in these CO areas. EPA
believes that this criterion is more appropriately met by evaluating
the unique circumstances of an individual project, rather than based on
a broader analysis of a category of projects. Since most CO areas
already have approved attainment demonstrations or maintenance plans,
there should be limited practical impact of this aspect of today's
proposal.
Whatever the case, EPA believes that the proposal would provide an
opportunity to streamline hot-spot analyses in all CO areas. Those
areas that are required to meet the additional hot-spot criterion would
be able to take advantage of any categorical finding that applies for
meeting 40 CFR 93.116(a) requirements.
Finally, today's proposal also addresses a comment that EPA
received during a previous rulemaking. In the March 10, 2006, final
rule, one commenter believed that the flexibility for FHWA and FTA to
make PM2.5 and PM10 categorical hot-spot findings
should be extended to CO nonattainment and maintenance areas (71 FR
12504). EPA could not take final action on such an expansion in that
rulemaking since no proposal had been provided for public comment.
D. General Implementation for Categorical Hot-spot Findings
If finalized, EPA would implement a CO categorical hot-spot finding
provision similar to the implementation of PM2.5 and
PM10 categorical hot-spot findings, as described in the
March 10, 2006, final rule. A project-level conformity determination
would continue to be required for all non-exempt FHWA/FTA projects in
CO areas. Modeling used to support a categorical hot-spot finding would
be based on appropriate motor vehicle emissions factor models,
dispersion models, and EPA's existing requirements for quantitative CO
hot-spot modeling as specified in 40 CFR 93.123(a)(1) (40 CFR part 51,
Appendix W (Guideline on Air Quality Models)).
In the March 2006 final rule (71 FR 12505), EPA and DOT described
the general process for categorical hot-spot findings to be as follows:
FHWA and/or FTA, as applicable, would develop modeling,
analyses, and documentation to support the categorical hot-spot
finding. This would be done with early and comprehensive consultation
and participation with EPA.
FHWA and/or FTA would provide EPA an opportunity to review
and comment on the complete categorical hot-spot finding documentation.
Any comments would need to be resolved in a manner acceptable to EPA
prior to issuance of the categorical hot-spot finding. Consultation
with EPA on issue resolution would be documented.
FHWA and/or FTA would make the final categorical hot-spot
finding in a memorandum or letter, which would be posted on EPA's and
DOT's respective conformity websites.
Subsequently, transportation projects that meet the criteria set
forth in the categorical hot-spot finding would reference that finding
in their project-level conformity determination, which would be subject
to interagency consultation and the public involvement requirements of
the National Environmental Policy Act (NEPA) process and the conformity
rule (40 CFR 93.105(e)). The existing consultation and public
involvement processes would be used to consider the categorical hot-
spot finding for a particular project.
X. Deletion of Regulation 40 CFR 93.109(e)(2)(v)
EPA is proposing to eliminate a provision of the transportation
conformity rule that was vacated by the U.S. Court of Appeals for the
District of Columbia Circuit (Environmental Defense v. EPA, et al.,
D.C. Cir. No. 04-1291) on October 20, 2006. This provision, 40 CFR
93.109(e)(2)(v), allowed 8-hour ozone areas to use the interim
emissions test(s) for conformity instead of 1-hour budgets where the
interim emissions test(s) was
[[Page 24488]]
determined to be more appropriate to meet Clean Air Act requirements.
The court vacated this provision and remanded it to EPA.
As discussed in the July 1, 2004 preamble (69 FR 40025), EPA
anticipated that this provision would be used infrequently but that
there would be some cases where using the interim emissions test(s)
would be more appropriate to meet Clean Air Act requirements. Because
of the court's decision on this provision, areas can no longer rely on
Sec. 93.109(e)(2)(v) to use an interim emissions test(s) instead of
using 1-hour ozone budget(s). Such areas must now use all relevant
existing 1-hour ozone budgets in future conformity determinations until
8-hour ozone emissions budgets are found adequate or are approved for a
given analysis year.
EPA anticipates minimal impact from the court's decision since most
8-hour ozone areas are already either using their 1-hour or 8-hour
ozone SIP budgets. EPA, in cooperation with DOT, is currently providing
assistance to the limited number of areas affected by the recent court
decision. For additional assistance, please contact your EPA Regional
Office.
XI. Miscellaneous Revisions
A. Minor Revision to Sec. 93.102(b)(4)
EPA is proposing a minor revision to Sec. 93.102(b)(4), which
addresses the period of time that transportation conformity applies in
maintenance areas. This is the period of time during which the
requirements of the conformity rule apply in an area, and not the
timeframe any one conformity determination examines, as discussed in
Section VI., ``Timeframes for Conformity Determinations.''
Section 93.102(b)(4) currently states that conformity applies in
``maintenance areas for 20 years from the date EPA approves the area's
request under section 107(d) of the CAA for redesignation to
attainment, unless the applicable implementation plan specifies that
the provisions of this subpart shall apply for more than 20 years.'' We
are proposing to clarify this section to ensure that conformity would
apply in maintenance areas through the last year of their approved
Clean Air Act section 175A(b) maintenance plan, unless the applicable
implementation plan specifies that conformity would continue to apply
beyond the end of the area's approved second 10-year maintenance plan.
EPA is only proposing to clarify Sec. 93.102(b)(4) because the
current regulation may be read to not account for the situation where a
maintenance area submits a second maintenance plan that establishes a
budget for a year more than 20 years beyond the date of EPA's approval
of the area's redesignation request and first maintenance plan.
For example, suppose an area's redesignation request and first
maintenance plan are approved in 2006 and the maintenance plan
establishes budgets for 2016. This area submits a second maintenance
plan that establishes budgets for 2030. Under the current regulatory
language, conformity applies in this area ``for 20 years from the date
EPA approves'' the area's redesignation to maintenance, i.e., until
2026, despite the fact that the area would have budgets for 2030. This
result would not be consistent with the Clean Air Act, which requires
that transportation activities conform to the SIP. EPA's proposed
change to clarify that conformity applies through the last year of the
approved second maintenance plan would ensure that conformity applies
throughout the time period covered by the SIP budgets. In this example,
conformity would apply until 2030.
This proposed revision should not change the implementation of
conformity requirements in maintenance areas. The Clean Air Act
requires that maintenance plans cover a period of 20 years from the
year that EPA approves the area's redesignation request. With this
proposed change, conformity would continue to apply in maintenance
areas for at least 20 years beyond the date of EPA's redesignation of
an area to maintenance. This clarification is consistent with EPA's
intention as expressed in the preamble to the 1993 final transportation
conformity rule, which stated, ``If the maintenance plan establishes
emissions budgets for more than twenty years, the area would be
required to show conformity to that maintenance plan for more than
twenty years'' (58 FR 62206).
B. Technical Corrections to Sec. Sec. 93.102(b)(2)(v) and
93.119(f)(10)
EPA is proposing corrections to Sec. Sec. 93.102(b)(2)(v) and
93.119(f)(10) to change ``sulfur oxides'' to ``sulfur dioxide'' and
``SOX'' to ``SO2.'' In the May 6, 2005,
transportation conformity final rule (70 FR 24279), EPA finalized
requirements for PM2.5 precursors. In that final rulemaking,
we included ``sulfur oxides'' as one of the precursors and referred to
sulfur oxides as SOX. Since that rulemaking was finalized,
EPA has proposed the PM2.5 implementation rule (70 FR 65984)
and indicated that sulfur dioxide (SO2) would be regulated
as a PM2.5 precursor rather than all sulfur oxides. We are
proposing these corrections to the transportation conformity rule in
order to make it consistent with EPA's broader PM2.5
implementation strategy. This proposed change would not impact current
conformity practice.
C. Revisions to ``Table 2--Exempt Projects'' in Sec. 93.126
EPA is proposing several minor clarifications to ``Table 2--Exempt
Projects'' in Sec. 93.126, under the category of ``Safety.''
Specifically, EPA is proposing to update the following terms:
``Hazard elimination program'' would become ``Projects
that correct, improve, or eliminate a hazardous location or feature;''
``Safety improvement program'' would become ``Highway
Safety Improvement Program implementation;'' and
``Pavement marking demonstration'' would become ``Pavement
marking.''
EPA is proposing to update these terms to make them consistent with
the terms in 23 U.S.C. 148, which has been amended by SAFETEA-LU
section 1401. The revisions EPA is proposing today in Table 2 of the
conformity regulation would not change the types of safety projects
that are exempt from transportation conformity requirements. These
revisions would only update the terminology to be consistent with the
changes made by SAFETEA-LU to 23 U.S.C. 148.
In section 1401, SAFETEA-LU removed the hazard elimination program
as a stand-alone program previously under 23 U.S.C. 152. Projects that
were covered by the hazard elimination program are now covered under
the phrase, ``Projects that correct, improve, or eliminate a hazardous
road location or feature,'' as included in 23 U.S.C. 148. Therefore,
EPA proposes to update this term in Table 2 of the conformity rule.
SAFETEA-LU also established the ``Highway Safety Improvement
Program'' in title 23 U.S.C. 148, which includes the types of projects
that were previously covered in the ``Safety Improvement Program.''
Therefore, EPA is proposing to change this term within Table 2 as well.
SAFETEA-LU defines ``Highway Safety Improvement Project'' as ``a
project described in the State strategic highway safety plan that--(i)
Corrects or improves a hazardous road location or feature; or (ii)
addresses a highway safety problem.'' Given that the Highway Safety
Improvement Program is substantively the same as the prior Safety
Improvement Program, EPA proposes that projects defined in 23
[[Page 24489]]
U.S.C. 148 under the Highway Safety Improvement Program would be exempt
from transportation conformity.
Finally, ``pavement marking demonstration'' is no longer a
demonstration program and the reference is out of date. However, those
types of projects will continue to be exempt under the updated phrase,
``Pavement marking.'' Therefore, EPA proposes changing this term in
Table 2 to be consistent with SAFETEA-LU's term.
D. Definitions
EPA is proposing revisions to the definitions of ``metropolitan
planning organization (MPO)'' and ``transportation improvement program
(TIP)'' to reflect the definitions in SAFETEA-LU sections 3005(a) and
6001(a). Pursuant to SAFETEA-LU, the term ``MPO'' now refers to the
policy board for the organization that is designated under 23 U.S.C.
134(d) and 49 U.S.C. 5303(d). EPA is proposing to revise the
definitions of these terms in Sec. 93.101 to be consistent with the
new statutory definitions. These proposed changes would have no
practical impact in conformity implementation.
E. Minor Clarifications for Hot-Spot Analyses
EPA is proposing two minor clarifications to the conformity rule's
hot-spot analysis provisions. Both of these proposed changes are
intended to improve conformity rule implementation in light of new
statutory requirements. The proposed changes would not substantively
change current requirements.
First, EPA is proposing to make minor changes to Sec. Sec.
93.109(l)(2)(i) and 93.116(a) to ensure that CO, PM10, and
PM2.5 hot-spot analyses will continue to consider a
project's air quality impact over the entire timeframe of the
transportation plan or long-range statewide transportation plan, as
appropriate. EPA's minor change to Sec. 93.116(a) will ensure that
hot-spot analyses cover the timeframe of the transportation plan in
metropolitan and donut nonattainment and maintenance areas. And the
proposed addition in Sec. 93.109(l)(2)(i) will ensure that hot-spot
analyses in isolated rural areas will also examine a project's air
quality impact over the timeframe of the long-range statewide
transportation plan.
As discussed in Section VI., EPA is proposing several options for
shortening the timeframe addressed by transportation plan and TIP
conformity determinations, and in some cases, regional emissions
analyses. These changes are proposed in accordance with new Clean Air
Act provisions from SAFETEA-LU. The proposed changes to Sec. Sec.
93.116(a) and 93.109(l)(2)(i) will ensure that project-level hot-spot
analyses examine the appropriate time period, even if the timeframe of
the long-range transportation plan or TIP conformity determination or
regional emissions analysis is shortened. The SAFETEA-LU amendments
allowing an election to shorten the timeframe covered by conformity
determinations apply only to transportation plan and TIP conformity
determinations, not project-level conformity determinations.
Second, EPA is proposing a technical clarification to Sec.
93.123(b)(1)(i) to address some confusion in the field since our March
10, 2006, final rule (71 FR 12468). Section 93.123(b)(1)(i) of the
current rule requires PM2.5 or PM10 hot-spot
analyses to be completed for ``New or expanded highway projects that
have a significant number of or significant increase in diesel
vehicles;* * *'' EPA is proposing to clarify this provision as ``New
highway projects that have a significant number of diesel vehicles, and
expanded projects that have a significant increase in the number of
diesel vehicles.''
Since the March 2006 final rule was promulgated, EPA has received
several questions regarding what types of new and expanded highway
projects are covered by Sec. 93.123(b)(1)(i). For example, some state
and local transportation agencies have asked how the current rule's
reference to a ``significant increase in diesel vehicles'' applies to
new highway projects. Although DOT and EPA have answered these and
other questions,\13\ clarifying this provision of the conformity rule
will assist planners as they implement the rule in the future. Again,
today's proposal does not change the type of new or expanded highway
projects that would require PM2.5 or PM10 hot-
spot analyses for transportation conformity purposes; we are simply
clarifying the current provision through a grammatical change.
---------------------------------------------------------------------------
\13\ Questions and answers for PM2.5 and
PM10 hot-spot analysis requirements can be found at
FHWA's Web site: http://www.fhwa.dot.gov/environment/conformity/pm25faqs.htm.
---------------------------------------------------------------------------
F. Minor Revision for Terms Used to Describe Transportation Plan
Revisions
EPA is also proposing a minor revision to how Sec. Sec.
93.104(b)(2) and 93.105(c)(1)(v) describe transportation plan changes
that require conformity determinations, but are not comprehensive
transportation plan updates. EPA is proposing to change references for
transportation plan ``revision(s)'' to be transportation plan
``amendment(s),'' in order to be consistent with the proposed planning
definitions in DOT's February 14, 2007, final transportation planning
regulations (72 FR 7224). Today's proposed changes would also provide
consistency between how mid-cycle transportation plan and TIP changes
are currently described in the conformity rule. Section 93.104(c)(2)
currently requires conformity determinations for a TIP ``amendment,''
rather than a ``revision.'' The proposal would not change the
substantive requirements for when a conformity determination is
required for transportation plan changes. In addition, the minor
wording change to Sec. 93.105(c)(1)(v) would not require a conformity
SIP revision.
G. Minor Revision to Reference for Public Consultation Provision
EPA is proposing to update one of the references in Sec. 93.105(e)
of the conformity rule to be consistent with DOT's transportation
planning regulations. Section 93.105(e) describes the procedures for
consulting with the general public on conformity determinations. This
provision currently refers to 23 CFR 450.316(b) of DOT's transportation
planning regulations, which describes how public involvement occurs
during the development of transportation plans and TIPs.
EPA is proposing to change the reference in Sec. 93.105(e) to be
23 CFR 450.316(a), so that the conformity rule is consistent with DOT's
planning regulations. In its February 14, 2007, final rule (72 FR
7224), DOT reorganized 23 CFR 450.316 to reflect the new SAFETEA-LU
statute. DOT moved the public consultation procedures that EPA has
historically relied upon in the conformity rule from 23 CFR 450.316(b)
to 23 CFR 450.316(a). Today's proposal would simply update the
conformity rule to reflect this change in the planning regulations.
Today's proposal would not change the substantive requirements for
the public consultation requirements for conformity determinations. In
addition, the proposal would not require a state to revise its
conformity SIP, since the proposal involves an administrative change to
one reference in DOT's regulations. EPA has not required conformity SIP
revisions for similar reference changes in the past; the public
participation requirements in existing approved conformity SIPs can be
implemented as intended even if they do not reflect the most current
citation in DOT's regulations.
[[Page 24490]]
XII. 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
Transportation conformity determinations are required under Clean
Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally
supported highway and transit project activities are consistent with
(``conform to'') the purpose of the SIP. Conformity to the purpose of
the SIP means that transportation activities will not cause or
contribute to new air quality violations, worsen existing violations,
or delay timely attainment of the relevant air quality standards.
Transportation conformity applies under EPA's conformity regulations at
40 CFR 51.390 and part 93 to areas that are designated nonattainment
and those redesignated to attainment after 1990 (``maintenance areas''
with SIPs developed under Clean Air Act section 175A) for
transportation-source criteria pollutants. The Clean Air Act gives EPA
the statutory authority to establish the criteria and procedures for
determining whether transportation activities conform to the SIP.
This action does not impose any new information collection burden
or any new information collection requirements. However, the Office of
Management and Budget has previously approved the information
collection requirements under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The information collection requirements of
EPA's existing transportation conformity rule and the proposed
revisions in today's action are addressed by two information collection
requests (ICRs). Requirements for carbon monoxide, PM10,
nitrogen dioxide, and 1-hour ozone nonattainment and maintenance areas
are covered under the DOT ICR entitled, ``Metropolitan and Statewide
Transportation Planning,'' with the OMB control number of 2132-0529.
Requirements related to PM2.5 and 8-hour ozone nonattainment
and maintenance areas are covered by the EPA ICR entitled,
``Transportation Conformity Determinations for Federally Funded and
Approved Transportation Plans, Programs and Projects Under the New 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards,'' with OMB control number 2060-0561, EPA ICR number 2130.02.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating,
verifying, processing, maintaining, disclosing, and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
An agency may not collect information, and a person is not required
to respond to an agency's request for information unless it has a
currently valid OMB control number. 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 today's 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
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposal itself does not contain a
federal mandate that may result in expenditures of $100 million or more
by state, local, and tribal governments, in the aggregate, or the
private sector in any one year. The primary purpose of this proposal is
to amend the conformity rule to be
[[Page 24491]]
consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU.
The Clean Air Act amendments made by SAFETEA-LU were intended to reduce
the burden of demonstrating conformity in designated nonattainment and
maintenance areas subject to conformity requirements. Thus, although
this proposal explains how to implement these Clean Air Act amendments,
it merely implements already established law that imposes conformity
requirements and does not itself impose requirements that may result in
expenditures of $100 million or more in any year. Thus, today's
proposal is not subject to the requirements of sections 202 and 205 of
the UMRA and EPA has not prepared a statement with respect to budgetary
impacts.
EPA has determined that this rule 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. Additionally, this proposal explains how
to implement Clean Air Act requirements, as such it merely implements
already established law that imposes conformity requirements and does
not itself impose requirements.
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
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and the Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes.''
Today's proposed amendments to the conformity rule do not
significantly or uniquely affect the communities of Indian tribal
governments, as the Clean Air Act requires transportation conformity to
apply in any area that is designated nonattainment or maintenance by
EPA. This proposal would amend the conformity rule to be consistent
with Clean Air Act section 176(c) as amended by SAFETEA-LU. The Clean
Air Act amendments made by SAFETEA-LU affect nonattainment and
maintenance areas subject to conformity requirements. This proposed
rule does not have tribal implcations, as specified in Executive Order
13175. Accordingly, Executive Order 13175 does not apply to this rule.
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 That Significantly Affect Energy
Supply, Distribution or Use
This proposal is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this proposal is not likely
to have any significant adverse effects on energy supply.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 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.
List of Subjects in 40 CFR Parts 51 and 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.
[[Page 24492]]
Dated: April 18, 2007.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, 40 CFR parts 51 and 93 are
proposed to be amended as follows:
PART 51--[AMENDED]
1. An authority citation for subpart T of part 51 is added to read
as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart T--[Amended]
2. Section 51.390 is revised to read as follows:
Sec. 51.390 Implementation plan revision.
(a) Purpose and applicability. The federal conformity rules under
part 93, subpart A, of this chapter, in addition to any existing
applicable state requirements, establish the conformity criteria and
procedures necessary to meet the requirements of Clean Air Act section
176(c) until such time as EPA approves the conformity implementation
plan revision required by this subpart. A state with an area subject to
this subpart and part 93, subpart A, of this chapter must submit to EPA
a revision to its implementation plan which contains criteria and
procedures for DOT, MPOs and other state or local agencies to assess
the conformity of transportation plans, programs, and projects,
consistent with this subpart and part 93, subpart A, of this chapter.
The federal conformity regulations contained in part 93, subpart A, of
this chapter would continue to apply for the portion of the
requirements that the state did not include in its conformity
implementation plan and the portion, if any, of the state's conformity
provisions that is not approved by EPA. In addition, any previously
applicable implementation plan conformity requirements remain
enforceable until the state submits a revision to its applicable
implementation plan to specifically remove them and that revision is
approved by EPA.
(b) Conformity implementation plan content. To satisfy the
requirements of Clean Air Act section 176(c)(4)(E), the implementation
plan revision required by this section must include the following three
requirements of part 93, subpart A, of this chapter: Sec. Sec. 93.105,
93.122(a)(4)(ii), and 93.125(c). A state may elect to include any other
provisions of part 93, subpart A. If the provisions of the following
sections of part 93, subpart A, of this chapter are included, such
provisions must be included in verbatim form, except insofar as needed
to clarify or to give effect to a stated intent in the revision to
establish criteria and procedures more stringent than the requirements
stated in this chapter: Sec. Sec. 93.101, 93.102, 93.103, 93.104,
93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114, 93.115, 93.116,
93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and 93.127. A state's
conformity provisions may contain criteria and procedures more
stringent than the requirements described in this subpart and part 93,
subpart A, of this chapter only if the state's conformity provisions
apply equally to non-federal as well as federal entities.
(c) Timing and approval. A state must submit this revision to EPA
by November 25, 1994 or within 12 months of an area's redesignation
from attainment to nonattainment, if the state has not previously
submitted such a revision. The state must also revise its conformity
implementation plan within 12 months of the date of publication of any
final amendments to Sec. Sec. 93.105, 93.122(a)(4)(ii), and 93.125(c)
of this chapter, as appropriate. Any other portions of part 93, subpart
A, of this chapter that the state has included in its conformity
implementation plan and EPA has approved must be revised in the state's
implementation plan and submitted to EPA within 12 months of the date
of publication of any final amendments to such sections. EPA will
provide DOT with a 30-day comment period before taking action to
approve or disapprove the submission. In order for EPA to approve the
implementation plan revision submitted to EPA under this subpart, the
plan revision must address and give full legal effect to the following
three requirements of part 93, subpart A: Sec. Sec. 93.105,
93.122(a)(4)(ii), and 93.125(c) of this chapter. Any other provisions
that are incorporated into the conformity implementation plan must also
be done in a manner that gives them full legal effect. Following EPA
approval of the state conformity provisions (or a portion thereof) in a
revision to the state's conformity implementation plan, conformity
determinations will be governed by the approved (or approved portion of
the) state criteria and procedures as well as any applicable portions
of the federal conformity rules that are not addressed by the approved
conformity SIP.
PART 93--[AMENDED]
3. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
4. Section 93.101 is amended by:
a. Revising the definitions for ``Metropolitan planning
organization (MPO)'' and ``Transportation improvement program (TIP)'';
and
b. Revising the first sentence of the definition for
``Transportation control measure (TCM)''.
The revisions read as follows:
Sec. 93.101 Definitions.
* * * * *
Metropolitan planning organization (MPO) means the policy board of
an organization created as a result of the designation process in 23
U.S.C. 134(d).
* * * * *
Transportation control measure (TCM) is any measure that is
specifically identified and committed to in the applicable
implementation plan, including a substitute or additional TCM that is
incorporated into the applicable SIP through the process established in
CAA section 176(c)(8), that is either one of the types listed in CAA
section 108, or any other measure for the purpose of reducing emissions
or concentrations of air pollutants from transportation sources by
reducing vehicle use or changing traffic flow or congestion conditions.
* * *
Transportation improvement program (TIP) means a transportation
improvement program developed by a metropolitan planning organization
under 23 U.S.C. 134(j).
* * * * *
Sec. 93.102 [Amended]
5. Section 93.102 is amended as follows:
a. In paragraph (b)(2)(v), revising ``sulfur oxides
(SOx)'' to read ``sulfur dioxide (SO2)''; and
b. In paragraph (b)(4), revising ``for 20 years from the date EPA
approves the area's request under section 107(d) of the CAA for
redesignation to attainment'' to read ``through the last year of a
maintenance area's approved CAA section 175A(b) maintenance plan''.
6. Section 93.104 is amended as follows:
a. By revising paragraphs (b)(2), (b)(3), and (c)(3);
b. By revising paragraph (e) introductory text; and
c. By adding paragraph (f).
Sec. 93.104 Frequency of conformity determinations.
* * * * *
(b) * * *
(1) * * *
(2) All transportation plan amendments must be found to conform
before the transportation plan amendments are approved by the MPO or
accepted by DOT, unless the amendment merely adds or deletes
[[Page 24493]]
exempt projects listed in Sec. 93.126 or Sec. 93.127. The conformity
determination must be based on the transportation plan and the
amendment taken as a whole.
(3) The MPO and DOT must determine the conformity of the
transportation plan (including a new regional emissions analysis) no
less frequently than every four years. If more than four years elapse
after DOT's conformity determination without the MPO and DOT
determining conformity of the transportation plan, a 12-month grace
period will be implemented as described in paragraph (f) of this
section. At the end of this 12-month grace period, the existing
conformity determination will lapse.
(c) * * *
(3) The MPO and DOT must determine the conformity of the TIP
(including a new regional emissions analysis) no less frequently than
every four years. If more than four years elapse after DOT's conformity
determination without the MPO and DOT determining conformity of the
TIP, a 12-month grace period will be implemented as described in
paragraph (f) of this section. At the end of this 12-month grace
period, the existing conformity determination will lapse.
* * * * *
(e) Triggers for transportation plan and TIP conformity
determinations. Conformity of existing transportation plans and TIPs
must be redetermined within two years of the following, or after a 12-
month grace period (as described in paragraph (f) of this section) the
existing conformity determination will lapse, and no new project-level
conformity determinations may be made until conformity of the
transportation plan and TIP has been determined by the MPO and DOT:
* * * * *
(f) Lapse grace period. During the 12-month grace period referenced
in paragraphs (b)(3), (c)(3), and (e) of this section, a project may be
found to conform according to the requirements of this part if:
(1) The project is included in the currently conforming
transportation plan and TIP (or regional emissions analysis); or
(2) The project is included in the most recent conforming
transportation plan and TIP (or regional emissions analysis).
Sec. 93.105 [Amended]
7. Section 93.105 is amended by removing ``revisions or'' in
paragraph (c)(1)(v), and by revising the reference ``23 CFR
450.316(b)'' in paragraph (e) to read as ``23 CFR 450.316(a)''.
8. Section 93.106 is amended as follows:
a. By revising the section heading;
b. By revising paragraphs (a)(1)(iii) and (iv);
c. By adding new paragraph (a)(v);
d. By redesignating paragraph (d) as paragraph (e); and
e. By adding new paragraph (d).
Sec. 93.106 Content of transportation plans and timeframe of
conformity determinations.
(a) * * *
(1) * * *
(iii) The attainment year must be a horizon year if it is in the
timeframe of the transportation plan and conformity determination;
(iv) The last year of the transportation plan's forecast period
must be a horizon year; and
(v) If the timeframe of the conformity determination has been
shortened under paragraph (d) of this section, the last year of the
timeframe of the conformity determination must be a horizon year.
* * * * *
(d) Timeframe of conformity determination. (1) Unless an election
is made under paragraph (d)(2) or (d)(3) of this section, the timeframe
of the conformity determination must be through the last year of the
transportation plan's forecast period.
(2) For areas that do not have an adequate or approved CAA section
175A(b) maintenance plan, the MPO may elect to shorten the timeframe of
the transportation plan and TIP conformity determination, after
consultation with state and local air quality agencies, solicitation of
public comments, and consideration of such comments.
(i) The shortened timeframe of the conformity determination must be
the longest of the following:
(A) The tenth year of the transportation plan;
(B) The latest year in the submitted or applicable implementation
plan that contains an adequate or approved motor vehicle emissions
budget(s); or
(C) The year after the completion date of a regionally significant
project if the project is included in the TIP or the project requires
approval before the subsequent conformity determination.
(ii) The conformity determination must be accompanied by a regional
emissions analysis (for informational purposes only) for the last year
of the transportation plan and for any year shown to exceed motor
vehicle emissions budgets in a prior regional emissions analysis, if
such a year extends beyond the timeframe of the conformity
determination.
(3) For areas that have an adequate or approved CAA section 175A(b)
maintenance plan, the MPO may elect to shorten the timeframe of the
conformity determination to extend through the last year of such
maintenance plan after consultation with state and local air quality
agencies, solicitation of public comments, and consideration of such
comments.
(4) Any election made by an MPO under paragraphs (d)(2) or (d)(3)
of this section shall continue in effect until the MPO elects
otherwise, after consultation with state and local air quality
agencies, solicitation of public comments, and consideration of such
comments.
* * * * *
Sec. 93.109 [Amended]
9. Section 93.109 is amended as follows:
a. By removing ``, subject to the exception in paragraph
(e)(2)(v)'' in the introductory text of paragraph (e)(2);
b. By removing paragraph (e)(2)(v); and
c. By revising in paragraph (l)(2)(i) ``Sec. Sec. 93.118 and
93.119'' to read ``Sec. Sec. 93.106(d), 93.116, 93.118, and 93.119''
and by adding to the end of this same paragraph, ``When the
requirements of Sec. 93.106(d) apply to isolated rural nonattainment
and maintenance areas, references to ``MPO'' should be taken to mean
the state department of transportation.''
10. Section 93.114 is amended by revising the introductory text to
read as follows:
Sec. 93.114 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval, or a project
must meet the requirements in Sec. 93.104(f) during the 12-month lapse
grace period.
* * * * *
11. Section 93.115 is amended by revising the section heading and
adding a new paragraph (e) to read as follows:
Sec. 93.115 Criteria and procedures: Projects from a transportation
plan and TIP.
* * * * *
(e) Notwithstanding the requirements of paragraphs (a), (b), and
(c) of this section, a project must meet the requirements of Sec.
93.104(f) during the 12-month lapse grace period.
Sec. 93.116 [Amended]
12. Section 93.116 is amended by removing in paragraph (a) ``(or
regional emissions analysis)''.
13. Section 93.118 is amended as follows:
[[Page 24494]]
a. By revising paragraph (b) introductory text;
b. By revising the first sentence in paragraph (d)(2); and
c. By adding new paragraph (d)(3) to read as follows:
Sec. 93.118 Criteria and procedures: Motor vehicle emissions budget.
* * * * *
(b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes motor vehicle emissions
budget(s), for the attainment year (if it is within the timeframe of
the transportation plan and conformity determination), for the last
year of the timeframe of the conformity determination (as described
under Sec. 93.106(d)), and for any intermediate years within the
timeframe of the conformity determination as necessary so that the
years for which consistency is demonstrated are no more than ten years
apart, as follows:
* * * * *
(d) * * *
(2) The regional emissions analysis may be performed for any years
in the timeframe of the conformity determination (as described under
Sec. 93.106(d)) provided they are not more than ten years apart and
provided the analysis is performed for the attainment year (if it is in
the timeframe of the transportation plan and conformity determination)
and the last year of the timeframe of the conformity determination. * *
*
(3) When the timeframe of the conformity determination is shortened
under Sec. 93.106(d)(2), the conformity determination must be
accompanied by a regional emissions analysis (for informational
purposes only) for the last year of the transportation plan, and for
any year shown to exceed motor vehicle emissions budgets in a prior
regional emissions analysis (if such a year extends beyond the
timeframe of the conformity determination).
* * * * *
14. Section 93.119 is amended to read as follows:
a. In paragraph (f)(10), by revising ``SOX'' to read
``SO2'';
b. By revising the last sentence in paragraph (g)(1); and
c. By adding new paragraph (g)(3).
Sec. 93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
* * * * *
(g) * * *
(1) * * * The last year of the timeframe of the conformity
determination (as described under Sec. 93.106(d)) must also be an
analysis year.
* * * * *
(3) When the timeframe of the conformity determination is shortened
under Sec. 93.106(d)(2), the conformity determination must be
accompanied by a regional emissions analysis (for informational
purposes only) for the last year of the transportation plan.
* * * * *
15. Section 93.120 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 93.120 Consequences of control strategy implementation plan
failures.
(a) * * *
(1) * * *
(2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, only projects in the
currently conforming TIP or that meet the requirements of Sec.
93.104(f) during the 12-month lapse grace period may be found to
conform. This means that beginning on the effective date of a
disapproval without a protective finding, no transportation plan, TIP,
or project not in the currently conforming TIP or that meets the
requirements of Sec. 93.104(f) during the 12-month lapse grace period
may be found to conform until another control strategy implementation
plan revision fulfilling the same CAA requirements is submitted, EPA
finds its motor vehicle emissions budget(s) adequate pursuant to Sec.
93.118 or approves the submission, and conformity to the implementation
plan revision is determined.
16. Section 93.121 is amended by revising paragraphs (a)(1) and (2)
to read as follows:
Sec. 93.121 Requirements for adoption or approval of projects by
other recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
(a) * * *
(1) The project comes from the currently conforming transportation
plan and TIP (or meets the requirements of Sec. 93.104(f) during the
12-month lapse grace period), and the project's design concept and
scope have not changed significantly from those that were included in
the regional emissions analysis for that transportation plan and TIP;
(2) The project is included in the regional emissions analysis for
the currently conforming transportation plan and TIP conformity
determination (or meets the requirements of Sec. 93.104(f) during the
12-month lapse grace period), even if the project is not strictly
included in the transportation plan or TIP for the purpose of MPO
project selection or endorsement, and the project's design concept and
scope have not changed significantly from those that were included in
the regional emissions analysis; or
* * * * *
17. Section 93.123 is amended by adding paragraph (a)(3) and
revising paragraph (b)(1)(i) to read as follows:
Sec. 93.123 Procedures for determining localized CO, PM10,
and PM2.5 concentrations (hot-spot analysis).
(a) * * *
(3) DOT, in consultation with EPA, may also choose to make a
categorical hot-spot finding that Sec. 93.116(a) is met without
further hot-spot analysis for any project described in paragraphs
(a)(1) and (a)(2) of this section based on appropriate modeling. DOT,
in consultation with EPA, may also consider the current air quality
circumstances of a given CO nonattainment or maintenance area in
categorical hot-spot findings for applicable FHWA or FTA projects.
(b) * * *
(1) * * *
(i) New highway projects that have a significant number of diesel
vehicles, and expanded highway projects that have a significant
increase in the number of diesel vehicles;
* * * * *
Sec. 93.126 [Amended]
18. Section 93.126, Table 2 is amended by revising ``Hazard
elimination program'' to read ``Projects that correct, improve, or
eliminate a hazardous location or feature'', ``Safety improvement
program'' to read ``Highway Safety Improvement Program
implementation'', and ``Pavement marking demonstration'' to read
``Pavement marking''.
[FR Doc. E7-7770 Filed 5-1-07; 8:45 am]
BILLING CODE 6560-50-P