Transportation Conformity Rule Amendments To Implement Provisions Contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

PDF Version (23 pp, 374K, About PDF)

[Federal Register: January 24, 2008 (Volume 73, Number 16)]
[Rules and Regulations]
[Page 4419-4441]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja08-33]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2006-0612; FRL-8516-6]
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: Final rule.

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SUMMARY: In this action, EPA is amending the transportation conformity
rule to finalize provisions that were proposed on May 2, 2007. 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. Most of these amendments are necessary to make the rule
consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU
on August 10, 2005 (Pub. L. 109-59), including changes to the
regulations to reflect that the Clean Air Act 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 of conformity determinations, and streamlines other
provisions. This final rule also includes minor amendments that are not
related to SAFETEA-LU, such as allowing the Department of
Transportation (DOT) to make categorical hot-spot findings for
appropriate projects in carbon monoxide nonattainment and maintenance
areas.
    EPA has consulted with DOT, and they concur with this final rule.

DATES: Effective Date: This final rule is effective on February 25, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2006-0612. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://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: 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: berry.laura@epa.gov, telephone number: (734)
214-4858, fax number: (734) 214-4052, or 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: kapichak.rudolph@epa.gov, telephone number:
(734) 214-4574, 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. Removal 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).
State government.............  State transportation and air quality
                                agencies.
Federal government...........  Department of Transportation (Federal
                                Highway Administration (FHWA) and
                                Federal Transit Administration (FTA)).
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the 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. How Can I Get Copies of This Document?

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 http://www.regulations.gov. You may use

[[Page 4421]]

http://www.regulations.gov to view public comments, access the index listing
of the contents of the official public docket, and 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 are not 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 is not placed in the electronic public docket but
is 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.
    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
(PM_2.5 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 PM_2.5 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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    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 several
other amendments. See EPA's Web site at 
http://www.epa.gov/otaq/stateresources/transconf/index.htm
for further information.

B. Why Are We Issuing This Final 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.
This final rule addresses the relevant changes that SAFETEA-LU made to
the Clean Air Act.
    This final rule replaces the joint EPA-DOT interim guidance issued
February 14, 2006, which provided guidance to areas subject to
transportation conformity on implementing the changes to the Clean Air
Act made by SAFETEA-LU.\2\ This final rule is consistent with the
February 2006 guidance.
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    \2\ Note that the TCM portion of the February 14, 2006, guidance
is not covered in today's final rule, but in an updated guidance
document that will be available on EPA's Web site at 
http://www.epa.gov/otaq/stateresources/transconf/policy.htm.

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    DOT is our federal partner in implementing the transportation
conformity regulations. EPA has consulted with DOT on the development
of this final rule, and DOT concurs with its content.
    EPA received comments on the proposed rule from 16 different
entities, though some commenters submitted comments jointly. Commenters
included state DOTs, MPOs, state and local air quality agencies,
government associations, and industry associations.
    The majority of commenters supported EPA's proposal in general, and
specific provisions in particular, which are discussed below. EPA is
addressing these and other comments in the relevant sections of the
preamble and in the responses to comments document, which can be found
in the public docket for this final rule.

III. Frequency of Conformity Determinations

A. Description of Final Rule

    EPA is changing 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. The pre-existing regulations required these determinations
to be made at least every three years.

B. Rationale and Response to Comments

    These changes to Sec.  93.104 are needed 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.
    Several commenters voiced support for this change because it is
consistent with the Clean Air Act, as amended by SAFETEA-LU. One
commenter noted that this change will be helpful particularly to small
communities. One commenter opposed the proposal because the commenter
believes that having more frequent conformity determinations may be
important in areas with significant on-road mobile source emissions.
    As already stated, and as other commenters noted, this change is

[[Page 4422]]

necessary to make the regulation consistent with the law. Furthermore,
EPA believes that despite this change in the required frequency of
conformity determinations, the transportation conformity program still
achieves its purpose in ensuring transportation actions conform to the
SIP. Transportation plans and TIPs must still conform before they are
adopted.
    Several commenters suggested that EPA also change ``three years''
to ``four years'' in Sec.  93.104(d) of the conformity rule. This
provision describes the circumstances when a conformity determination
for a project is needed, one of which is when more than three years
have elapsed since the most recent major step to advance the project.
Commenters requested that three years be changed to four years to be
consistent with SAFETEA-LU provisions of determining conformity on TIPs
and transportation plans every four years.
    EPA is not changing Sec.  93.104(d) in this rulemaking. First, this
change was not proposed, as it was not required by the Clean Air Act as
amended by SAFETEA-LU. SAFETEA-LU aligned transportation plan, TIP, and
the frequency of transportation plan and TIP conformity determinations
to create efficiencies in the overall planning process, rather than to
allow more time when project phases are delayed.
    Second, the conformity rule requires that a new conformity
determination be done for a project if more than three years have
elapsed since a major step has occurred to be consistent with the
regulations under the National Environmental Policy Act (NEPA), rather
than with the frequency of conformity determinations for transportation
plans and TIPs. The NEPA regulations require reevaluation of NEPA
documents for projects which have not had major action for three years.
Please refer to ``H. Time Limit on Project-Level Determinations'' in
the preamble of the November 24, 1993, conformity rule (58 FR 62200)
for more explanation of this point.

C. Overlap With Transportation Planning Frequency 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. Further discussion of the
implementation of the SAFETEA-LU statewide and metropolitan
transportation planning requirements can be found in DOT's February 14,
2007, final rulemaking on metropolitan and statewide transportation
planning (72 FR 7224).
    Today's change to the required frequency of transportation plan and
TIP conformity determinations 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 on EPA's
Web site at http://www.epa.gov/otaq/stateresources/transconf/policy.htm
and on DOT's Web site at http://www.fhwa.dot.gov/environment/

D. Related Change: Consequences of a Control Strategy SIP Disapproval

1. Description of Final Rule
    EPA is revising Sec.  93.120(a)(2) to allow projects in the first
four years of the conforming transportation plan and 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. In this
section of the regulation, EPA is changing the two instances of ``three
years'' to ``four years,'' similar to the changes made in Sec. Sec. 
93.104(b)(3) and (c)(3), the other sections of the rule affected by the
change in the required frequency of conformity determinations. Though
the final regulation at Sec.  93.120(a)(2) differs from the language
that was proposed, it is the same in substance as the proposed rule.
2. Rationale and Response to Comments
    EPA is making this change to be consistent with the general
implementation of SAFETEA-LU, which requires transportation plans and
TIPs to be updated every four years and requires TIPs to cover a period
of four years. EPA had proposed to generalize this language to allow a
project to proceed during a freeze if it was included in the conforming
TIP in order to account for the transition to new SAFETEA-LU
transportation planning requirements. EPA believed the proposed
language would be useful during the transition to SAFETEA-LU's planning
requirements. We believed that when the rule became final, some MPOs
would still have three-year TIPs prior to developing four-year TIPs for
SAFETEA-LU. See the preamble to the May 2, 2007, proposed rule (72 FR
24475) for EPA's full rationale. Several commenters supported the
language we had proposed, because it accounted for the transition to
SAFETEA-LU's planning requirements. EPA received no comments opposing it.
    However, the transition period ended on July 1, 2007. While some
areas may still have three-year TIPs today, these will all be replaced
over time by four-year TIPs. EPA believes the better update to Sec. 
93.120(a)(2) is simply to change the instances of ``three years'' to
``four years,'' as it is more clear and more consistent with the prior
regulatory language. If EPA disapproves a SIP without a protective
finding in an area that still has a three-year TIP, only projects from
the first three years of the conforming transportation plan and TIP
could proceed, because the regulation states that projects must be in
both the conforming transportation plan and TIP (except during the
lapse grace period, discussed in Section V.E., below).
    Today's final rule at Sec.  93.120(a)(2) is consistent with the
proposed rule for this section. Though the proposed language had
eliminated the reference to a conforming transportation plan, EPA did
not intend to change other rule requirements. In fact, EPA stated so in
the preamble to the May 2, 2007, proposed rule:

    However, this proposed general language is not intended to
change other rule requirements. Although EPA's 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). (72 FR 24475)

    While it is the same in substance as the proposed rule language,
the change to Sec.  93.120(a)(2) in today's final rule is more clear,
because it continues to state explicitly that a project must be in both
the conforming transportation plan as well as conforming TIP. Note that
Section V.E. discusses the exception to this requirement during the
lapse grace

[[Page 4423]]

period, which is also included in today's final rule for Sec.  93.120(a)(2).

IV. Deadline for Conformity Determinations When a New Budget Is Established

A. Description of the Final Rule

    EPA is revising 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.'' The revision gives MPOs and DOT
two years, increased from 18 months, to determine conformity of a
transportation plan and TIP when a new budget is established. 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)).

B. Rationale and Response to Comments

    This change makes the conformity regulation consistent with the
current 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. Several commenters generally
supported this change, noting that it is necessary to be consistent
with the current law. This Clean Air Act provision has been in effect
as of August 10, 2005.
    The regulation's description of events that trigger a new
conformity determination have not been changed because they were
already consistent with the amendments made to the Clean Air Act in
SAFETEA-LU, for the reasons described in the preamble to the May 2,
2007, proposed rule (72 FR 24475-24476). EPA also notes that no change
is necessary for the point at which the two-year clocks begin. 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. Description of the Final Rule

    EPA is adding a one-year grace period before a conformity lapse
occurs 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. Sec. 
93.104(b)(3) and 93.104(c)(3) (see Section III.), and
    • The requirement to determine conformity within two years
of a trigger under Sec.  93.104(e) (see Section IV.).

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).
    To provide the rules to allow projects to meet conformity
requirements \3\ during the lapse grace period, EPA is adding a new
provision to the regulation, Sec.  93.104(f).
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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) allows non-exempt FHWA/FTA projects
to 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) allows 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 Sec.  93.104(f)(2) allows a project to be found to
conform when the transportation plan and TIP have expired, a project
must also meet DOT's planning and other 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 per 40 CFR 93.126 and
93.128, respectively.
    In addition, EPA is revising 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 requires that there be a currently
conforming transportation plan and TIP at the time of project approval,
except during the lapse grace period, when a non-exempt project must
come from the most recent conforming transportation plan and TIP. (A
project must also meet DOT's planning and other requirements to receive
Federal funding or approval. See Section V.C. below for further discussion.)
    • Section 93.115 requires that non-exempt FHWA/FTA projects
come from a conforming transportation plan and TIP, except during the
lapse grace period, when a project could come from the most recent
conforming plan and TIP. (A project must also meet DOT's planning and
other requirements to receive federal funding or approval. See Section
V.C. below for further discussion.)
    • Similarly, Sec.  93.121 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, except
during the lapse grace period, when such 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.
    Note that the lapse grace period only applies to transportation
conformity, and 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.

B. Rationale and Response to Comments

    These 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. See the preamble to the May 2, 2007, proposed rule (72 FR 24476-
8) for EPA's full rationale supporting this provision of the final rule.
    Six of the seven commenters who commented on the lapse grace period
supported EPA's proposal. These commenters generally believe that EPA's
proposal to incorporate the lapse grace period into the conformity rule
is consistent with the Clean Air Act as amended by SAFETEA-LU. One
commenter stated that the lapse grace period allows time and
flexibility for

[[Page 4424]]

areas to comply with Clean Air Act requirements. Another commenter who
supported the lapse grace period specifically agreed with EPA's
interpretation that Congress meant to allow conformity requirements to
be satisfied for projects during the lapse grace period, even if there
is no conforming transportation plan and TIP at the time. This
commenter opined that any other interpretation renders Clean Air Act
section 176(c)(9) meaningless.
    Two commenters requested that EPA clarify the commenters'
interpretation that the lapse grace period applies to projects not from
a conforming transportation plan and TIP as long as the requirements of
40 CFR 93.115(b)(2) are addressed. EPA disagrees with the commenters'
interpretation; merely meeting Sec.  93.115(b)(2) and nothing more
would not be sufficient for a project to proceed during the lapse grace
period. To be found to conform during the lapse grace period, a project
must be from a conforming transportation plan and TIP (Sec. 
93.104(f)(1)), or from the most recent conforming transportation plan
and TIP (Sec.  93.104(f)(2)).
    Section 93.115(b) describes the circumstances under which a project
is considered to be from a conforming transportation plan. Paragraph
(b)(2) provides that if a project is not specifically identified in the
transportation plan, it can be considered to be ``from'' the plan as
long as it ``is consistent with the policies and purpose of the
transportation plan and will not interfere with other projects
specifically included in the transportation plan.''
    A project that meets only the requirements of Sec.  93.115(b)(2)
can be considered to be from a conforming transportation plan. But to
proceed during the lapse grace period, it must also be from a
conforming or most recent conforming TIP as well, as required by Clean
Air Act sections 176(c)(2)(D) and (c)(2)(C)(i).
    The one commenter who opposed EPA's proposal for the lapse grace
period thought that it was counter to EPA's mission to protect public
health. The commenter stated that on-road mobile source emissions are
important and thought that the lapse grace period would increase these
emissions. In response, first EPA notes that Congress added the lapse
grace period in its amendments to the Clean Air Act, and EPA is simply
revising the regulations to make them consistent with the current law.
Second, a project cannot actually proceed to completion unless there is
a valid, i.e., currently conforming, TIP that also meets transportation
planning requirements. Therefore, the project's emissions would have
been considered in the conformity determination for this TIP,
eliminating the possibility of unanticipated emissions increases.

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 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
conformity lapse grace period.\4\
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    \4\ These scenarios are consistent with those highlighted in EPA
and DOT's joint February 14, 2006, interim guidance, which is
superceded by today's final rule.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 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 lapse 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\
---------------------------------------------------------------------------

    \6\ This one-year grace period for newly designated areas most
recently applied to the areas designated for the 8-hour ozone and
PM_2.5 standards. All of these metropolitan areas have at
this point determined transportation plan/TIP conformity.

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[[Page 4425]]

    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 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.
---------------------------------------------------------------------------

    \7\ Such disapprovals occur infrequently; EPA has only
disapproved SIPs without a protective finding in three instances
since the 1997 conformity rule was promulgated.
---------------------------------------------------------------------------

    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 and other requirements to receive Federal funding or
approval during the lapse grace period.
    If a freeze becomes a lapse because two years transpire 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 when sanctions are applied.

VI. Timeframes for Conformity Determinations

A. Overview

    Through SAFETEA-LU, Congress added new paragraph (7) to Clean Air
Act section 176(c) to allow areas 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 of 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 continues to demonstrate
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.
---------------------------------------------------------------------------

    \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.'' For the reasons explained in the May 2,
2007, proposed rule (72 FR 24479 and 27780), EPA is using the
equivalent term ``state and local air quality agencies'' in this
preamble and final rule.
---------------------------------------------------------------------------

    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.
    Today EPA is finalizing several changes in the regulatory language
to provide the rules for shortening the conformity timeframe, and most
of these changes are found in Sec.  93.106(d). This section discusses
these changes and is organized as follows:
    • Metropolitan areas that do not have an adequate or
approved second maintenance plan (Section VI.B.).
    • Metropolitan areas with adequate or approved second
maintenance plans (Section VI.C.).
    • How elections are made in metropolitan areas to either
shorten the conformity timeframe, or revert to the original conformity
timeframe once the timeframe has been shortened (Section VI.D.).
    • Isolated rural areas (Section VI.E.).
    • Conformity implementation in all areas under a shortened conformity
timeframe, including which years must be analyzed (Section VI.F.).

B. Timeframe Covered by Conformity Determinations in Metropolitan Areas
Without Second Maintenance Plans

1. Description of Final Rule
    Transportation plan and TIP conformity determinations must cover
the timeframe of the transportation plan, unless an MPO elects to
shorten the timeframe. This requirement is found in Sec.  93.106(d)(1).
In areas without an adequate or approved second maintenance plan (i.e.,
a maintenance plan addressing Clean Air Act section 175A(b)), the Clean
Air Act requires that a shortened conformity determination must extend
through the latest of the following years:
    • The first 10-year period of the transportation plan;
    • The latest year for which the SIP (or FIP) applicable to
the area establishes 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.
    These requirements are found in EPA's regulation at Sec. 
93.106(d)(2)(i). The final language in Sec.  93.106(d)(2)(i) is
consistent with the proposed language, although minor clarifications
have been made in response to comments. Specifically, the regulation at
Sec.  93.106(d)(2)(i) states, ``The shortened timeframe of the
conformity determination must extend at least to the latest of the
following years.'' The proposed wording was, ``The shortened timeframe
of the conformity determination must be the longest of the following.''

[[Page 4426]]

    The final regulation at Sec.  93.106(d)(2)(i)(B) is also slightly
different than proposed, but the same in substance as the proposed
rule. This provision now reads, ``The latest year for which an adequate
or approved motor vehicle emissions budget(s) is established in a
submitted or applicable implementation plan'' rather than the proposed
wording, ``The latest year in the submitted or applicable
implementation plan that contains an adequate or approved motor vehicle
emissions budget(s).''
    Note that an MPO that has shortened its conformity timeframe does
not choose which of these three timeframes it prefers to examine in the
conformity determination; it must examine the longest of them. Such an
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 and Response to Comments
    These provisions 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's regulation
at Sec.  93.106(d)(1) requires that conformity determinations cover the
timeframe of the transportation plan unless the MPO makes an election
to shorten the timeframe. The 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 regulation at Sec.  93.106(d)(2)(i), which requires 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 received several comments in support of the flexibility to
shorten the timeframe of the conformity determination.
    EPA is clarifying the language in Sec.  93.106(d)(2)(i) and Sec. 
93.106(d)(2)(i)(B) from the proposal based on the suggestion of three
commenters, although the meaning is the same as in the proposal. As a
result, the final rule clarifies that the shortened timeframe must
extend through the latest year of the three periods. EPA modified some
of the commenters' suggested language to be consistent with the statute.
    The same commenters also suggested we change the language in Sec. 
93.106(d)(2)(i)(B) to refer to the latest year for which a budget is
established, rather than the latest year that ``contains'' a budget.
EPA has taken this suggestion because this language likewise improves
clarity.

C. Timeframe of Conformity Determinations in Metropolitan Areas With
Second Maintenance Plans

1. Description of Final Rule
    In areas that have an adequate or approved maintenance plan under
Clean Air Act section 175A(b), transportation plan and TIP conformity
determinations must cover the timeframe of the transportation plan
unless an MPO elects to shorten the timeframe. This requirement is
found in Sec.  93.106(d)(1). 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 an MPO with
an adequate or approved second maintenance plan 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 second maintenance
plan. This period of time is in contrast to the longest of the three
periods discussed in Section VI.B. for areas that do not have an
adequate or approved second maintenance plan. The regulatory language
for shortening the timeframe in areas with second maintenance plans is
found in Sec.  93.106(d)(3).
2. Rationale and Response to Comments
    This rule provision for shortening the conformity timeframe in
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) 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).
    Several commenters specifically noted their support for this
provision. However, one commenter suggested that the proposed language
for Sec.  93.106(d)(2)(i) should be revised to be consistent with the
fact that the Clean Air Act as amended by SAFETEA-LU allows areas with
adequate or approved second 10-year maintenance plans to determine
conformity through only the last year of the maintenance plan. EPA's
proposed regulation was consistent with the statutory provision for
areas with adequate or approved second maintenance plans, and the final
rule is as well. EPA believes this commenter may have misread the
organization of this section, as we covered areas without second
maintenance plans in Sec.  93.106(d)(2), and areas with second
maintenance plans in Sec.  93.106(d)(3).

D. Process for Elections

1. Description of Final Rule
    First, before an MPO elects to shorten the conformity timeframe, it
has to consult with state and local air quality planning agencies,
solicit public comment, and consider those comments. These requirements
are found in Sec.  93.106(d)(2). Consultation with the state and local
air agencies would occur early in the decision-making process.
    Second, once an MPO makes an election to shorten the period of time
addressed in its transportation plan/TIP conformity determinations, the
election remains 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. An MPO that has elected to shorten the timeframe of conformity
determinations that wants to revert to analyzing the full timeframe of
the transportation plan must consult with the state and local air
quality agencies, solicit public comments, and consider such comments
before doing so. These provisions are found in Sec.  93.106(d)(4).
    EPA believes that consultation with the state and local air quality
agencies on shortening the timeframe would typically occur in the
context of the

[[Page 4427]]

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, consultation should 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.
    MPOs should follow their normal process for public participation
regarding conformity actions when electing to shorten their conformity
timeframe. MPOs are not required to revise their public participation/
involvement procedures required by 23 U.S.C. 134(i)(5) to address
public consultation on shortening the area's conformity timeframe.
    MPOs are encouraged to make their elections prior to the start of
the public comment period for their next conformity determination.
Making the election prior to the start of the public comment period for
the next conformity determination ensures that the public will
understand that future conformity determinations will address a shorter
period of time. Doing so will also allow the MPO to develop its next
conformity determination in a more efficient manner and avoid running
analyses for additional years, as described in the following paragraph.
    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 and decides not to do so.
2. Rationale and Response to Comments
    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 refers only to consultation with the air agency or
agencies and does not require their concurrence.
    A definition of ``air pollution control agency'' has been added at
Clean Air Act section 176(c)(7)(E), which EPA interprets to mean the
relevant state and local air quality agencies that have regularly
participated in the conformity consultation process, as discussed in
the preamble to the May 2, 2007, proposed rule (72 FR 24480).
    EPA's regulation states 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 requested comment on 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. Option A would have
required MPOs to consult with state and local air agencies and solicit
and consider public comment before reverting back to determining
conformity for the full length of the transportation plan; Option B
would have allowed MPOs to revert to the full timeframe without
additional consultation or public comment.
    EPA is finalizing Option A. As explained in the proposal, Clean Air
Act section 176(c)(7)(D) states that a shortened timeframe remains in
effect unless an MPO ``elects otherwise.'' An ``election'' to shorten
the timeframe under section 176(c)(7) requires consultation with the
state and local air quality agencies, solicitation of public comment
and consideration of any comments received. EPA's interpretation is
that an election to revert to determining conformity for the entire
length of the transportation plan is an election under this section and
therefore also includes consultation with the state and local air
pollution control agencies, solicitation of public comment, and
consideration of those comments. Since the Clean Air Act uses the same
term--``election''--in both subsections, it is reasonable to conclude
that the same process should be followed for both actions.
    However, we expect the resource burden of this requirement to be
minimal. MPOs can limit the additional burden of consultation with
state and local air agencies and solicitation and consideration of
public comment by using procedures developed to meet existing
conformity requirements. Consultation with the state and local air
quality planning agencies must already occur on the conformity
determination within the interagency consultation process. Similarly,
the MPO must already seek public comment on the conformity
determination, according to the requirements in 40 CFR 93.105(e). By
relying on these existing consultation procedures, the MPO could avoid
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.
    Two trade associations supported Option A, and stated that their
members appreciate the opportunity to comment on significant decisions
made by MPOs that have the potential to impact transportation projects
or an area's ability to move forward with its transportation plans.
These commenters thought that the public comment period should occur
early in the conformity process so that conformity timing would not be
negatively impacted. EPA appreciates these comments and supports the
ability of the public to comment on decisions within the transportation
conformity process that affect them.
    A couple of commenters supported Option B, allowing an MPO to
revert to a full-plan conformity timeframe without additional
consultation or solicitation of public comment. Commenters opined that
consultation and public comment are already required by 40 CFR 93.105,
and those requirements already ensure that state and local air agencies
will be consulted before any decisions are made. While MPOs can use
these existing consultation and public comment provisions when
reverting to the full transportation plan length timeframe, EPA is
finalizing Option A so that MPOs will specifically solicit comment on
the length of the conformity timeframe within these existing processes.
    Other commenters offered an alternative option of using the
established interagency consultation process to decide if a new public
comment period should be required before an area elects to revert back
to determining conformity for the entire timeframe of the
transportation plan. The commenters suggested that this option would
allow areas the flexibility to decide if a new public comment period is
needed, while minimizing resource costs.
    EPA did not finalize these commenters' suggestion because it would
have required MPOs to consult

[[Page 4428]]

with a more extensive set of agencies to return to the full conformity
timeframe than required by the statute when shortening the timeframe in
the first place. When an MPO elects to shorten the timeframe, the Clean
Air Act requires consultation with the state and local air agencies.
Under the commenters' suggestion, before electing to revert to the full
timeframe, MPOs would have to consult not only with state and local air
agencies, but also EPA, DOT, and state and other local transportation
agencies (e.g., transit agencies), because the interagency consultation
process includes all of these agencies. This additional consultation is
beyond what is required by this section of the statute.
    As stated above, the existing interagency consultation process can
be used to fulfill the requirement for consultation with state and
local air quality agencies, because the MPO will be meeting with or
speaking to representatives of these agencies in the context of the
interagency consultation process. However, EPA believes that consulting
with the relevant air agencies within the existing interagency
consultation process is different, and less burdensome, than consulting
with every agency involved in the interagency process. Second, the
statute does not separate the interagency consultation and public
comment processes as suggested by the commenters. The Clean Air Act
section 176(c)(7) requires both consultation and public involvement
whenever a timeframe is shortened, rather than consultation without
public involvement. Rather than having agencies decide if the public
would benefit by commenting, EPA believes the better interpretation of
Congress' intent is to offer the public the opportunity to comment in
all cases.
    Placement in regulatory text. EPA is placing the requirements for
state and local air quality agency consultation and public comment for
shortening the conformity timeframe in Sec.  93.106 because this type
of consultation would only occur when the MPO is considering electing
to shorten the timeframe. Furthermore, placing these requirements in
Sec.  93.106, rather than in 40 CFR 93.105, assures that no states with
approved conformity SIPs have to amend them to add this provision. (See
Section VII. for more information about the requirements for conformity
SIPs.) EPA received no comments about this placement. See the preamble
to the May 2, 2007, proposed rule (72 FR 24481) for EPA's full rationale.

E. Isolated Rural Nonattainment and Maintenance Areas

1. Description of Final Rule
    Isolated rural nonattainment and maintenance areas do not have MPOs
and are not required to prepare transportation plans or TIPs (40 CFR
93.101). 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).
---------------------------------------------------------------------------

    The final rule gives isolated rural nonattainment and maintenance
areas the flexibility to shorten the conformity timeframe in the same
manner as metropolitan areas. The requirements for shortening the
conformity timeframe in isolated rural areas are identical to the
requirements in metropolitan areas, except the entity that would make
the election to shorten the timeframe in an isolated rural area is the
state DOT, rather than the MPO. The rule accomplishes this result by
including a sentence in Sec.  93.109(l)(2)(i) that says, ``When the
requirements of Sec.  93.106(d) apply to isolated rural areas,
references to ``MPO'' should be taken to mean the state department of
transportation.''
2. Rationale and Response to Comments
    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.
See the preamble to the May 2, 2007, proposed rule (72 FR 24482) for
EPA's full discussion of why EPA concludes it is appropriate to give
isolated rural areas the flexibility to shorten their conformity timeframe.
    Seven commenters supported allowing isolated rural areas to shorten
the timeframe of conformity determinations, and none opposed it.
Commenters generally agreed with EPA's rationale that Congress did not
prohibit extending the flexibility to isolated rural areas, and that
these areas are treated much like MPOs throughout the rest of the
conformity rule. One commenter noted that extending this flexibility to
isolated rural areas will have no impact on project-level requirements
in these areas.
    EPA proposed two options for the entity that would make the
election in isolated rural areas: Either the state DOT or the project
sponsor, and solicited input on whether there are any other
alternatives. Six commenters supported the state DOT option, and two
supported the project sponsor option; no alternative entities were
suggested.
    EPA believes that assigning the ability to elect to shorten the
conformity timeframe to the state DOT makes the most sense. First, 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. Two commenters that
supported the state DOT option cited this reason as well. Also, 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. One commenter noted that given the consultation and public
participation requirements associated with preparing transportation
planning documents, the state DOT would be in the best position to
satisfy similar requirements for electing to shorten the timeframe.
    Though the state DOT is typically the project sponsor who prepares
the conformity determination, several commenters were concerned about
the possibility of there being more than one project sponsor in an
area. Commenters noted that there may be multiple small entity project
sponsors in an area, which could possibly lead to conflicts. A couple
of commenters thought that the project sponsor option could result in
confusion, inconsistent decisions in a state, and unpredictability.
    The two commenters that supported the project sponsor option
thought that project sponsors would be more closely attuned to local
concerns. However, these commenters recognized that if there were
multiple project sponsors, conflicts could arise, and recommended that
in those cases, the state DOT should have the ability to shorten the
timeframe. In considering these comments, EPA solicited input from EPA
and DOT field offices, and concluded that in all recent cases, the
state DOT is in fact the project sponsor for all FHWA/FTA projects in
isolated rural areas. These areas are different than donut areas where
county agencies sometimes are the project sponsor.

[[Page 4429]]

    Finally, EPA believes it appropriate to name the state DOT as the
entity with the ability to shorten the timeframe in an isolated rural
area for specificity, because the state DOT is already relied upon in
the conformity rule and guidance for isolated rural area conformity
requirements.

F. Specific Analysis Requirements Under a Shortened Timeframe

1. Description of Final Rule
    EPA is including most of the necessary regulatory language for
shortening the conformity timeframe within Sec.  93.106, and is also
updating Sec. Sec.  93.118 and 93.119. Note that these provisions apply
to both metropolitan and isolated rural areas.
    • First, Sec.  93.106 is being renamed as ``Content of
transportation plans and timeframe of conformity determination.''
    • Second, Sec.  93.106(a)(1) is being amended 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 updating 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, are similar to
requirements that have existed, and still exist, for areas that
determine conformity for the full length of the transportation plan.
Under a shortened timeframe, consistency with, and an analysis for, the
attainment year is necessary only if the attainment year is both within
the timeframe of the transportation plan and conformity determination.
In addition, under a shortened timeframe, instead of analyzing the last
year of the transportation plan for the conformity determination, the
analysis must be done for the last year of the shortened timeframe.
    In areas that do not have an adequate or approved second
maintenance plan budget, the conformity determination must also 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. These regional emissions
analyses must be done in a manner consistent with how the budget test
is performed and 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 budgets in these years.
Documentation of any informational analysis should clearly state that
its purpose is informational only, and that conformity is not required
to be demonstrated for the last year of the transportation plan or any
year where the budgets were exceeded in a previous regional emissions
analysis if that year is later than the shortened conformity timeframe.
There is no similar requirement for information-only analyses in areas
with an adequate or approved second maintenance plan budget, 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, the requirements for
analysis years in areas that shorten their conformity timeframe are
similar to the requirements in Sec.  93.119 that have applied and still
apply under a full transportation plan-length conformity determination.
Under a shortened timeframe, instead of analyzing the last year of the
transportation plan, the analysis would be done for the last year of
the shortened timeframe.
    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. This regional emissions
analysis would be for informational purposes only, and must be done in
a 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 requirement 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.
    EPA proposed three options for the informational analysis for the
last year of the transportation plan in areas that use the interim
emissions tests: To compare estimated emissions to the interim
emissions test(s) used in the conformity determination (Option X), to
compare estimated emissions to either interim emissions test (Option
Y), or just to estimate emissions without comparing them to either test
(Option Z). EPA is finalizing Option Z.
    While the final rule requires only an estimate of regional
emissions for the transportation system that would exist in the last
year of the transportation plan, EPA encourages MPOs and state DOTs to
present this informational analysis in context so that it is truly
informative for members of the public or state and local air agencies
who are reviewing it. One possible way of doing so is to present a
summary table of all of the years for which an analysis was run,
including both the years analyzed in the conformity determination and
the last year analyzed for informational purposes only. Another
possible method would be to present a comparison with the emissions
level from the baseline year (e.g., 2002), as is done for the baseline
year test under 40 CFR 93.119. Furthermore, it would also be acceptable
for an area to complete the build/no-build test as well, if desired.
Documentation of any informational analysis should clearly state that
its purpose is informational only, and that conformity is not required
to be demonstrated for the last year of the transportation plan.
2. Rationale and Response to Comments
    General. EPA has made 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 implementing the specific
requirements of the new Clean Air Act provision in today's regulatory
changes. These changes for required analysis years for conformity
determinations with shortened timeframes are generally consistent with
what has been current practice when conformity is determined for the
full length of the transportation plan.
    Given that the statute did not specify the years that must be
analyzed in a conformity determination with a shortened timeframe, EPA
reasonably concluded that 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

[[Page 4430]]

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. No
comments were received on these general provisions.
    Areas that use the budget test. If the conformity timeframe is
shortened in an area that does not have an adequate or approved second
maintenance plan, EPA's regulation requires that the conformity
determination be accompanied by an informational analysis. The rule
language 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, is also based in the new 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, these analyses need to be done in a manner consistent with
all the general requirements of the conformity regulations for such
analyses.
    This same statutory language is the reason that these analyses do
not need to meet the required conformity tests. The statutory language
makes it clear that these emissions analyses only ``accompany'' the
conformity determination, and thus are not part of the conformity
determination. Therefore, EPA concludes that conformity need not be
demonstrated with respect to these analyses.
    Areas that use the interim emissions tests. In areas that use the
interim emissions tests, an informational analysis is required only for
the last year of the transportation plan. In contrast, areas that use
budgets also must do an informational analysis for any years that
exceeded the budgets in a prior analysis. Such years would be years
that extended beyond the shortened timeframe of prior conformity
determinations, which were analyzed for informational purposes only.
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 will not be
any years for which a prior analysis shows the budget will be exceeded,
and as such 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 requested comment on three options for what an information-only
regional emissions analysis would consist of in an area that uses the
interim emissions test. Option X would have required that emissions be
compared to the same interim emissions test (i.e., build/no-build and/
or the baseline year test(s)) as is used in the conformity
determination. Option Y would have required that emissions be compared
to either interim emissions test. Option Z, which we finalized,
requires simply the estimate of emissions in the last year of the
transportation plan with no comparison to either interim emissions test.
    The statutory language is ambiguous regarding the information-only
regional emissions analysis prior to the establishment of SIP budgets.
Section 176(c)(7)(B) states that 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 that conformity is maintained,'' \10\ but does not include any
direction on how this goal should be met in those areas that use the
interim emissions tests.
---------------------------------------------------------------------------

    \10\ Joint Explanatory Statement of the Committee of Conference,
``Section 6011, Transportation Conformity,'' p. 1059.
---------------------------------------------------------------------------

    Five commenters provided opinions on these options. One commenter
preferred Option X (i.e., to use the same test(s) as in the conformity
determination) because it involves use of similar information to that
presented elsewhere in the determination. This commenter thought that
presenting the estimate of emissions in context of the interim
emissions tests is helpful in informing state and local agencies and
the public about future emissions trends, and is consistent with the
intent of Congress.
    The remaining four commenters preferred Option Z. Some of these
commenters thought that comparisons to the interim emissions tests
could be confusing to stakeholders if a test is not met for the
informational analysis. One of these commenters thought that EPA should
allow for the presentation of these results at the discretion of the
MPO and state DOT after interagency consultation. This commenter
thought that states and MPOs understand the local context for
transportation conformity and are best suited for determining what
information should be presented for the last year of the transportation
plan under a shortened timeframe.
    As described above, EPA is finalizing Option Z to be consistent
with the statute, which does not require that the interim emissions
tests be performed for informational purposes. Under the final rule,
MPOs and state DOTs have the discretion in presenting the results of
the informational analysis for the last year of the transportation
plan, and EPA encourages them to provide useful information to other
involved agencies and the public. See Section F.1. above for additional
suggestions on how to present such analyses to the public.
    Areas with second maintenance plans that shorten their conformity
timeframe. No information-only analyses is required 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 section 176(c)(7)(C)
itself does not require any informational analyses. Therefore, 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. EPA received no
comments on this particular point.

VII. Conformity SIPs

A. Description of Final Rule

    EPA is changing 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

[[Page 4431]]

emissions budgets or air quality demonstrations.
    EPA is finalizing requirements for states to submit conformity SIPs
that address only the following sections of the pre-existing federal
rule. These three sections 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. The rule had previously required states' conformity
SIPs to include most of the sections of the federal rule verbatim.
    In addition, EPA is also deleting the requirement for states to
submit conformity SIPs to DOT. States must continue to submit
conformity SIPs to EPA. EPA is also reorganizing the conformity SIP
regulatory language to improve clarity and readability. The regulatory
language in Sec.  51.390 is re-ordered to more naturally fall into
three topics: Purpose and applicability, conformity implementation plan
content, and timing and approvals. The language retains existing
requirements with appropriate modifications based on the new Clean Air
Act amendment from SAFETEA-LU.

B. Rationale and Response to Comments

    EPA is primarily changing 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 adopt 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.
    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. Four commenters supported these changes.
Three commenters specifically agreed that these changes streamline the
conformity SIP process and preclude the need for a state to update its
conformity SIP each time the federal rule is revised. These commenters
requested that EPA urge states to include only the three required
sections in their conformity SIPs to minimize the possibility of having
to revise the SIP when the federal rule is updated. EPA agrees with
this point. However, the fourth commenter also requested that states
still be able to incorporate the rest of the transportation conformity
rule by reference. This option is further discussed in Section D.2 below.
    EPA is removing the requirement for states to submit 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. This does not
change the existing conformity rule's requirement that EPA provide DOT
with a 30-day comment period on conformity SIP revisions.
    The re-organizational changes to Sec.  51.390 are for clarity and
readability and not related to changes in the law. EPA is making these
changes to make this section more user-friendly, and the changes do not
affect the substance of the pre-existing regulatory requirements.

C. How Does the Final Rule Impact States?

1. Areas That Have Never Submitted a Conformity SIP
    States that have never submitted a conformity SIP are required to
address only 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 Have 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 can 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 can 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 would not change conformity's implementation in practice
because the federal conformity rule applies for any provision not
addressed in a state's conformity SIP. States are encouraged to work
with their EPA Regional Office as early in the process as possible to
ensure the SIP submission 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

[[Page 4432]]

could approve the submitted section(s) if it sufficiently addresses the
requirement it is intended to fulfill. 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 any state that has
only these three provisions in its approved conformity SIP, and these
changes would not need to be adopted into the state's 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. As noted above, one of
the commenters expressly asked that EPA retain this option presumably
so its state could avoid revising its conformity SIP. 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. As stated earlier, EPA strongly encourages states to only
include the three required provisions in a conformity SIP to take
advantage of the streamlining flexibilities provided for by the Clean
Air Act, as amended by SAFETEA-LU. EPA is updating our previous
guidance on conformity SIPs. The guidance will be available on EPA's
Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
State and local agencies that need to prepare a conformity
SIP should review this guidance and consult with the appropriate EPA
Regional Office.

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 approved SIP with new TCMs and adding TCMs to
an approved SIP.
    EPA is revising the definition of a TCM in Sec.  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 has determined that no additional
revision of the transportation conformity regulations is necessary to
implement the TCM substitution and addition provision. EPA did not
receive any comments on this portion of the proposed rulemaking.
    EPA concluded no implementing regulations are necessary for the
reasons explained in the preamble to the May 2, 2007 proposed rule (72
FR 24485-6).
    EPA is updating our previous guidance on TCM substitutions and
additions. The guidance will be available on EPA's Web site at: http://
www.epa.gov/otaq/stateresources/transconf/policy.htm. This guidance is
consistent with the TCM substitution and additions portion (Section 5)
of the EPA-DOT February 2006 Interim Guidance for implementing SAFETEA-
LU. State and local agencies considering TCM substitutions or additions
should review this guidance and consult with the appropriate EPA
Regional Office.
    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, the Administrator has delegated this authority to the
Regional Administrators. On September 29, 2006, the EPA Administrator
signed a delegation of authority (Delegation of Authority 7-158:
Transportation Control Measure Substitutions and Additions) providing
EPA Regional Administrators with 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

    Since the initial conformity rule was promulgated in 1993, a hot-
spot analysis has been required 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.
    A CO hot-spot analysis must show 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 eliminate or reduce the severity and
number of localized CO violations in the area substantially affected by
the project (40 CFR 93.116(b). These existing requirements remain
unchanged by today's final rule.
    The type of CO hot-spot analysis varies depending on the type of
project involved. Section 93.123(a)(1) 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. These existing requirements also remain unchanged by today's
final rule.
    Hot-spot analyses are also required for certain projects in
PM_2.5 and PM₁₀ nonattainment and maintenance
areas. The conformity rule allows DOT, in consultation with EPA, to
make a ``categorical hot-spot finding'' in PM_2.5 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

[[Page 4433]]

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 PM_2.5 or PM₁₀ areas.

B. Description of Final Rule

    EPA is extending the categorical hot-spot finding provision that
applies in PM areas to CO nonattainment and maintenance areas in
today's final rule. This provision allows 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).\11\ The regulatory text for this
provision is found in Sec.  93.123(a)(3).
---------------------------------------------------------------------------

    \11\ 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), and approved emissions model requirements in 40 CFR 93.111.
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. Modeling could
also consider the emissions produced by a category of projects and the
resulting impact on air quality under different circumstances.
    The new provision does 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 also must be followed (40 CFR 93.105). Any
project-level conformity determination that relies on a categorical
hot-spot finding is also still 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 will implement this new provision.

C. Rationale and Response to Comments

    EPA believes it is both appropriate and in compliance with the
Clean Air Act for DOT to be able to 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 has not amended 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. Today's provision for DOT to make categorical hot-spot
findings simply allows 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 certain projects on a category basis may 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
final rule 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.
    Six commenters supported this provision. These commenters agreed
that allowing DOT to make categorical hot-spot findings, in
consultation with EPA, provides an opportunity to streamline hot-spot
analyses in all CO areas for certain projects.
    Additionally, commenters thought these categorical hot-spot
findings would be consistent with the practice in many states already,
and would reduce resource burdens while still ensuring that projects
meet Clean Air Act requirements.
    Some commenters thought that allowing DOT to make categorical hot-
spot findings in CO areas would offer flexibility in satisfying the
intent of the Clean Air Act. A commenter recognized that categorical
hot-spot findings would have to be supported by credible quantitative
modeling, and the scenarios modeled by DOT to make categorical findings
would be derived through consultation and participation by EPA. EPA
notes that the commenter's understanding is correct; see Section IX.D.
below for further description of how modeling would be developed.
    While six commenters supported allowing DOT to make categorical
hot-spot findings for projects in CO areas, one commenter was concerned
that the provision to allow U.S. DOT to make categorical hot-spot
findings would be a requirement, rather than an option. This provision
is an optional flexibility and not a requirement. Once DOT has made a
finding for a category of projects, a sponsor of a project in that
category can choose whether to rely on DOT's modeling, or do its own
project-level analysis. In other words, a project sponsor can always
decide to do its own project-level analysis, even for a project that
belongs to a category that DOT has already analyzed.
    This same commenter thought that this provision is unnecessary. The
commenter thought that the similar

[[Page 4434]]

provision that applies in PM areas was created because of uncertainties
regarding PM and because interagency consultation is needed to
determine which projects are ``projects of air quality concern'' and
what constitutes a ``significant number of diesel vehicles.'' This
commenter also opined that the PM provision for categorical hot-spot
analyses was developed because there are not acceptable modeling tools
for PM_2.5 or PM₁₀. In contrast, the commenter
explained that the parameters used to identify the need for a CO hot-
spot analysis are clearly stated under Sec.  93.123(a), and the
technology for CO hot-spot analyses is accepted by EPA and FHWA.
    EPA disagrees with the commenter and believes it is useful to have
a provision for categorical hot-spot analyses in CO areas. This
provision will be useful because all non-exempt projects in CO areas
that belong to a category for which DOT has made a hot-spot finding
will have a hot-spot analysis available for use in future conformity
determinations. As noted above, project sponsors have discretion on
whether they want to model each project even if DOT has already made a
categorical hot-spot finding for projects of that type.
    This same commenter also stated that interagency consultation on CO
analyses simply adds a layer of costly and inefficient bureaucracy that
is unnecessary to complete the analysis. EPA disagrees with the
commenter on this point as well. No additional layer of bureaucracy
will be added to project-level conformity determinations in CO areas as
a result of this provision. EPA and DOT's coordination on modeling for
categorical hot-spot findings will occur separately from any particular
project's conformity determination.

D. General Implementation for Categorical Hot-Spot Findings

    EPA and DOT will implement the CO categorical hot-spot finding
provision similar to the implementation of PM_2.5 and
PM₁₀ categorical hot-spot findings, as described in the
March 10, 2006, final rule. A project-level conformity determination
continues 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)). Categorical hot-spot findings and
modeling to support such findings would primarily involve EPA and DOT
headquarters offices rather than field offices. Such coordination at
the headquarters level will ensure national consistency in applying
Sec.  93.123(a)(3) and (b)(3).
    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 Web sites.
    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. Removal of Regulation 40 CFR 93.109(e)(2)(v)

A. Description of Final Rule

    EPA is removing 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 ozone SIP budgets where the interim
emissions test(s) was determined to be more appropriate to meet Clean
Air Act requirements. The court vacated this provision and remanded it
to EPA.

B. Rationale and Response to Comments

    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, 8-hour ozone 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). 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 received one comment
agreeing that the removal is consistent with the court ruling.
    The court's decision has minimal impact since most 8-hour ozone
areas are already either using their 1-hour or 8-hour ozone SIP
budgets. EPA, in cooperation with DOT, has already provided assistance
to the limited number of areas affected by the recent court decision.

XI. Miscellaneous Revisions

A. Minor Revision to Sec.  93.102(b)(4)

    EPA is making 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) had previously stated that conformity applied
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 clarifying 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 (i.e., the area's second 10-year
maintenance plan), unless the applicable implementation plan specifies
that conformity would continue to apply beyond the end of that maintenance
plan. We received two comments that supported this clarification.
    EPA is only clarifying Sec.  93.102(b)(4) because the previous
regulation may have been 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

[[Page 4435]]

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 extends through 2030 and establishes budgets for that year.
Under the previous regulatory language, conformity applied 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 have been inconsistent with
the Clean Air Act, which requires that transportation activities
conform to the SIP. EPA's clarification that conformity applies through
the last year of the approved second maintenance plan ensures that
conformity applies throughout the time period covered by the SIP
budgets. In this example, conformity would apply until 2030.
    This revision will 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 change in the
regulation, 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 making corrections to Sec. Sec.  93.102(b)(2)(v) and
93.119(f)(10) to change ``sulfur oxides'' to ``sulfur dioxide'' and
``SO_X'' to ``SO₂.'' In the May 6, 2005,
transportation conformity final rule (70 FR 24279), EPA finalized
requirements for PM_2.5 precursors. In that final rulemaking,
we included ``sulfur oxides'' as one of the precursors and referred to
sulfur oxides as SO_X. Since that rulemaking was finalized,
EPA has finalized the PM_2.5 implementation rule (72 FR
20586) and indicated that sulfur dioxide (SO₂) would be
regulated as a PM_2.5 precursor rather than all sulfur
oxides. We are making these corrections to the transportation
conformity rule in order to make it consistent with EPA's broader
PM_2.5 implementation strategy. We received two comments that
supported these corrections. This change will not impact current
conformity practice.

C. Revisions to ``Table 2--Exempt Projects'' in Sec.  93.126

    EPA is making several minor clarifications to ``Table 2--Exempt
Projects'' in Sec.  93.126, under the category of ``Safety.''
Specifically, EPA is updating the following terms:
    • ``Hazard elimination program'' is now ``Projects that
correct, improve, or eliminate a hazardous location or feature;''
    • ``Safety improvement program'' is now ``Highway Safety
Improvement Program implementation;'' and
    • ``Pavement marking demonstration'' is now ``Pavement marking.''
    EPA is updating these terms to make them consistent with the terms
in 23 U.S.C. 148, which has been amended by SAFETEA-LU section 1401.
These revisions to Table 2 of the conformity regulation do 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. For more details see Section XI. C. ``Revisions to `Table
2--Exempt Projects' in Sec.  93.126'' in the May 2, 2007, notice of
proposed rulemaking (72 FR 24488).
    We received five comments on this portion of the proposal. Several
of the commenters indicated that they support the changes to the list
of exempt projects.
    One commenter asked if EPA had considered revising the list of
exempt projects in 40 CFR 93.126 to further clarify the types of
projects that are exempt or non-exempt under ``Transportation
Enhancement Activities.'' FHWA's guidance on activities that may be
funded with Transportation Enhancement Activities is available on DOT's
Web site at: http://www.fhwa.dot.gov/environment/te/guidance.htm#eligible.
After reviewing this guidance, we have concluded
that 40 CFR 93.126 is correct and additional changes are not required.
    Some commenters recommended additions to the list of exempt
projects in Sec.  93.126. Given that we did not propose and request
public comment on these additional changes to the list of exempt
projects, these comments are outside the scope of today's rulemaking.

D. Definitions

    Today's final rule revises 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 revising the definitions of these
terms in Sec.  93.101 to be consistent with the new statutory definitions.
These changes have no practical impact in conformity implementation.
    EPA received three comments supporting the revisions to the
definitions of MPO and TIP because these changes make the
transportation conformity regulation consistent with SAFETEA-LU.

E. Minor Clarifications for Hot-Spot Analyses

    EPA is incorporating two minor clarifications to the conformity
rule's hot-spot analysis provisions. These changes do not substantively
change current requirements but should improve understanding and
implementation of the conformity rule, in light of other rule changes.
Three commenters supported these changes related to hot-spot analyses.
    First, EPA is making minor changes to Sec. Sec.  93.109(l)(2)(i)
and 93.116(a) to ensure that CO, PM₁₀, and PM_2.5
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. Specifically,
EPA's minor change to Sec.  93.116(a) ensures that hot-spot analyses
cover the timeframe of the transportation plan in metropolitan and
donut nonattainment and maintenance areas. The addition to Sec. 
93.109(l)(2)(i) ensures that hot-spot analyses in isolated rural areas
examine a project's air quality impact over the timeframe of the long-
range statewide transportation plan.
    As discussed in Section VI., today's final rule allows MPOs to
elect to shorten the timeframe addressed by transportation plan and TIP
conformity determinations, and allows state DOTs to elect to shorten
the timeframe addressed by regional emissions analyses in isolated
rural areas. The minor changes to Sec. Sec.  93.116(a) and
93.109(l)(2)(i) 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 Clean Air Act provisions that
allow an election to shorten the timeframe covered by

[[Page 4436]]

conformity determinations apply only to transportation plan and TIP
conformity determinations, or regional emissions analyses in isolated
rural areas, and do not apply to hot-spot analyses.
    Second, today's final rule incorporates 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)
requires PM_2.5 or PM₁₀ hot-spot analyses to be
completed for ``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.'' The prior wording was ``New or
expanded highway projects that have a significant number of or
significant increase in diesel vehicles.''
    Since the March 2006 final rule was promulgated, EPA and DOT have
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 EPA and DOT have answered
these and other questions,\12\ clarifying this provision of the
conformity rule will assist planners as they implement the rule in the
future. The technical clarification in today's final rule does not
change the type of new or expanded highway projects that would require
PM_2.5 or PM₁₀ hot-spot analyses for
transportation conformity purposes; we are simply clarifying the
provision through a grammatical change.
---------------------------------------------------------------------------

    \12\ For additional information about PM_2.5 and
PM₁₀ hot-spot analysis requirements, including
regulations, guidance, and Q and As, see EPA's and DOT's Web sites
at: http://www.epa.gov/otaq/stateresources/transconf/index.htm and
http://www.fhwa.dot.gov/environment/conform.htm.

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

F. Minor Revision for Terms Used To Describe Transportation Plan Revisions

    EPA is finalizing 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 changing references for transportation plan
``revision(s)'' to be transportation plan ``amendment(s),'' to be
consistent with the revised planning definitions in DOT's February 14,
2007, final transportation planning regulations (72 FR 7224). Today's
changes provide consistency between how mid-cycle transportation plan
and TIP changes are currently described in the conformity rule. The
revision does 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) does not
necessitate a conformity SIP revision. Three commenters supported the
changes.

G. Minor Revision to Reference for Public Consultation Provision

    EPA is updating a reference 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 now refers
to 23 CFR 450.316(a) of DOT's transportation planning regulations,
which describes how public involvement occurs during the development of
transportation plans and TIPs. 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 final rule reflects this change in DOT's
transportation planning regulations. Three commenters supported this
change.
    This revision does not change the substantive requirements for the
public consultation requirements for conformity determinations. In
addition, today's change does not cause states to revise their
conformity SIPs, since the revision 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.

XII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.

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 parts 51.390 and 93 to areas that are designated nonattainment
and those redesignated to attainment after 1990 (``maintenance areas''
with SIPs developed under Clean Air Act section 175A) for
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. 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 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 PM_2.5 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 PM_2.5 National Ambient Air Quality
Standards,'' with OMB control number 2060-0561, EPA ICR number 2130.02.
EPA is currently revising its ICR to cover all transportation
conformity burden (EPA ICR No. 2130.03, OMB Control No. 2060-0561), and
this ICR will incorporate the efficiencies in today's final rule.
    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

[[Page 4437]]

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 final rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
regulation directly affects federal agencies and metropolitan planning
organizations that, by definition, are designated under federal
transportation laws only for metropolitan areas with a population of at
least 50,000. These organizations do not constitute small entities
within the meaning of the Regulatory Flexibility Act.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures 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 rule 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 rule is to 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 were intended to reduce the burden of demonstrating conformity in
designated nonattainment and maintenance areas subject to conformity
requirements. Thus, although this rule 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 rule is not subject to the requirements of
sections 202 and 205 of the UMRA and EPA has not prepared a statement
with respect to budgetary impacts.
    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 rule 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 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 rule merely establishes and revises 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.

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

    Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (59 FR 22951, 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

[[Page 4438]]

government and the Indian tribes, or on the distribution of power and
responsibilities between the federal government and Indian tribes.''
    Today's amendments to the conformity rule do not significantly or
uniquely affect the communities of Indian tribal governments, as the
Clean Air Act requires transportation conformity to apply in any area
that is designated nonattainment or maintenance by EPA. This rule
amends 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 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 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 rule is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this rule 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 No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 25, 2008.

List of Subjects in 40 CFR Parts 51 and 93

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

    Dated: January 9, 2008.
Stephen L. Johnson,
Administrator.

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

PART 51--[AMENDED]

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

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart T--[Amended]

• 2. An authority citation for subpart T of part 51 is added to read as
follows:

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

• 3. 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

[[Page 4439]]

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),
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). 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]

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

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

• 5. 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]

• 6. Section 93.102 is amended as follows:
• a. In paragraph (b)(2)(v), by removing ``sulfur oxides
(SO_X)'' and adding in its place ``sulfur dioxide
(SO₂)''; and
• b. In paragraph (b)(4), removing ``for 20 years from the date EPA
approves the area's request under section 107(d) of the CAA for
redesignation to attainment'' and adding in its place ``through the
last year of a maintenance area's approved CAA section 175A(b)
maintenance plan''.

• 7. 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) * * *
    (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 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]

• 8. Section 93.105 is amended by removing ``revisions or'' in paragraph
(c)(1)(v), and by removing the reference ``23 CFR 450.316(b)'' in
paragraph (e) and adding in its place ``23 CFR 450.316(a)''.

• 9. Section 93.106 is amended as follows:
• a. By revising the section heading;

[[Page 4440]]

• 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
extend at least to the latest of the following years:
    (A) The tenth year of the transportation plan;
    (B) The latest year for which an adequate or approved motor vehicle
emissions budget(s) is established in the submitted or applicable
implementation plan; 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]

• 10. Section 93.109 is amended as follows:
• a. By revising the introductory text of paragraph (e)(2);
• b. By removing paragraph (e)(2)(v); and
• c. By revising paragraph (l)(2)(i):

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

* * * * *
    (e) * * *
    (2) Prior to paragraph (e)(1) of this section applying, the
following test(s) must be satisfied:
* * * * *
    (1) * * *
    (2) * * *
    (i) When the requirements of Sec. Sec.  93.106(d), 93.116, 93.118,
and 93.119 apply to isolated rural nonattainment and maintenance areas,
references to ``transportation plan'' or ``TIP'' should be taken to
mean those projects in the statewide transportation plan or statewide
TIP which are in the rural nonattainment or maintenance area. 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.

• 11. 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.
* * * * *

• 12. 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.

• 13. Section 93.116(a) is amended in the fourth sentence by removing
``(or regional emissions analysis)''.

• 14. Section 93.118 is amended as follows:
• 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).

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

[[Page 4441]]

extends beyond the timeframe of the conformity determination).
* * * * *

• 15. Section 93.119 is amended as follows:
• a. In paragraph (f)(10), by removing ``SO_X'' and adding
``SO₂'' in its place;
• 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.
* * * * *

• 16. 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) * * *
    (2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, only projects in the
first four years of the currently conforming transportation plan and
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 first four
years of the currently conforming transportation plan and 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.
* * * * *

• 17. 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
* * * * *
• 18. 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 (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]

• 19. Table 2 in Sec.  93.126 is amended under the heading ``Safety'' as
follows:
• a. By removing the entry ``Hazard elimination program'' and adding in
its place ``Projects that correct, improve, or eliminate a hazardous
location or feature'';
• b. By removing the entry ``Safety improvement program'' and adding in
its place ``Highway Safety Improvement Program implementation''; and
• c. By removing the entry ``Pavement marking demonstration'' and adding
in its place ``Pavement marking''.

[FR Doc. E8-597 Filed 1-23-08; 8:45 am]
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