Transportation Conformity Rule Amendments: Miscellaneous Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5284-5]

RIN 2060-AF95

Transportation Conformity Rule Amendments: Miscellaneous

Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes in this action to make several changes to its

current regulation requiring certain transportation actions to conform

to the state's air quality plan. This action proposes to amend the

November 24, 1993, transportation conformity rule in order to allow

transportation control measures (TCMs) to proceed even if the

conformity status of the transportation plan and program has lapsed,

provided the TCM is included in an approved state implementation plan

or federal implementation plan and was included in a previously

conforming transportation plan and program. Such TCMs would be halted

under the existing transportation conformity rule should a conformity

lapse occur.

This proposal would also extend the grace period before which areas

must determine conformity to a submitted control strategy

implementation plan. This extension would provide relief most

immediately to some moderate and above ozone nonattainment areas, for

which conformity otherwise would lapse on November 15, 1995, should

such areas fail to demonstrate conformity.

This action proposes to align the date of conformity lapse with the

date of application of Clean Air Act highway sanctions for any failure

to submit or submission of an incomplete control strategy state

implementation plan (SIP).

This proposal would also correct the nitrogen oxides (NOX)

provisions of the transportation conformity rule consistent with

previous commitments made by EPA in Federal Register notices concerning

transportation conformity NOX waivers. This proposal to change the

statutory authority for NOX waivers is also published as an

interim final rule in the final rule section of today's Federal

Register, and is effective immediately.

Finally, this action proposes to establish a grace period before

which transportation plan and program conformity must be determined in

newly designated nonattainment areas; clarify certain wording; and make

certain technical corrections.

EPA proposes that a transportation conformity SIP revision

consistent with these amendments would be required to be submitted to

EPA by 12 months following the date of publication of the final rule.

DATES: Comments on this action must be received by September 28, 1995.

ADDRESSES: Interested parties may submit written comments (in

duplicate, if possible) to: Air and Radiation Docket and Information

Center, U.S. Environmental Protection Agency, Attention: Docket No. A-

95-05, 401 M Street, S.W., Washington, DC 20460.

Materials relevant to this proposal have been placed in Public

Docket A-95-05 by EPA. The docket is located at the above address in

room M-1500 Waterside Mall (ground floor) and may be inspected from 8

a.m. to 4 p.m., Monday through Friday, including all non-government

holidays.

FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Emission Control

Strategies Branch, Emission Planning and Strategies Division, U.S.

Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI

48105. (313) 668-4441.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Background on Transportation Conformity Rule

II. Transportation Control Measures (TCMs)

III. Requirement to Redetermine Conformity to Submitted Control

Strategy SIP

IV. Grace Period for Use of Submitted Motor Vehicle Emissions

Budgets

V. Alignment With Clean Air Act Highway Sanctions

VI. Applicability of Nitrogen Oxides (NOX) Provisions

VII. Grace Period for Newly Designated Nonattainment Areas

VIII. Wording Clarifications to 40 CFR 51.448 and 93.128

IX. Technical Corrections to 40 CFR 51.452 and 93.130

X. Conformity SIPs

XI. Administrative Requirements

I. Background on Transportation Conformity Rule

The transportation conformity rule, ``Criteria and Procedures for

Determining Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Funded or Approved Under

Title 23 U.S.C. or the Federal Transit Act,'' was published November

24, 1993, (58 FR 62188) and amended 40 CFR parts 51 and 93. The Notice

of Proposed Rulemaking was published on January 11, 1993 (58 FR 3768).

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Required under section 176(c) of the Clean Air Act, as amended in

1990, the transportation conformity rule established the criteria and

procedures by which the Federal Highway Administration, the Federal

Transit Administration, and metropolitan planning organizations

determine the conformity of federally funded or approved highway and

transit plans, programs, and projects to SIPs. According to the Clean

Air Act, federally supported activities must conform to the

implementation plan's purpose of attaining and maintaining the national

ambient air quality standards.

On February 8, 1995, EPA published an interim final rule entitled,

``Transportation Conformity Rule Amendments: Transition to the Control

Strategy Period.'' This interim final rule, which was effective

immediately and applied until August 8, 1995, aligned the dates of

certain adverse consequences that are imposed by the transportation

conformity rule with the date that Clean Air Act section 179(b) highway

sanctions become effective. A proposal to make the alignment of these

dates permanent was also published February 8, 1995, and the final rule

was published **.

Since publication of the transportation conformity rule in November

1993, EPA, DOT, and state and local air and transportation officials

have had considerable experience implementing the criteria and

procedures in the rule. It is that mutual experience which leads to the

amendments which EPA is proposing today. In each case, the amendments

are needed to clarify ambiguities, correct errors, or make the

conformity process more logical and feasible.

EPA intends to propose further amendments to the transportation

conformity rule to address concerns raised by conformity stakeholders,

such as the build/no-build test, non-federal projects, adding projects

between plan/TIP cycles, and rural nonattainment areas.

II. Transportation Control Measures (TCMs)

A. Background

The November 1993 transportation conformity rule does not allow

TCMs to be federally funded, accepted, or approved without a conforming

transportation plan and transportation improvement program (TIP) in

place.

Clean Air Act sections 176(c)(2) (C) and (D) require that

conforming transportation plans and TIPs be used to determine whether

projects are in conformity. According to the November 1993

transportation conformity rule, the only federally funded or approved

projects which may proceed in the absence of a conforming plan and TIP

are those which have already been found to conform and those which the

rule exempts because of their de minimis emission impacts. TCMs in

general are not exempt projects.

EPA acknowledged in the preamble to the final rule that it may

appear intuitively counterproductive to delay transportation projects

which benefit air quality just because an area is unable to develop a

conforming transportation plan and TIP. However, EPA asserted that

allowing project-by-project approvals in the absence of a conforming

transportation plan and TIP is contrary to the underlying philosophy

that transportation actions must be planned and evaluated for emissions

effects in the aggregate and for the long term. If TCMs proceeded

outside the context of the transportation plan and TIP, EPA feared that

there would be no assurance that the analysis of reasonable

alternatives had been properly conducted and that the effect of the TCM

on the flow within the network had been properly accounted for.

Furthermore, EPA stated its concern that allowing TCMs to proceed

without a conforming transportation plan and TIP may undermine the

cooperative transportation planning process. All constituencies should

have a stake in the development of a conforming transportation plan and

TIP, particularly given that compromises and tradeoffs among involved

parties are often necessary.

B. Description of Proposal for TCMs

This proposal would allow TCMs which are in an approved SIP and

have been included in a previously conforming transportation plan and

TIP to proceed even if the conformity status of the current

transportation plan or TIP lapses. Specifically, it would allow a

project-level conformity determination to be made for a TCM

specifically included in an approved SIP even if there were no

currently conforming transportation plan and TIP in place (as presently

required by 40 CFR 51.420 and 93.114), provided that the TCM was

previously included in a conforming plan and TIP and all other relevant

criteria for a project from a transportation plan and TIP have been

satisfied (e.g., hot-spot analysis was performed as necessary).

According to this proposal, a TCM that had been included in a

conforming plan and TIP would be considered to come from a plan and TIP

(as required by 40 CFR 51.422 and 93.115) even if the conformity status

of that transportation plan and TIP had subsequently lapsed. However,

the other requirements in 40 CFR 51.422 and 93.115 defining what

projects ``come from'' a transportation plan and TIP would continue to

apply, including the requirement that the project's design concept and

scope have not changed significantly from those which were described in

the transportation plan/TIP.

C. Rationale

Even if an area's conformity status lapses, this proposal would

allow work to continue on TCMs which have completed the metropolitan

transportation planning process and are included in an approved SIP,

but have not completed the National Environmental Policy Act process.

EPA believes that it would be counterproductive to overcoming future

difficulties in demonstrating conformity to halt progress on a TCM

which has been approved through the air quality planning process and

has met the metropolitan transportation planning process' requirements.

Such a TCM has been endorsed by both the transportation and air quality

communities as a project beneficial for air quality, and stopping its

progress would make it more difficult to implement the SIP, develop a

revised plan and TIP which can be found to conform, and attain the

national ambient air quality standards.

EPA's previously expressed concerns about allowing TCMs to proceed

in the absence of a conforming transportation plan and TIP do not apply

in the context of this proposal, because this proposal's applicability

is limited to TCMs which have been in a conforming transportation plan

and TIP. Such TCMs have been considered in the long term and in the

aggregate, in the context of the transportation plan and TIP and the

cooperative transportation planning process. This amendment would not

allow TCMs to circumvent the metropolitan transportation planning

process; it would simply prevent the consequences of conformity

failures from disrupting further project development activities for the

implementation of TCMs.

Furthermore, EPA believes that this proposal is consistent with the

Clean Air Act conformity provisions. Conformity is defined in Clean Air

Act section 176(c)(1) as conformity to the implementation plan's

purpose. Accordingly, implementation of a measure specifically included

in the implementation plan should conform.

[[Page 44792]]

The subsequent requirement in section 176(c)(2)(C)(i) for a project to

come from a conforming plan and program is an elaboration of the

general definition in section 176(c)(1) and should not prevent actions

obviously consistent with the general definition from proceeding.

D. Impact

At the present time, few control strategy SIPs (e.g., attainment

demonstrations, 15% volatile organic compound emission reduction SIPs)

have been approved by EPA. As a result, there are currently few TCMs

which would be affected by this proposal. However, EPA expects that in

the future there will be a number of TCMs which are included in an

approved SIP and have been included in a conforming transportation plan

and TIP which might be jeopardized by subsequent plan/TIP conformity

lapses.

In particular, major highway and transit infrastructure projects

which have been designated as TCMs in the SIP frequently have a lengthy

period for project planning and development, including the federal

environmental review. As a result, these major infrastructure

investments are especially susceptible to being delayed by future

lapses in transportation plan and TIP conformity status, despite their

role in contributing to the conformity status of previously approved

transportation plans and TIPs. This proposal would allow such projects

to complete the project development process even if subsequent

conformity difficulties caused an area's plan or TIP conformity status

to lapse.

III. Requirement to Redetermine Conformity to Submitted Control

Strategy SIP

A. Background

40 CFR 51.448(a)(1) and 93.128(a)(1) require the transportation

plan and TIP to be found to conform to a submitted control strategy SIP

revision within one year from the date the Clean Air Act requires its

submission. Thus, in areas required to submit ozone attainment/3% rate-

of-progress SIPs, which were generally due November 15, 1994, the

current transportation conformity rule requires conformity to those

SIPs to be determined by November 15, 1995, or else conformity status

will lapse.

B. Description of Proposal

This proposal would amend 40 CFR 51.448(a)(1) and 93.128(a)(1) to

allow areas 18 months to determine conformity, starting from the date

of the State's initial submission to EPA of a control strategy SIP

revision establishing a motor vehicle emissions budget. If conformity

is not demonstrated within 18 months following such submission, the

conformity status of the transportation plan and TIP will lapse, and no

new project-level conformity determinations may be made.

This deadline for determining conformity to a submitted control

strategy SIP would apply to the initial submission of each type of

control strategy SIP. Ozone 15% SIPs, ozone 3% rate-of-progress SIPS,

and attainment demonstrations (for any pollutant) are all control

strategy SIPs whose initial submission would require conformity to be

determined within 18 months.

The 18-month time period for determining conformity would not be

affected by subsequent changes to the submitted control strategy SIP.

For example, if within the 18-month period the initial submission is

revised before conformity has been determined, the 18-month clock would

not be restarted. However, when conformity is eventually determined,

the relevant motor vehicle emissions budget must be used. If conformity

to the initial submission has been demonstrated and that submission is

subsequently revised, no 18-month clock would be started until, as

required in Sec. 51.400(a)(3) (93.104(a)(3)), ``Frequency,'' the SIP is

approved by EPA.

C. Rationale

This proposal is consistent with the existing transportation

conformity rule in that it imposes a one-time requirement to determine

conformity after the initial submission of a control strategy SIP. EPA

is proposing to redefine the beginning and length of the grace period

before conformity to a newly submitted SIP must be demonstrated in

order to be consistent with flexibility EPA is allowing on submission

deadlines for ozone attainment SIPs.

EPA has provided flexibility regarding the deadline for submission

of ozone attainment/3% SIPs because of unavoidable delays in their

development (see March 2, 1995, memorandum from Mary D. Nichols,

Assistant Administrator for Air and Radiation, to EPA Regional

Administrators, titled, ``Ozone Attainment Demonstrations''). The

existing conformity rule requires conformity to these SIPs to be

determined by November 15, 1995, but many ozone areas have not even

submitted such SIPs yet. As a result, EPA believes it is more

appropriate to begin the grace period with a State's actual submission,

rather than the Clean Air Act deadline for submission.

In addition, EPA is proposing to extend the grace period from 12

months to 18 months because experience with the existing conformity

rule indicates that 18 months is a more reasonable timeframe. Also, the

18-month grace period is consistent with the grace period allowed in 40

CFR 51.400 and 93.104 after publication of the final rule and after EPA

approval of control strategy SIP revisions.

EPA notes that there is a possibility that the agency will be

unable to complete final rulemaking on these proposed amendments by

November 15, 1995, in light of the date of this proposal and the need

to respond to any comments submitted on the proposal. However, EPA

believes that even should this proposed change not be effective by

November 15, 1995, the conformity status of plans and TIPs would not

lapse for certain areas taking advantage of the flexibilities provided

in the March 2, 1995, memorandum. This is because in the March 2

memorandum EPA interpreted the statute as not requiring such areas to

submit attainment demonstrations on November 15, 1994.

In the March 2 memorandum, EPA acknowledged that circumstances

beyond the control of the States had precluded the States from

completing the SIP submittals within the deadline (November 15, 1994)

prescribed in the Act. Moreover, the deadline had passed and States

could not reasonably be expected to complete the submissions in the

immediate future. EPA emphasized that much of the problem stemmed from

technical issues that arose in compiling the inventories and conducting

modeling, particularly in light of the complexities of accounting for

ozone transport.

In light of this unique situation, EPA implemented the statutory

requirements for SIP submissions in a more flexible manner. EPA, in

effect, extended the submission date and established new, staggered

submission deadlines for various components of the required submittals.

The lapsing provisions of the current conformity rule impose a lapse

one year from the date the Clean Air Act requires submission of a

control strategy implementation plan revision. Since under EPA's

interpretation of the Act in the circumstances just described the

statute does not require submissions for such states in November 1994,

the conformity status of plans and TIPs in such areas will not lapse in

November 1995, but rather would lapse one year from the various dates

described in the March 2, 1995, policy referred to above. Prior to any

of those dates, EPA will

[[Page 44793]]

have ample time to complete final action on the rule change proposed

today.

However, those areas which are not taking advantage of the

flexibility of the March 2 memorandum are still required under the

current rule to determine conformity by November 15, 1995. These areas

will lapse on November 15, 1995, if final action on this proposal is

not effective by then and they have not determined conformity.

D. Effect on Deadline to Determine Conformity to Submitted 15% SIPs

The current conformity rule requires conformity to submitted 15%

SIPs to be demonstrated by November 15, 1994. Conformity status in some

areas has already lapsed because of failure to meet this deadline. This

proposal would affect the deadline to determine conformity to submitted

15% SIPs in only a very few areas, because most 15% SIPs were submitted

more than 18 months ago. For the few areas that submitted very late 15%

SIPs, this proposal would extend by a few months the time allowed to

demonstrate conformity to the 15% SIP.

IV. Grace Period for Use of Submitted Motor Vehicle Emissions

Budgets

This proposal would clarify the existing transportation conformity

rule's 90-day grace period before motor vehicle emissions budgets in

newly submitted control strategy SIPs are required to be used to

demonstrate conformity (presently section 51.448(a)(1)(ii) and

93.128(a)(1)(ii)).

This proposal clarifies that although areas are not required to use

motor vehicle emissions budgets in the first 90 days following their

submission, they may do so if EPA agrees the budgets are adequate for

transportation conformity purposes. Newly submitted motor vehicle

emissions budgets are required to be used in transportation conformity

determinations beginning 90 days after their submission, provided EPA

has not rejected the use of such submitted budgets for the purposes of

transportation conformity.

V. Alignment With Clean Air Act Highway Sanctions

A. Description of Proposal

This proposal would not impose a transportation plan/TIP conformity

lapse as a result of failure to submit or submission of an incomplete

ozone, CO, PM-10, or NO2 control strategy SIP until the date that

Clean Air Act section 179(b) highway sanctions are applied as a result

of such failure.

The February 8, 1995, interim final rule aligned transportation

plan/TIP conformity lapse with application of Clean Air Act highway

sanctions only in the cases of incomplete 15% SIPs with protective

findings, failure to submit or submission of incomplete ozone

attainment/3% SIPs, and disapproval of control strategy SIPs with a

protective finding. This proposal would also align with application of

Clean Air Act highway sanctions the conformity lapse resulting from

failure to submit a 15% SIP, submission of an incomplete 15% SIP

without a protective finding, and failure to submit or submission of an

incomplete CO, PM-10, or NO2 attainment SIP.

This proposal would not align the conformity lapse resulting from

disapproval of a control strategy SIP without a protective finding. EPA

will continue to consider this issue in the context of future

conformity rule amendments addressing conformity stakeholders'

concerns.

B. Rationale

EPA did not previously propose to align the conformity lapse in the

cases of failure to submit a 15% SIP or incomplete 15% SIP without a

protective finding because in these cases there is no other motor

vehicle emissions budget to be used for the purposes of demonstrating

transportation conformity. Since the February 8, 1995, interim final

rule, EPA has made protective findings for all incomplete 15% SIPs, and

areas which failed to submit required 15% SIPs are expected to submit

such SIPs very shortly. As a result, aligning conformity lapse with

highway sanctions for these cases will have no real impact, and by

aligning conformity lapse for all ozone control strategy SIPs, the

complexity of the regulatory text is greatly reduced.

EPA did not previously propose to align conformity lapse with

application of highway sanctions for failure to submit or submission of

incomplete CO, PM-10 and NO2 attainment SIPs because there were no

such SIP failures, and these cases therefore did not qualify for the

interim final rule's emergency exception to the Administrative

Procedures Act. The CO, PM-10 and NO2 attainment SIPs required to

date are complete, and there are some PM-10 attainment SIPs which are

not due yet. Aligning conformity lapse and highway sanctions for these

control strategy SIPs would reduce the complexity of the conformity

regulation and is not anticipated to have any other significant impact.

C. Federal Implementation Plans (FIPs)

This proposal would prevent or remove the conformity lapse imposed

as a result of a control strategy SIP failure on the date EPA

promulgates a FIP with motor vehicle emissions budget(s) addressing

that failure. Promulgation of a FIP with motor vehicle emissions

budget(s) would serve as an appropriate basis for conformity

determinations. EPA does not believe it is appropriate to impose a

conformity lapse where a budget is in place against which conformity

can be assessed. Moreover, nothing in section 176(c) suggests that such

a lapse would be appropriate.

VI. Applicability of Nitrogen Oxides (NOx) Provisions

A. Background

Clean Air Act section 176(c)(3)(A)(iii) requires that

transportation plans and TIPs contribute to emissions reductions in

ozone and carbon monoxide areas before control strategy SIPs are

approved. This requirement is implemented in 40 CFR 51.436 through

51.440 (and 93.122 through 93.124), which establishes the so-called

``build/no-build test.'' This test requires a demonstration that the

``Action'' scenario (representing the implementation of the proposed

transportation plan/TIP) will result in lower motor vehicle emissions

than the ``Baseline'' scenario (representing the implementation of the

current transportation plan/TIP). In addition, the ``Action'' scenario

must result in emissions lower than 1990 levels.

The November 1993 final transportation conformity rule does not

require the build/no-build test and less-than-1990 test for NOx as an

ozone precursor in ozone nonattainment areas where the Administrator

determines that additional reductions of NOx would not contribute to

attainment. Clean Air Act section 176(c)(3)(A)(iii), which is the

conformity provision requiring contributions to emission reductions

before SIPs with emissions budgets are approved, specifically

references Clean Air Act section 182(b)(1). That section requires

submission of State plans that, among other things, provide for

specific annual reductions of VOC and NOx emissions ``as necessary'' to

attain the ozone standard by the applicable attainment date. Section

182(b)(1) further states that its requirements do not apply in the case

of NOx for those ozone nonattainment areas for which EPA determines

that additional reductions of NOx would not contribute to attainment.

On June 17, 1994 (59 FR 31238), EPA issued guidance in the form of

a general preamble specifically focusing on how the agency intended to

process

[[Page 44794]]

conformity NOx waiver requests for nonclassifiable ozone nonattainment

areas located outside the Ozone Transport Region. For other ozone

nonattainment areas, the process for submitting waiver requests and the

criteria used to evaluate them are explained in the December 1993 EPA

document ``Guidelines for Determining the Applicability of Nitrogen

Oxides Requirements Under Section 182(f),'' and the May 27, 1994, and

February 8, 1995, memoranda from John S. Seitz, Director of the Office

of Air Quality Planning and Standards, to Regional Air Division

Directors, entitled ``Section 182(f) NOx Exemptions--Revised Process

and Criteria.''

B. Applicability of Motor Vehicle NOx Emission Budgets Following a NOx

Waiver

This proposal would make it clear that consistency with NOx motor

vehicle emissions budgets in control strategy SIPs and maintenance

plans is still required in ozone nonattainment or maintenance areas

which previously received a conformity NOx waiver. Although the NOx

build/no-build test and less-than-1990 test would not apply for ozone

nonattainment areas with a conformity NOx waiver, consistency with the

NOx motor vehicle emissions budget in a submitted control strategy SIP

(e.g., attainment demonstration) or approved maintenance plan would be

required for transportation conformity demonstrations, regardless of

the conformity NOx waiver. Before approving any conformity NOx waivers,

EPA stated in the June 17, 1994, Federal Register notice that EPA

intended to propose to amend the transportation conformity rule in this

manner. In addition, the Natural Resources Defense Council, on behalf

of several environmental groups, commented on this issue during EPA's

rulemaking process for granting area-specific NOx waivers, and EPA in

its response to comments acknowledged the error in EPA's transportation

conformity rule and stated EPA's intent to propose amending the rule.

Although when EPA promulgated the November 24, 1993, final

conformity rule EPA intended the conformity NOX waiver to provide

relief from the NOX build/no-build test only, due to a drafting

oversight in the final conformity rule, none of the provisions related

to NOX apply under that rule if an area had received a conformity

NOX waiver. This proposal would delete the phrase ``unless the

Administrator determines that additional reductions of NOX would

not contribute to attainment'' in the ``Applicability'' section of the

rule (40 CFR 51.394(b)(3)(i) and 93.102(b)(3)(i)) and in the ``Motor

vehicle emissions budget (transportation plan)'' section (40 CFR

51.428(b)(1)(ii) and 93.118(b)(1)(ii)). A revised version of this

phrase would be retained only in the sections requiring the build/no-

build and less-than-1990 tests, in order to continue to allow relief

from that requirement if a NOX waiver is granted, consistent with

EPA's original intent.

EPA is proposing this change in order to properly implement the

Clean Air Act. The requirement for consistency with the SIP's motor

vehicle emissions budget is required in section 176(c)(2)(A) of the

conformity provisions. That section specifically requires conformity

determinations to show that ``emissions expected from implementation of

plans and programs are consistent with estimates of emissions from

motor vehicles and necessary emission reductions contained in the

applicable implementation plan.'' SIP demonstrations of reasonable

further progress, attainment, and maintenance contain these emissions

estimates and ``necessary emission reductions.'' Since the Act

specifically requires an emissions-based comparison between the

transportation plan/TIP and the SIP, EPA believes the emissions budget

is the appropriate mechanism for carrying out the demonstration of

consistency. This is true even with respect to regional-scale

pollutants, since the air quality analysis in the SIP can be relied

upon to show that the SIP emission levels will not cause or exacerbate

violations.

EPA believes that it is crucial for areas with attainment

demonstrations or maintenance plans to demonstrate consistency with the

NOX motor vehicle emissions budgets in those plans in order to

demonstrate conformity with the SIP. EPA requires ozone attainment

demonstrations and most ozone maintenance plans to include estimates of

NOX emissions in order to adequately demonstrate attainment of the

ozone standard by the Clean Air Act deadline or maintenance of the

ozone standard. The resulting motor vehicle NOX emissions budgets

may not necessarily represent reductions in motor vehicle NOX

emissions, but these budgets are the motor vehicle NOX emission

levels consistent with attainment and/or maintenance, and they must not

be exceeded.

C. Authority for NOX Waivers and Process for Application and

Approval

1. Change in Authority From Clean Air Act Section 182(f) to 182(b)(1)

This proposal would also change the conformity rule's reference to

Clean Air Act section 182(f) as the authority for waiving the NOX

build/no-build and less-than-1990 tests for certain areas based on

EPA's determination that additional reductions of NOX would not

contribute to attainment. This change is also made in an interim final

rule that is published in the ``Final rules'' section of today's

Federal Register and is effective immediately.

As described in paragraph V.A. ``Background,'' above, the stated

authority for such a determination to provide relief from the interim-

reductions requirements of the Clean Air Act is actually Clean Air Act

section 182(b)(1), which is specifically referenced in section

176(c)(3)(A)(iii) of the conformity provisions. The Natural Resources

Defense Council brought this to EPA's attention in its comments on

EPA's rulemakings for area-specific NOX waivers.

EPA agrees with the commenters, but also notes that section

182(b)(1), by its terms, only applies to moderate and above ozone

nonattainment areas. Consequently, EPA believes that the interim-

reductions requirements of section 176(c)(3)(A)(iii), and hence the

authority provided in section 182(b)(1) to grant relief from those

interim-reductions requirements, apply only with respect to those areas

that are subject to section 182(b)(1). As explained further below, for

areas not subject to section 182(b)(1) (e.g., marginal and below ozone

nonattainment areas), EPA intends to continue to apply the

transportation conformity rule's build/no-build test and less-than-1990

tests for purposes of implementing the requirements of section

176(c)(1), and EPA intends to continue to provide relief from these

requirements under section 182(f). In addition, because general federal

actions are not subject to section 176(c)(3)(A)(iii), which explicitly

references section 182(b)(1), EPA will also continue to offer relief

under section 182(f) from the applicable NOX requirements of the

general conformity rule.

In order to demonstrate conformity, transportation-related federal

actions that are taken in ozone nonattainment areas not subject to

section 182(b)(1) (and hence, not subject to section 176(c)(3)(A)(iii))

must still be consistent with the criteria specified under section

176(c)(1). Specifically, these actions

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must not, with respect to any standard, cause or contribute to new

violations, increase the frequency or severity of existing violations,

or delay attainment. In addition, such actions must comply with the

relevant requirements and milestones contained in the applicable SIP,

such as reasonable further progress schedules, assumptions specified in

the attainment or maintenance demonstration, numerical emissions limits

or prohibitions. EPA believes that the build/no-build and less-than-

1990 tests provide an appropriate basis for such areas to demonstrate

compliance with the above criteria.

As stated earlier, EPA intends to continue to offer relief under

section 182(f) from the interim NOX requirements of the conformity

rules that would apply under section 176(c)(1) for the areas not

subject to section 182(b)(1). EPA believes this approach is consistent

both with the way NOX requirements in ozone nonattainment areas

are treated under the Act generally, and under section 182(f) in

particular. The basic approach of the Act is that NOX reductions

should apply when beneficial to an area's attainment goals, and should

not apply when unhelpful or counterproductive. Section 182(f) reflects

this approach but also includes specific substantive tests which

provide a basis for EPA to determine when NOX requirements should

not apply. There is no substantive difference in the technical analysis

required to make an assessment of NOX impact on attainment in a

particular area with respect to mobile source or stationary source

NOX emissions. Moreover, where EPA has determined that NOX

reductions will not benefit attainment or would be counterproductive in

an area, the Agency believes it would be unreasonable to insist on

NOX reductions for purposes of meeting reasonable further progress

or other milestone requirements. Thus, even as to the conformity

requirements of section 176(c)(1), EPA believes it is reasonable and

appropriate, first, to offer relief from the applicable NOX

requirements of the general and transportation conformity rules in

areas where such reductions would not be beneficial and, second, to

rely in doing so on the exemption tests provided in section 182(f).

2. Implications of Change in Statutory Authority

The change in authority for granting NOX waivers from section

182(f) to section 182(b)(1) for areas subject to section 182(b)(1) has

different impacts depending on whether the petitioning area is relying

on ``clean'' air quality data or on modeling data. According to EPA's

current information, almost all areas which intended to request a

conformity NOX waiver have already applied. Most areas that are

eligible for a conformity NOX waiver on the basis of ``clean

data'' have already applied for (and in most cases, received) their

waivers. There are less than ten areas which are eligible for a ``clean

data'' conformity NOX waiver but which have not applied and do not

have a pending redesignation request.

Moderate and above ``clean data'' areas that have pending

redesignation requests and are subject to section 182(b)(1) could be

relieved of the NOX build/no-build and less-than-1990 tests under

section 182(f) when EPA takes final action implementing its recently-

issued policy concerning, among other things, the applicability of

section 182(b)(1) requirements for the areas that are demonstrating

attainment of the ozone standard based on ``clean data.'' The May 10,

1995, memorandum from John Seitz, Director of EPA's Office of Air

Quality Planning and Standards, entitled ``Reasonable Further Progress,

Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard,'' should be referred to for a more thorough discussion. The

aspect of the policy that is relevant here is EPA's determination that

the section 182(b)(1) provisions regarding reasonable further progress

and attainment demonstrations may be interpreted so as not to require

the SIP submissions otherwise called for in section 182(b)(1) if an

ozone nonattainment area that would otherwise be subject to those

requirements is in fact attaining the ozone standard (i.e., attainment

of the standard is demonstrated with three consecutive years of

complete, quality-assured air-quality monitoring data). Any such

``clean data'' areas, under this interpretation, would no longer be

subject to the requirements of section 182(b)(1) once EPA takes final

rulemaking action adopting the interpretation in conjunction with its

determination that the area has attained the standard. At that time,

such areas would be treated like ozone nonattainment areas classified

marginal and below, and hence eligible for NOX waivers from the

interim-period transportation conformity requirements by obtaining a

waiver under section 182(f), as described above.

For moderate and above ozone nonattainment areas which are relying

on modeling data in petitioning for a transportation conformity

NOX exemption, the proposed change affects the process for

applying for such waivers. Unlike section 182(f)(3), section 182(b)(1)

requires that EPA approve a NOX waiver (i.e., determine that

additional reductions of NOX would not contribute to attainment)

as part of a SIP revision. In discussing the NOX (and VOC)

reductions required under its provisions, section 182(b)(1) states that

SIP revisions must be submitted which provide for ``such specific

annual reductions in emissions of volatile organic compounds and oxides

of nitrogen as necessary to attain the national primary ambient air

quality standard for ozone'' by the applicable attainment date. The

requirement does not apply in the case of NOX if the EPA makes a

determination that additional reductions of NOX would not

contribute to attainment. The Act also states that this determination

must be made ``when the Administrator approves the plan or plan

revision.'' The phrase ``the plan or plan revision'' clearly refers to

the plan required under this subsection that must provide for the

specific annual VOC and NOX reductions determined to be necessary

for the area to attain the ozone national ambient air quality standard.

EPA believes, consistent with its existing NOX exemption guidance,

that this language can be interpreted to encompass approvals of SIP

submittals containing NOX exemption requests based on adequate

modeling. If the modeling demonstration for such requests is submitted

as part of a SIP revision and provides adequate evidence that for the

relevant area specific additional annual reductions of NOX are not

``necessary'' for that area to attain the NAAQS, EPA believes such a

demonstration would be consistent with the requirements of the NOX

exemption test provided in section 182(b)(1).

3. New Process for Conformity NOX Waiver Application

As discussed in the previous section, under Clean Air Act section

182(b)(1), petitions for transportation conformity NOX waivers for

areas subject to that section must be submitted as formal SIP revisions

by the Governor (or designee) and following a public hearing. As

explained previously, EPA will continue to process and approve under

section 182(f)(3) conformity NOX waivers for areas not subject to

section 182(b)(1), without public hearings or submission by the

Governor.

Except for the requirement for modeling data petitions to be

submitted as part of a SIP revision for ozone areas subject to section

182(b)(1), previous guidance on section 182(f) NOX waivers

continues to apply for the purpose of

[[Page 44796]]

conformity NOX waivers. As described in paragraph V.A.

``Background,'' above, this guidance includes the June 17, 1994 (59 FR

31238), general preamble entitled, ``Conformity; General Preamble for

Exemption for Nitrogen Oxides Provisions,'' the December 1993 EPA

document ``Guidelines for Determining the Applicability of Nitrogen

Oxides Requirements Under Section 182(f),'' and the May 27, 1994, and

February 8, 1995 memoranda from John S. Seitz, Director of the Office

of Air Quality Planning and Standards, to Regional Air Division

Directors, entitled ``Section 182(f) NOX Exemptions--Revised

Process and Criteria.''

EPA believes that the new procedural requirement for a public

hearing and submission by the Governor (or designee) for these ozone

nonattainment areas will not adversely affect states applying for

transportation conformity NOX waivers since only two areas are

awaiting an exemption based on modeling data.

4. General Conformity

As noted earlier, the NOX provisions of the general conformity

rule, ``Determining Conformity of General Federal Actions to State or

Federal Implementation Plans'' (58 FR 63214, November 30, 1993), would

not be affected by this proposal. A NOX waiver under Clean Air Act

section 182(f) removes the NOX general conformity requirements

entirely and would continue to do so. The Clean Air Act's provision for

transportation conformity NOX waivers stems from section

176(c)(3)(A)(iii), which addresses only transportation conformity, and

not general conformity. Therefore, the statutory authority for general

conformity NOX waivers is not required to be Clean Air Act section

182(b) for any areas and may continue to be section 182(f) for all

areas.

VII. Grace Period for Newly Designated Nonattainment Areas

This proposal would allow areas which have been redesignated from

attainment to nonattainment a 12-month grace period after final

redesignation during which to determine the conformity of the

transportation plan and TIP.

Section 176(c)(3)(B)(i) of the Clean Air Act as amended in 1990

allowed a similar grace period for 12 months after the date of

enactment of the Clean Air Act Amendments of 1990. EPA believes it is

appropriate to allow newly designated nonattainment areas this grace

period to determine transportation plan/TIP conformity. Otherwise, no

transportation projects could be found to conform in a newly designated

nonattainment area until the conformity of the transportation plan and

TIP had been demonstrated. Transportation plan/TIP conformity

determinations take time, particularly for an area's first time, and

EPA believes not allowing a grace period would unduly disrupt

implementation of transportation projects.

EPA believes it has authority under Sierra Club v. EPA, 719F.2d 436

(DC Cir. 1983) to provide grandfathering from new requirements where

the new rule is an abrupt departure from prior practice parties have

relied on, the application of the new rule would impose a burden on

parties, and there is not a strong interest in applying the new rule

immediately.

VIII. Wording Clarifications to 40 CFR 51.448 and 93.128

A. Introductory Paragraph (a)(1) of Secs. 51.448 and 93.128

This proposal would clarify EPA's original intention that if

conformity status lapses due to failure to redetermine conformity after

a control strategy SIP submission, that lapse is remedied when

transportation plan and TIP conformity to the new submission is

eventually determined (although lapsing for other reasons would not be

remedied). There is no reason to maintain a conformity lapse once

conformity to a new budget has been demonstrated.

B. Secs. 51.448(g) and 93.128(g)

Paragraph (g) in Secs. 51.448 and 93.128 would be deleted, because

the other amendments in this proposal make paragraph (g)'s

clarifications irrelevant and unnecessary.

IX. Technical Corrections to 40 CFR 51.452 and 93.130

A. Consistency With SIPs

The preamble to the November 1993 transportation conformity rule

states that for all areas there must be consistency between the SIP and

the conformity analysis regarding temperature, season, time period, and

other inputs (58 FR 62195, November 24, 1993). However, this regulatory

requirement is by error stated in section 51.452(b) (93.130(b)), which

applies only to serious, severe, and extreme ozone nonattainment areas

and serious carbon monoxide areas after January 1, 1995.

EPA indicated in an October 14, 1994, memorandum from Philip A.

Lorang to EPA Branch Chiefs entitled ``Transportation Conformity Q &

A's'' that EPA's intent was for this requirement to apply to all areas.

This proposal would redesignate paragraph (b)(5) as paragraph (a)(6),

because paragraph (a) is titled ``General requirements.'' This would

clarify that the provision applies in all areas pursuant to EPA's

original intention as stated in the preamble to the November 1993 rule.

B. Cross-References in Section 51.452(c)(1) and 93.130(c)(1)

As EPA has indicated in the October 14, 1994, ``Transportation

Conformity Q & A's'' memorandum cited above, section 51.452(c)(1)

(93.130(c)(1)), contains two incorrect references to paragraph (a). It

should instead reference paragraph (b) of section 51.452 (93.130).

EPA's intent was to require areas not subject to paragraph (b) (ozone

and CO areas not serious and above or before January 1, 1995) to

continue using the procedures which satisfy some or all of the

requirements of paragraph (b) (applying to serious and above ozone and

CO areas after January 1, 1995) where those procedures have been the

previous practice of the MPO. The current cross-reference does not make

sense because it refers to ``General requirements,'' which apply to all

areas. This proposal would correct the incorrect reference.

X. Conformity SIPs

A conformity SIP revision consistent with these amendments would be

required to be submitted to EPA 12 months from the date of publication

of the final rule. Section 176(c)(4)(C) of the Clean Air Act as amended

in 1990 allowed States 12 months from the promulgation of the original

transportation conformity rule to submit conformity SIP revisions. EPA

believes that it is consistent with the statute to provide states a

similar time period to revise their conformity SIPs.

XI. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or

[[Page 44797]]

State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof;

(4) Raise novel or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in the Executive

Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866. EPA has

submitted this action to OMB for review. Changes made in response to

OMB suggestions or recommendations will be documented in the public

record.

B. Reporting and Recordkeeping Requirements

This rule does not contain any information collection requirements

from EPA which require approval by OMB under the Paperwork Reduction

Act of 1980, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 requires federal agencies to

identify potentially adverse impacts of federal regulations upon small

entities. In instances where significant impacts are possible on a

substantial number of these entities, agencies are required to perform

a Regulatory Flexibility Analysis (RFA).

EPA has determined that today's regulations will not have a

significant impact on a substantial number of small entities. This

regulation affects federal agencies and metropolitan planning

organizations, which by definition are designated only for metropolitan

areas with a population of at least 50,000.

Therefore, as required under section 605 of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation

does not have a significant impact on a substantial number of small

entities.

D. Unfunded Mandates

Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector, or to State,

local, or tribal governments in the aggregate.

EPA has determined that to the extent this rule imposes any mandate

within the meaning of the Unfunded Mandates Act, this final action does

not include a mandate that may result in estimated costs of $100

million or more to State, local, or tribal governments in the aggregate

or to the private sector. This proposal consists of additional

flexibilities and clarifications. Therefore, EPA has not prepared a

statement with respect to budgetary impacts.

List of Subjects

40 CFR Part 51

Environmental protection, Administrative practice and procedure,

Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 93

Administrative practice and procedure, Air pollution control,

Carbon monoxide, Intergovernmental relations, Ozone.

Dated: August 17, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, 40 CFR parts 51 and 93 are

proposed to be amended as follows:

PARTS 51 AND 93--[AMENDED]

1. The authority citation for parts 51 and 93 continues to read as

follows:

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

2. The identical text of Secs. 51.392 and 93.101 is amended by

adding a definition in alphabetical order to read as follows:

Sec. . Definitions.

* * * * *

Protective finding means a determination by EPA that the control

strategy contained in a submitted control strategy implementation plan

revision would have been considered approvable with respect to

requirements for emissions reductions if all committed measures had

been submitted in enforceable form as required by Clean Air Act section

110(a)(2)(A).

* * * * *

3. The identical text of Secs. 51.394 and 93.102 is amended by

revising paragraph (b)(3)(i) and adding paragraph (d) to read as

follows:

Sec. . Applicability.

* * * * *

(b) * * *

(3) * * *

(i) Volatile organic compounds and nitrogen oxides in ozone areas;

* * * * *

(d) Grace period for new nonattainment areas. For areas which have

been in attainment for either ozone, CO, PM-10 or NO2 since 1990

and are subsequently redesignated to nonattainment for any of these

pollutants, the provisions of this subpart shall not apply for 12

months following the date of final designation to nonattainment for

such pollutant.

4. Sec. 51.396(a) is amended by adding a sentence after the second

sentence to read as follows:

Sec. 51.396 Implementation plan revision.

(a) * * * Further revisions to the implementation plan required by

amendments to this subpart must be submitted within 12 months of the

date of publication of final amendments to this subpart.* * *

* * * * *

5. Sec. 51.420 is revised to read as follows:

Sec. 51.420 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. This

criterion applies during all periods. It is satisfied if the current

transportation plan and TIP have been found to conform to the

applicable implementation plan by the MPO and DOT according to the

procedures of this subpart.

(a) Only one conforming transportation plan or TIP may exist in an

area at any time; conformity determinations of a previous

transportation plan or TIP expire once the current plan or TIP is found

to conform by DOT. The conformity determination on a transportation

plan or TIP will also lapse if conformity is not determined according

to the frequency requirements of Sec. 51.400.

(b) This criterion is not required to be satisfied at the time of

project approval for a TCM specifically included in the applicable

implementation plan, provided that the TCM was included in a

transportation plan and TIP previously found to conform, and all other

relevant criteria of this subpart are satisfied.

6. Section 93.114 is revised 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

[[Page 44798]]

approval. This criterion applies during all periods. It is satisfied if

the current transportation plan and TIP have been found to conform to

the applicable implementation plan by the MPO and DOT according to the

procedures of this subpart.

(a) Only one conforming transportation plan or TIP may exist in an

area at any time; conformity determinations of a previous

transportation plan or TIP expire once the current plan or TIP is found

to conform by DOT. The conformity determination on a transportation

plan or TIP will also lapse if conformity is not determined according

to the frequency requirements of Sec. 93.104.

(b) This criterion is not required to be satisfied at the time of

project approval for a TCM specifically included in the applicable

implementation plan, provided that the TCM was included in a

transportation plan and TIP previously found to conform, and all other

relevant criteria of this subpart are satisfied.

7. The identical text of Secs. 51.422 and 93.115 are amended by

adding a sentence to the end of paragraph (a) and by adding paragraph

(d) to read as follows:

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

(a) * * * Special provisions for TCMs are provided in paragraph (d)

of this section.

* * * * *

(d) TCMs. If the conformity status of the transportation plan or

TIP has lapsed, a TCM may be considered to satisfy this criterion if it

meets the requirements of paragraphs (b) and (c) of this section with

respect to a previously conforming transportation plan and TIP.

8. The identical text of Secs. 51.428 and 93.118 is amended by

revising paragraph (b)(1)(ii) to read as follows:

Sec. . Criteria and procedures: Motor vehicle emissions budget

(transportation plan).

* * * * *

(b) * * *

(1) * * *

(ii) NOX as an ozone precursor;

* * * * *

9. Section 51.448 is amended by removing paragraph (g),

redesignating paragraphs (h) and (i) as (g) and (h), and revising

paragraphs (a) through (d) and the newly designated paragraph (g) to

read as follows:

Sec. 51.448 Transition from the interim period to the control strategy

period.

(a) Control strategy implementation plan submissions. (1) The

transportation plan and TIP must be demonstrated to conform by eighteen

months from the date of the State's initial submission to EPA of each

control strategy implementation plan establishing a motor vehicle

emissions budget. If conformity is not determined by 18 months from the

date of submission of such control strategy implementation plan, the

conformity status of the transportation plan and TIP will lapse, and no

new project-level conformity determinations may be made, until the

transportation plan and TIP have been demonstrated to conform.

(2) For areas not yet in the control strategy period for a given

pollutant, conformity shall be demonstrated using the motor vehicle

emissions budget(s) in a submitted control strategy implementation plan

revision for that pollutant beginning 90 days after submission, unless

EPA declares such budget(s) inadequate for transportation conformity

purposes. The motor vehicle emissions budget(s) may be used to

determine conformity during the first 90 days after its submission if

EPA agrees that the budget(s) are adequate for conformity purposes.

(b) Disapprovals. (1) If EPA disapproves the submitted control

strategy implementation plan revision and so notifies the State, MPO

and DOT, which initiates the sanction process under Clean Air Act

sections 179 or 110(m), the conformity status of the transportation

plan and TIP shall lapse 120 days after EPA's disapproval, and no new

project-level conformity determinations may be made. No new

transportation plan, TIP, or project may be found to conform until

another control strategy implementation plan revision fulfilling the

same Clean Air Act requirements is submitted and conformity to this

submission is determined.

(2) Notwithstanding paragraph (b)(1) of this section, if EPA

disapproves the submitted control strategy implementation plan revision

but makes a protective finding, the conformity status of the

transportation plan and TIP shall lapse on the date that highway

sanctions as a result of the disapproval are imposed on the

nonattainment area under section 179(b)(1) of the Clean Air Act. No new

transportation plan, TIP, or project may be found to conform until

another control strategy implementation plan revision fulfilling the

same Clean Air Act requirements is submitted and conformity to this

submission is determined.

(c) Failure to submit and incompleteness. For areas where EPA

notifies the State, MPO, and DOT of the State's failure to submit or

submission of an incomplete control strategy implementation plan

revision, which initiates the sanction process under Clean Air Act

sections 179 or 110(m), the conformity status of the transportation

plan and TIP shall lapse on the date that highway sanctions are imposed

on the nonattainment area for such failure under section 179(b)(1) of

the Clean Air Act, unless the failure has been remedied and

acknowledged by a letter from the EPA Regional Administrator.

(d) Federal implementation plans. When EPA promulgates a federal

implementation plan that contains motor vehicle emissions budget(s) as

a result of a State failure, the conformity lapse imposed by this

section because of that State failure is removed.

* * * * *

(g) Nonattainment areas which are not required to demonstrate

reasonable further progress and attainment. If an area listed in

Sec. 51.464 submits a control strategy implementation plan revision,

the requirements of paragraphs (a) and (e) of this section apply.

Because the areas listed in Sec. 51.464 are not required to demonstrate

reasonable further progress and attainment the provisions of paragraphs

(b) and (c) of this section do not apply to these areas at any time.

* * * * *

10. Section 93.128 is amended by removing paragraph (g),

redesignating paragraphs (h) and (i) as (g) and (h), and revising

paragraphs (a) through (d) and the newly designated paragraph (g) to

read as follows:

Sec. 93.128 Transition from the interim period to the control strategy

period.

(a) Control strategy implementation plan submissions.

(1) The transportation plan and TIP must be demonstrated to conform

by eighteen months from the date of the State's initial submission to

EPA of each control strategy implementation plan establishing a motor

vehicle emissions budget. If conformity is not determined by 18 months

from the date of submission of such control strategy implementation

plan, the conformity status of the transportation plan and TIP will

lapse, and no new project-level conformity determinations may be made,

until the transportation plan and TIP have been demonstrated to

conform.

(2) For areas not yet in the control strategy period for a given

pollutant, conformity shall be demonstrated using the motor vehicle

emissions budget(s) in a submitted control strategy implementation plan

revision for that pollutant beginning 90 days after submission, unless

EPA declares such budget(s) inadequate for transportation conformity

purposes. The motor vehicle

[[Page 44799]]

emissions budget(s) may be used to determine conformity during the

first 90 days after its submission if EPA agrees that the budget(s) are

adequate for conformity purposes.

(b) Disapprovals. (1) If EPA disapproves the submitted control

strategy implementation plan revision and so notifies the State, MPO

and DOT, which initiates the sanction process under Clean Air Act

sections 179 or 110(m), the conformity status of the transportation

plan and TIP shall lapse 120 days after EPA's disapproval, and no new

project-level conformity determinations may be made. No new

transportation plan, TIP, or project may be found to conform until

another control strategy implementation plan revision fulfilling the

same Clean Air Act requirements is submitted and conformity to this

submission is determined.

(2) Notwithstanding paragraph (b)(1) of this section, if EPA

disapproves the submitted control strategy implementation plan revision

but makes a protective finding, the conformity status of the

transportation plan and TIP shall lapse on the date that highway

sanctions as a result of the disapproval are imposed on the

nonattainment area under section 179(b)(1) of the Clean Air Act. No new

transportation plan, TIP, or project may be found to conform until

another control strategy implementation plan revision fulfilling the

same Clean Air Act requirements is submitted and conformity to this

submission is determined.

(c) Failure to submit and incompleteness. For areas where EPA

notifies the State, MPO, and DOT of the State's failure to submit or

submission of an incomplete control strategy implementation plan

revision, which initiates the sanction process under Clean Air Act

sections 179 or 110(m), the conformity status of the transportation

plan and TIP shall lapse on the date that highway sanctions are imposed

on the nonattainment area for such failure under section 179(b)(1) of

the Clean Air Act, unless the failure has been remedied and

acknowledged by a letter from the EPA Regional Administrator.

(d) Federal implementation plans. When EPA promulgates a federal

implementation plan that contains motor vehicle emissions budget(s) as

a result of a State failure, the conformity lapse imposed by this

section because of that State failure is removed.

* * * * *

(g) Nonattainment areas which are not required to demonstrate

reasonable further progress and attainment. If an area listed in

Sec. 93.136 submits a control strategy implementation plan revision,

the requirements of paragraphs (a) and (e) of this section apply.

Because the areas listed in Sec. 93.136 are not required to demonstrate

reasonable further progress and attainment the provisions of paragraphs

(b) and (c) of this section do not apply to these areas at any time.

* * * * *

Secs. 51.452, 93.130 [Amended]

11. The identical text of Secs. 51.452 and 93.130 is amended by

redesignating paragraph (b)(5) as paragraph (a)(6); and in paragraph

(c)(1) by revising the references, ``paragraph (a)'' to read

``paragraph (b)'' in two places.

[FR Doc. 95-21405 Filed 8-28-95; 8:45 am]

BILLING CODE 6560-50-P