Transportation Conformity Rule Amendments: Flexibility and Streamlining

SUMMARY: Today EPA promulgates a clarified and more flexible

transportation conformity rule. The conformity rule requires that

transportation plans, programs, and projects conform to state air

quality implementation plans (SIPs) and establishes the criteria and

procedures for determining whether or not they do. Conformity to a SIP

means that transportation activities will not produce new air quality

violations, worsen existing violations, or delay timely attainment of

the national ambient air quality standards.

The conformity rule changes promulgated today result from the

experience that EPA, the Department of Transportation (DOT), and state

and local air and transportation officials have had with implementation

of the rule since it was first published in November of 1993. While

these changes clarify the rule and in some cases offer increased

flexibility, they will not result in any negative change in health and

environmental benefits.

Today's rule gives state and local governments more authority in

selecting the performance measures used as tests of conformity and more

discretion when a transportation plan does not conform to a SIP. For

example, the rule allows motor vehicle emissions budgets in a submitted

SIP to be used to determine conformity instead of the ``build/no-

build'' test, and rural areas can choose among several conformity tests

to address the time period after that covered by the SIP.

EFFECTIVE DATE: September 15, 1997.

ADDRESSES: Materials relevant to this rulemaking are contained in

Docket No. A-96-05. The docket is located in room M-1500 Waterside Mall

(ground floor) at the Environmental Protection Agency, 401 M Street

SW., Washington, DC 20460. The docket may be inspected from 8 a.m. to

5:30 p.m., Monday through Friday, including all non-government

holidays. For information on electronic availability see Supplementary

Information.

FOR FURTHER INFORMATION CONTACT: Meg Patulski, Transportation and

Market Incentives Group, Regional and State Programs Division, U.S.

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

48105, [email protected]. (313) 741-7842.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by the conformity rule are those

which 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 include:

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

Examples of regulated

Category entities

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

Local government.......................... Local transportation and air

quality agencies.

State government.......................... State transportation and air

quality agencies.

Federal government........................ Department of Transportation

(Federal Highway

Administration and Federal

Transit Administration).

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

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be affected by this

rule. This table lists the types of entities that EPA is now aware

could potentially be regulated by the conformity rule. Other types of

entities not listed in the table could also be regulated. To determine

whether your organization is regulated by this action, you should

carefully examine the applicability requirements in Sec. 93.102 of the

conformity rule. If you have questions regarding the applicability of

this action to a particular entity, consult the person listed in the

preceding FOR FURTHER INFORMATION CONTACT section.

Electronic Availability

The final rule is also available electronically from the EPA

internet web site. Users are able to access and download files on their

first call using a personal computer according to the following

information:

Internet Web Sites

http://www.epa.gov/docs/fedrgstr/EPA-AIR/

(either select desired date or use Search feature)

Or

http://www.epa.gov/OMSWWW/

(look in What's New or under the Conformity file area)

The electronic version of this final rule should be available today on

any of the above-listed sites. Please note that due to differences

between the software used to develop the document and the software into

which the document may be downloaded, changes in format, page length,

etc. may occur.

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

I. Background on Transportation Conformity

II. Replacement of Build/No-build Test With Submitted SIPs

III. Other Comments on Conformity Tests

IV. Conformity Tests for Areas That Are Not Required to Submit SIPs

V. Rural Nonattainment and Maintenance Areas

VI. Mismatch in SIP/Transportation Plan Timeframe

VII. Non-federal Projects

VIII. Deadline for Use of Network Models and Affected Areas

IX. Content of Network Modeling Requirements in Serious and Above

Ozone and CO Areas

X. Adding Non-Exempt Projects to the Plan/TIP Without Regional

Analysis

XI. Consequences of SIP Disapproval

XII. Traffic Signal Synchronization

XIII. Conformity SIPs

XIV. Hot-spot Tests

XV. TCM Flexibility

XVI. Conformity and the Proposed NAAQS Revisions

XVII. Minor Changes to the Rule

XVIII. Administrative Requirements

I. Background on Transportation Conformity

Today's action amends the transportation conformity rule,

``Criteria and Procedures for Determining Conformity to State or

Federal Implementation Plans of Transportation Plans, Programs, and

Projects Funded or Approved Under Title 23 U.S.C. or the Federal

Transit Act'' (58 FR 62188, November 24, 1993). Required under section

176(c) of the Clean Air Act as amended in 1990, the transportation

conformity rule established the criteria and procedures by which the

Federal Highway Administration (FHWA), the Federal Transit

Administration (FTA), and metropolitan planning organizations (MPOs)

determine the conformity of federally funded or approved highway and

transit plans, programs, and projects to state air quality

implementation plans (SIPs). Conformity ensures that transportation

plans, programs, and projects do not produce new air quality

violations, worsen existing violations, or delay timely attainment of

national ambient air quality standards (NAAQS). According to the Clean

Air Act, federally supported activities must conform to the

implementation plan's

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purpose of attaining and maintaining these standards.

Since publication of the transportation conformity rule in November

1993, EPA, the Department of Transportation (DOT), and state and local

air and transportation officials have had considerable experience

implementing the criteria and procedures in the rule. This experience

has led to the streamlining, clarification, and new opportunities for

flexibility found in today's rule, which is the third of a series of

amendments to the transportation conformity rule. In each case, the

amendments were needed to clarify ambiguities, correct errors, or make

the conformity process more logical and feasible.

The first set of amendments was published as an interim final rule

on February 8, 1995 (60 FR 7449), and was finalized on August 7, 1995

(60 FR 40098). The first set of amendments aligned the dates of

conformity lapses (i.e., halting conformity determinations for new

federally funded highway/transit projects) due to SIP failures with the

application of Clean Air Act highway sanctions for certain ozone areas

and all areas with disapproved SIPs with a protective finding (defined

below in section XI.).

The second set of amendments was proposed on August 29, 1995 (60 FR

44790), and was finalized on November 14, 1995 (60 FR 57179). The

second set of amendments aligned the date of conformity lapses with the

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

to submit or submission of an incomplete control strategy SIP; extended

the grace period before which areas must determine conformity to a

submitted control strategy SIP; established a grace period before which

transportation plan and program conformity must be determined in newly

designated nonattainment areas; and corrected the nitrogen oxides

(NOX) provisions of the transportation conformity rule to be

consistent with the NOX requirements of the Clean Air Act

and previous commitments made by EPA.

The second set of amendments also allowed any transportation

control measure (TCM) from an approved SIP to proceed during a

conformity lapse, although EPA stated that it did not intend to approve

SIPs containing TCMs that have not been coordinated through the

transportation planning process, as required by 23 CFR part 450 and 49

CFR part 613. The Clean Air Act and the Intermodal Surface

Transportation Efficiency Act require that an integrated

transportation/air quality planning process be used to identify

effective TCMs and ensure their funding sources.

The Notice of Proposed Rulemaking for today's rule was published in

the Federal Register on July 9, 1996 (61 FR 36111). This proposal was

undertaken in response to several issues raised by conformity

implementers and other interested parties. EPA worked closely with

conformity stakeholders in developing the proposal, and had input from

the National Governors' Association (NGA), the Environmental Council of

States (ECOS), state DOTs, state environmental agencies, MPOs,

environmentalists, industry groups, other public interest groups, and

DOT. In 1995, meetings to discuss potential amendments to the

conformity rule were held by NGA and ECOS as well as the EPA. EPA

developed draft regulatory language in response and sought comment from

stakeholders.

The proposal's comment period ended September 9, 1996. EPA held a

public hearing for this proposal on August 6, 1996. EPA received more

than 50 comments from a variety of interests, including MPOs, state and

local air quality agencies, state DOTs, NGA, and environmentalists.

Copies of comments in their entirety can be obtained from the docket

for this rule (see ADDRESSES). The docket also includes a complete

Response to Comments document for this rule.

Since 1993, the transportation conformity rule has been included in

40 CFR part 51 and largely duplicated in 40 CFR part 93. In order to

streamline the CFR and eliminate this duplication, the only section of

today's conformity rule that remains in 40 CFR part 51 is Sec. 51.390,

which requires a conformity SIP revision. Part 51 is entitled,

``Requirements for Preparation, Adoption, and Submittal of

Implementation Plans.'' The remainder of the conformity rule is

included in 40 CFR part 93, which is entitled, ``Determining Conformity

of Federal Actions to State or Federal Implementation Plans.''

II. Replacement of Build/No-Build Test With Submitted SIPs

A. Description of Final Rule

Today's action finalizes the proposal to eliminate the build/no-

build test and other emission reduction tests once a control strategy

SIP or maintenance plan has been submitted to EPA and EPA has had 45

days to review the SIP submission and the adequacy of its motor vehicle

emissions budget(s) for conformity purposes. This final rule also

includes regulatory text from the proposal's preamble which establishes

the minimum criteria that must be satisfied in order for EPA to find a

submitted motor vehicle emissions budget adequate for transportation

conformity purposes. EPA clarifies today that submitted SIPs must

already meet these minimum criteria in order to be approved; EPA is not

imposing any new requirements for submitted SIPs.

EPA described the minimum adequacy criteria in the preamble to the

proposal (61 FR 36114, July 9, 1996), and they are outlined as follows.

In accordance with this final rule, an area's submitted SIP must be

endorsed by the Governor (or his/her designee) and subject to a public

hearing in order for EPA to find the submitted SIP adequate. Prior to

submitting the SIP, consultation between federal, state, and local

agencies must occur. SIP development must be documented and any

technical support information needed to review the adequacy of the SIP

must be submitted to EPA. In addition, any concerns stated by EPA must

be addressed before the SIP is submitted. The emissions budget(s) must

be clearly identified and precisely quantified. When considered with

point, area, and mobile sources, the emissions budget(s) must be

consistent with applicable requirements for reasonable further progress

(RFP), attainment, or maintenance, depending upon the particular SIP

submission. The SIP budget(s) must be consistent with the area's

emissions inventory for all sources and a clear relationship among the

budget(s), control measures and emissions inventory must be shown.

In addition, submitted SIPs must explain and document any changes

to previously submitted motor vehicle emissions budgets and control

measures; impacts on point and area source emissions; any changes to

established safety margins; and reasons for the changes, including the

basis for any changes related to emission factors or estimates of

vehicle miles traveled (VMT). EPA is defining safety margin in this

final rule to be the amount by which the total projected emissions from

all sources of a given pollutant are less than the total emissions that

would satisfy the applicable Clean Air Act requirement for RFP,

attainment, or maintenance.

EPA will interpret these adequacy criteria to mean that if a

submitted SIP's emissions budgets rely upon additional control measures

to demonstrate RFP, attainment, or maintenance, such new control

measures must be specified in the SIP submission. The submitted SIP

would need to quantify the emissions impacts of any new control

measures in its revised SIP, and at a minimum,

[[Page 43782]]

include commitments by appropriate agencies for adoption and

implementation schedules, in addition to draft regulations or other

relevant documents. These are minimum criteria for adequacy of

emissions budgets for conformity purposes; an approvable SIP must have

adopted and enforceable control measures.

Prior to EPA determining the adequacy of a submitted SIP budget,

EPA will also review documentation from the state's public comment

hearing on the SIP submission and the state's responses to the public

comments received. This documentation is currently required to be

included in the SIP package when it is submitted to EPA for its review.

EPA will send a letter to the state documenting EPA's finding of

adequacy or inadequacy, including EPA's consideration of public

comment.

The conformity adequacy review is separate from EPA's completeness

review of a submitted SIP for purposes of SIP processing. In addition,

EPA's 45-day adequacy review should not be used to prejudge EPA's

ultimate approval or disapproval of the SIP. As stated in the proposal,

EPA cannot ensure that a submitted SIP is consistent with RFP,

attainment, or maintenance until EPA has completed its formal review

process and the SIP has been approved or disapproved through notice-

and-comment rulemaking. Although the minimum criteria for adequacy

allow EPA to make a cursory review of the submitted motor vehicle

emissions budget for conformity purposes, EPA recognizes that other

elements must also be in the SIP for it to ultimately be approved.

Therefore, a budget that is found adequate in the 45-day review period

could later be disapproved when reviewed with the entire SIP

submission.

EPA will find a submitted motor vehicle emissions budget inadequate

if the submitted budget does not meet the minimum criteria. However,

the criteria included in the conformity rule are not intended to be a

comprehensive definition of an adequate SIP for SIP approval purposes.

EPA also clarifies that the 45-day adequacy review period begins

upon the receipt of the SIP submission in the EPA regional office.

Areas that submit SIPs after the effective date of this final rule

will be able to use their SIP budget(s) within 45 days of submission or

sooner if EPA finds them adequate. Areas that submit SIPs prior to the

effective date of this final rule can use those SIPs according to the

requirements of Sec. 51.448(a)(2)/Sec. 93.128(a)(2) as amended on

November 14, 1995 (60 FR 57179). According to these sections, areas can

use submitted SIP budgets beginning 90 days after submission unless EPA

finds them inadequate; areas can use them earlier if EPA declares them

adequate.

EPA's 90-day review period that is described in Sec. 51.448(a)(2)/

Sec. 93.128(a)(2) of the previous conformity rule may have used

different standards for adequacy than are being outlined in this final

rule, because under the previous rule the build/no-build test applied

in addition to the submitted budget. SIPs that EPA believed adequate

under that rule may not be adequate if they are the sole test of

conformity. As a result, EPA may use the adequacy criteria of this

final rule to re-examine SIPs that were submitted before this final

rule and have not yet been approved. EPA intends to complete this re-

examination within 45 days after the effective date of this final rule.

During this time, areas will continue using their SIPs that have been

submitted for more than 90 days; EPA's possible re-examination will not

delay or in any way interfere with areas determining conformity unless

EPA finds the SIP inadequate.

B. Rationale and Response to Comments

Most commenters agreed that the emission reduction tests should not

be required once a SIP is submitted. The majority of commenters agreed

that compared to the budget test, the value of the build/no-build test

is limited. Commenters believed that the proposed flexibility would

streamline conformity and use state and local resources more

efficiently. Most commenters also supported the proposal's reduction of

the adequacy review period for a submitted SIP from 90 to 45 days.

However, some commenters were concerned that submitted budgets may

not be able to fully satisfy the purpose of the emission reduction

tests, which is to ensure that annual emissions will be reduced and/or

that violations will not be created or worsened (see Clean Air Act

sections 176(c)(3)(A)(iii) and (c)(1)(B)). Specifically, some

commenters stated that the proposed EPA review period would not be

sufficient to ensure the adequacy of submitted budgets because the

proposal did not establish any objective criteria for adequacy in the

regulatory language, or provide an opportunity for public comment on

EPA's adequacy finding. Some argued that the absence of adequacy

criteria for submitted budgets could lead to the submission of inflated

budgets (not based on credible, quantifiable attainment demonstrations)

for the convenience of determining conformity. Commenters felt that

although these SIPs would ultimately not prove acceptable, they could

allow projects to proceed during EPA's rulemaking to disapprove the

SIP. This could also lead to delays in attainment. Another commenter

was concerned that the lack of objective criteria for adequacy in the

rule would make EPA more vulnerable to political pressure to approve

inadequate budgets.

EPA agrees that if submitted budgets are to replace the build/no-

build test as the primary measure of conformity, the criteria by which

EPA will judge their adequacy must be clearly articulated in the rule.

EPA has done so in this final action, and these criteria are those

described in the preamble to the proposal. In addition, submitted SIPs

must already meet these criteria in order for EPA to ultimately approve

them. Since the criteria included in this final rule are the same as

those described in the proposal and thus subjected to public comment,

EPA does not believe a reproposal is necessary prior to adding the

criteria to the regulatory language.

EPA also agrees that the public should be given the opportunity to

comment on the adequacy of a submitted SIP. Some commenters suggested

requiring public notice of submitted budgets and a 60-day period during

which the public could file objections and present arguments to EPA for

its consideration in its adequacy review. However, because the state

already holds a public hearing on the draft SIP before submitting it to

EPA, EPA believes the public has sufficient opportunity to comment at

the state level on the adequacy of the budgets contained in the SIP.

EPA believes the rule now addresses commenters' concerns by requiring

EPA to review and consider the compilation of public comment that the

state is already required to include with any SIP submission. EPA will

document its consideration of such comments in the letter to the state

indicating the adequacy of the submitted budget(s).

Commenters also expressed concern that EPA is not even obligated to

determine adequacy, since a submitted budget can be used even if EPA

has not determined adequacy within the 45-day review period. However,

EPA is committed to helping ensure that conformity and future

transportation investment decisions are made using the best possible

SIPs, and EPA intends to review all submitted SIPs within the 45-day

period.

Some commenters stated that EPA may not establish a motor vehicle

emissions budget as a legally enforceable obligation without following

the notice and comment procedures of the Administrative

[[Page 43783]]

Procedure Act (APA). EPA believes that it is appropriate not to provide

notice and comment for adequacy determinations for submitted SIPs,

since these determinations are only administrative reviews and not

substantive rules. When EPA reviews a SIP for completeness, EPA does

not perform a notice-and-comment rulemaking. EPA believes that

determining adequacy is more similar to completeness review than a SIP

approval action, in that adequacy determinations are merely

administrative applications of established criteria to emissions

budgets. For these reasons, EPA is not requiring notice and comment for

its 45-day adequacy review period. However, EPA believes the

commenters' concerns relating to public review under the APA are

addressed because EPA has established the criteria for determining

adequacy through this final rule, which has gone through APA notice and

comment procedures. In addition, EPA is ensuring that public comment on

adequacy of individual budgets is considered through review of comments

submitted to the state.

In addition to specific criteria for adequacy, some commenters

wanted to limit the grandfathering of new projects found to conform on

the basis of a submitted SIP's budget. A ``grandfathered'' project can

proceed without further conformity determinations (see Sec. 93.102(c)

for more details). Transportation projects are currently grandfathered

after a National Environmental Policy Act (NEPA) document is approved

and a project-level conformity determination is made. In order for a

project-level conformity determination to occur, a conforming plan and

TIP must be in place at the time of the determination.

Under the commenters' scenario, projects would only be

grandfathered when a project agreement authorizing federal funds

pursuant to 23 USC 110 or 49 USC 5309 has been executed. This would

grandfather projects later in the transportation planning process than

is currently the case. Changing the grandfathering in this manner would

make it more likely that local and state planners could halt a

project(s) if the SIP is ultimately disapproved. The commenters were

concerned that a submitted SIP's budget may not contain the necessary

emission reductions for demonstrating conformity in the future. If EPA

declared a budget adequate during the 45-day review period but later

disapproved it, commenters were concerned that an area may have

difficulty demonstrating conformity in the future if all the projects

planned according to that budget are grandfathered.

EPA believes that current grandfathering requirements are

appropriate and should not be changed. EPA has always believed that

there should only be one point in the transportation planning process

at which a project-level conformity determination is necessary. This

maintains stability and efficiency in the transportation planning

process.

Completion of the NEPA process is the step EPA has selected

historically for grandfathering transportation projects for several

reasons. Making a determination under NEPA is clearly an action to

support or approve an activity, and the Clean Air Act does not allow a

federal agency to take such an action without a conformity

determination. In addition, an air quality analysis is already required

by NEPA. To require this analysis again at a later date may create

redundancies in the transportation process and cause state and local

resources to be used less efficiently.

EPA is partially addressing these stakeholder concerns by

maintaining adverse conformity consequences in the case of SIP

disapproval without a protective finding. As described in section XI.

of this preamble, today's final rule does not allow any new projects to

be added to the plan or TIP beginning 120 days after a SIP is

disapproved without a protective finding. In cases of a SIP disapproval

without a protective finding, areas would only be able to advance

projects in the first three years of the currently conforming plan and

TIP. Therefore, although EPA is not changing the grandfathering of

projects after a SIP is submitted, there are real consequences if a

submitted SIP is ultimately found to have emissions budgets that will

not result in reasonable further progress or attainment. In addition,

EPA believes that with the adequacy requirements added to the rule and

the review of submitted public comments, it is less likely that budgets

which EPA finds adequate will ultimately be disapproved.

III. Other Comments on Conformity Tests

A. Implementation of Budget Test: Submitted vs. Approved Budgets

Some commenters stated that EPA should allow submitted SIP budgets

to override those in approved SIPs for years directly addressed by the

approved SIP. These commenters believed that newly submitted SIPs often

provide a more realistic picture of the future than approved SIPs. Some

believed that, unlike approved SIPs, newly submitted SIPs are more

accurate because they are based on an area's latest planning

assumptions.

Although EPA acknowledges that using updated budgets may be

preferable, EPA does not believe that it is legal to allow a submitted

SIP to supersede an approved SIP for years addressed by the approved

SIP. As stated in the proposal, Clean Air Act section 176(c)

specifically requires conformity to be demonstrated to approved SIPs.

SIP revisions that EPA has approved under Clean Air Act section 110 are

enforceable and cannot be relieved by a submission, even if that

submission utilizes better data. Approved SIP budgets have also been

subject to full technical review and public comment and should not be

replaced by budgets that have not yet been fully analyzed and reviewed.

Some commenters suggested that EPA should institute another adequacy

review process (similar to that being finalized today for submitted

SIPs) which could ensure that submitted SIPs are consistent with

attainment or maintenance. However, this type of process does not

resolve the legal prohibition on overriding approved SIPs, and it would

not be possible to determine whether submitted SIPs are consistent with

attainment or maintenance without EPA's full public review and approval

process. Although submitted SIPs cannot override approved SIPs for

years addressed by the approved SIP, EPA did clarify in the proposal

and this final rule that submitted SIPs can be used for years later

than those addressed by an approved SIP.

Others suggested that, if EPA could not allow submitted SIPs to

override approved SIPs, then EPA should require conformity

determinations to be done using the same models and inputs that were

used in the approved SIP. However, Clean Air Act section

176(c)(1)(B)(iii) requires that conformity determinations ``be based on

the most recent estimates of emissions, and such estimates shall be

determined from the most recent population, employment, travel, and

congestion estimates.'' As stated in the preamble to the 1993

conformity rule (58 FR 62210), it is expected that over time conformity

determinations will deviate from the SIP's assumptions regarding VMT

growth, demographics, trip generation, etc. Conformity is intended to

ensure that a SIP's emission targets are achieved given the most recent

planning assumptions. If conformity cannot be demonstrated using the

most recent

[[Page 43784]]

planning assumptions, either the SIP or the transportation plan and TIP

must be adjusted.

Even though an approved SIP can be changed if another SIP is

submitted and approved by EPA, some commenters believed that EPA's

review and approval of submitted SIPs would not occur in a timely

manner. The commenters urged EPA to conduct expedited review and

approval of submitted SIPs (e.g., 6- to 12-month timeframe), especially

those that are revisions of the currently approved SIP.

EPA recognizes these stakeholder concerns and has already made

expedited approval processes, such as parallel processing, available to

states. In parallel processing, states can develop a draft SIP revision

with close EPA involvement. If all approvability issues are resolved

prior to submitting the SIP to EPA, the state and EPA then request

public comment on the SIP at the same time. If no adverse comment is

received, EPA then finalizes approval as soon as possible after formal

state adoption and submittal, as long as no substantive changes have

occurred and the package is still approvable. Parallel processing is

encouraged when SIP revisions are straightforward, especially when

assumptions are updated and new, significant control measures are

unnecessary. In addition to parallel processing, EPA can use direct

final rulemaking to approve SIPs more quickly in cases where EPA does

not expect adverse comment.

B. VMT Comparison as Substitute for Budget Test

A few commenters recommended that areas be given the option to use

a VMT comparison test instead of the budget test, especially if data

sets and modeling used in the SIP are different than those used in the

plan and TIP. These commenters argued that the present budget test's

analytical inconsistencies could be eliminated if areas were allowed to

replace the budget test with a comparison of the projected vehicle

travel activity in the plan/TIP and that assumed in the SIP. If the

projected VMT in the plan/TIP is consistent with that in the SIP, the

commenters argued that Clean Air Act conformity requirements would be

met.

In order to meet the ``VMT test,'' commenters said that areas would

have to demonstrate that: a) vehicle trips, VMT, and number of vehicles

projected in the proposed plan/TIP have not exceeded these projections

in the SIP; and, b) the transportation system in the proposed plan and

TIP, and vehicle speed distributions on that system, are found through

the consultation process to be in reasonable agreement with the system

and speed distributions assumed in the SIP. Commenters argued that this

idea is supported by Clean Air Act section 176(c)(2)(A) which says that

``emissions expected from the implementation of plans and programs are

consistent with estimates of emissions from motor vehicles and

necessary emissions reductions contained in the applicable

implementation plan * * *'' If an MPO's ``most recent population,

employment, travel and congestion estimates'' (section 176(c)(1)) do

not exceed estimates of these parameters in the SIP, the commenters

believe that the transportation community has fulfilled its Clean Air

Act requirements.

EPA believes that this is not the correct legal interpretation of

Clean Air Act section 176(c)(2)(A), and consequently, a VMT-based test

is not a viable substitute for the budget test. As cited by the

commenters, section 176(c)(2)(A) emphasizes that the projected

emissions from the plan and TIP must be consistent with emissions

targets in the SIP. Emissions estimates depend on numerous factors

other than VMT, such as travel speed, fuels, inspection and maintenance

(I/M), or other technological factors, and thus emissions could

decrease even where VMT increases or vice-versa. Therefore, a VMT-based

test could possibly make it more difficult for some areas to

demonstrate conformity. For example, an area with high VMT growth could

have difficulty passing a VMT-based test, even though it might have a

cleaner fleet of vehicles resulting from electric vehicles or a

successful I/M program. For all of these reasons, EPA is not offering a

VMT-based test in this final rule.

IV. Conformity Tests for Areas That Are Not Required to Submit SIPs

A. Description of Final Rule

Today's action finalizes many of the options that were proposed for

demonstrating conformity in areas that are not required to submit

control strategy SIPs. The July 9, 1996 proposal outlined three options

for determining conformity in these types of areas: (1) create a budget

through the SIP process and use the budget test; (2) create a default

budget based on clean data in areas that have achieved the standard but

have not submitted a maintenance plan; or (3) use either the build/no-

build or ``no-greater-than-1990'' emission reduction test. Today's

final rule keeps the first and third proposed options, while limiting

the second option.

Areas that are not required to submit control strategy SIPs

include: marginal and below ozone nonattainment areas, not classified

carbon monoxide (CO) nonattainment areas, and moderate CO nonattainment

areas with a design value of 12.7 ppm or less. In addition, some

moderate and above ozone nonattainment areas that are meeting the NAAQS

are not required to submit control strategy SIPs. (See May 10, 1995,

memorandum from John S. Seitz, Director of the Office of Air Quality

Planning and Standards, to Regional Air Division Directors, entitled

``Reasonable Further Progress, Attainment Demonstrations, and Related

Requirements for Ozone Nonattainment Areas Meeting the Ozone National

Ambient Air Quality Standard'' for more information about this small

number of ozone areas.)

Under the November 1993 transportation conformity rule, all areas

that are not required to submit control strategy SIPs had two options

for demonstrating conformity. They could choose between satisfying both

emission reduction tests (i.e., the build/no-build and less-than-1990

tests) or submitting a SIP and using the budget test. Areas that

decided to choose the latter option, under the former conformity rule,

were required to perform the build/no-build and less-than-1990 tests

until the submitted SIP was approved.

According to this final rule, all areas that are not required to

submit control strategy SIPs can demonstrate conformity by using either

the build/no-build test or no-greater-than-1990 test (i.e., emissions

must be equal to or less than 1990 emissions); or, by submitting a SIP

through the regular SIP process and using the budget test 45 days after

submittal, provided EPA has not found the submitted SIP inadequate. The

SIP budget could be based on a modeled attainment demonstration or, for

areas with clean data (defined in the conformity rule as complete,

quality-assured monitoring data demonstrating attainment in accordance

with 40 CFR part 58), the SIP budget could be based on the motor

vehicle emissions in the most recent year of clean data.

In addition to these options, moderate and above ozone

nonattainment areas which EPA declares through rulemaking to be ``clean

data areas'' under the May 10, 1995 policy could request that a budget

based on the level of motor vehicle emissions in the most recent year

of clean data be established through that EPA rulemaking process. See

the May 10, 1995 memorandum cited above for more information about

these types of areas.

[[Page 43785]]

B. Discussion of Comments and Rationale

1. Default Budgets for Clean Data Areas

Most commenters supported the proposed options for demonstrating

conformity in areas that are not required to submit control strategy

SIPs. However, some questioned the enforceability of a ``default''

budget for clean data areas because such a budget would be created

through interagency consultation instead of the SIP process. Another

commenter argued that state air quality agencies should not be allowed

to create default budgets without EPA approval and public comment. The

commenter believed that this would be the equivalent of adopting an

element of the SIP, and it should be subject to the conformity rule's

public participation requirements and approval by EPA.

After further consideration, EPA agrees that budgets must be

established through rulemaking; an area cannot adopt a default budget

without EPA review and public comment. As a result, if clean data areas

choose to create a budget, the SIP process must be used (through which

they could establish a budget based on clean data); or, if they are

subject to the May 10, 1995 memo, they could establish a budget through

the EPA rulemaking process described in the memo. Of course, clean data

areas could also choose to use the emission reduction test flexibility

already described above. Because both the SIP and rulemaking processes

provide for EPA review and an opportunity for public comment, EPA

believes that the commenters' concerns are addressed in the clean data

option of this final rule.

EPA does not believe that areas choosing the rulemaking option will

have any additional administrative burden in submitting clean data

budgets for EPA review. Furthermore, since public comment is already a

part of the rulemaking process, additional time will not be needed for

gathering public input.

EPA recognizes there are clean data areas for which EPA has already

completed rulemaking under the May 10, 1995, memorandum. If these areas

are not subject to a control strategy SIP, they have the choice of

using either the build/no-build or no-greater-than-1990 test, or the

budget test if they decide to create one through the SIP process.

Again, if such areas choose to submit a SIP budget, they have the

option of basing the budget on a demonstration of clean data (rather

than modeling) and the budget could be the motor vehicle emissions in

the most recent year of clean data.

One commenter was concerned that, under the proposal, clean data

areas would not have an incentive to submit maintenance plans for

redesignation. EPA acknowledges the commenter's concern and believes

that limiting the default budget option in today's final rule addresses

this concern. However, EPA does believe that other significant

incentives already exist for areas with clean data to submit

maintenance plans.

Another commenter argued that the July 9, 1996, proposal was flawed

because it would allow areas to adopt de facto budgets based on clean

years even if subsequent years have NAAQS violations (thus

demonstrating that budgets derived from clean data years are not

adequate to maintain the standard). EPA believes that the final rule

addresses this concern since any SIP budget would be established only

through the rulemaking or SIP process. If an approved emissions budget

is based on clean data and violations occur, EPA can issue a SIP call

or, if a SIP has not yet been approved, EPA can declare the submitted

budget inadequate during adequacy review. EPA also has the ability to

disapprove a submitted SIP based on clean data if violations occur

prior to approval.

2. Maintenance Areas

A few commenters believed that the proposed options for areas that

are not required to submit control strategy SIPs should also be

available to these areas during the maintenance period.

Since maintenance areas have already submitted SIP budgets and EPA

has approved those budgets, maintenance areas must use the motor

vehicle emissions budget(s) in their maintenance plans to demonstrate

conformity unless a subsequent budget demonstrating maintenance is

approved. As discussed in section III. of this preamble, ``Other

Comments on Conformity Tests,'' Clean Air Act section 176(c)

specifically requires conformity findings to be based on approved SIPs.

Maintenance plans that EPA has approved under Clean Air Act section 110

are enforceable and their budgets must be used for conformity.

3. Emission Reduction Test Flexibility in PM-10 and NO2

Nonattainment Areas

One commenter requested that EPA remove the build/no-build test as

an option for demonstrating conformity in PM-10 (particles with an

aerodynamic diameter of less than or equal to a nominal 10 micrometers)

and NO2 (nitrogen dioxide) nonattainment areas that have not

submitted control strategy SIPs or maintenance plans. Section 93.119(c)

of the proposal, like the November 1993 final transportation conformity

rule, offered PM-10 and NO2 nonattainment areas the option

to use either the build/no-build test or no-greater-than-1990 test to

determine conformity, provided they have not submitted a control

strategy SIP or maintenance plan. The commenter believed that the

build/no-build test will not ensure that the frequency and severity of

existing violations will not be increased, as required by Clean Air Act

section 176(c)(1). Furthermore, commenters did not believe that the

same logic that was used in the November 1993 final rule could be used

to provide the build/no-build test option in ozone and CO nonattainment

areas that are not required to submit control strategy SIPs.

Since the flexibility for PM-10 and NO2 nonattainment

areas was finalized in the November 24, 1993 conformity rule, the

deadline for commenting on this provision has passed, and EPA is not

obligated to respond to this comment. Nevertheless, EPA does believe

that it is appropriate to continue to offer the build/no-build test as

an option in PM-10 and NO2 nonattainment areas. By ensuring

that motor vehicle emissions are less than they would be if no new

transportation investments were made, the build/no-build test does

ensure that the frequency and severity of violations are not increased

as a result of new transportation investments. EPA believes that this

same rationale can be used to justify the build/no-build test option in

ozone and CO areas that are not required to submit control strategy

SIPs. In summary, EPA continues to believe that where no SIP has been

submitted, the build/no-build test is sufficient for areas to meet the

requirements of section 176(c)(1).

V. Rural Nonattainment and Maintenance Areas

A. Description of the Final Rule

In today's action, EPA finalizes the flexibility proposed in

Sec. 93.119, with two minor clarifications. Rural nonattainment and

maintenance areas with submitted or approved control strategy SIPs or

maintenance plans will be allowed to choose among several tests for

demonstrating conformity for years after the time period addressed by

the SIP: (1) the budget test; (2) the emissions reduction tests

(``build/no-build test'' and/or one of the 1990 tests, depending on

what is required of the area's classification); or (3) air quality

modeling.

[[Page 43786]]

In the proposal, EPA's third option was ``air quality dispersion

modeling,'' which was more specific than intended. The final rule's

language has been changed to allow an area to use the air quality

modeling technique it used in its SIP attainment or maintenance

demonstration, even if that technique is not dispersion modeling. For

example, some SIP attainment demonstrations (most commonly in PM-10

areas) are developed using rollback/rollforward techniques based on

emission inventories, and/or chemical mass balance modeling, pursuant

to EPA guidance. Where the SIP demonstration correctly used one of

these techniques, the conformity determination can use the same

technique. EPA will reject SIP budgets during the 45-day review period

if such non-dispersion modeling was used inappropriately.

EPA also clarifies in the final rule that areas electing to use the

emissions reduction tests to demonstrate conformity for the outyears

must perform these tests even if the area has received a NOX

waiver.

Generally, NOX waivers are findings by the EPA

Administrator under Clean Air Act sections 182(b) or 182(f) that

additional reductions of NOX would not contribute to

attainment of the ozone standard by the statutory deadline. Areas have

historically applied for NOX waivers to eliminate the

NOX emissions reduction requirement.

When EPA proposed to allow rural ozone areas with attainment

demonstrations or maintenance plans to have the option of relying on

the NOX emissions reduction tests for the years not

addressed by these SIPs, EPA did not intend to allow these areas the

option of performing no NOX test at all. This would be the

result, however, if such areas could avoid meeting the substitute tests

by receiving NOX waivers. In the November 14, 1995,

conformity amendments (60 FR 57183), EPA stated that areas with

NOX budgets have to conform to these budgets even if they

were granted a NOX waiver. EPA emphasized that ``a

NOX waiver's demonstration that additional NOX

reductions would not contribute to attainment does not necessarily mean

that NOX increases would not affect an area's ability to

attain and maintain the standard. The purpose of a NOX

budget is to prevent NOX emissions from reaching levels that

would threaten attainment or maintenance of the ozone standard.''

EPA is allowing rural ozone areas to substitute the emissions

reduction tests for the budget test as a means of demonstrating that

these areas are meeting the requirements of Clean Air Act section

176(c)(1) that plans, TIPs, and projects not cause or contribute to any

new violation, worsen existing violations, or delay attainment of the

NAAQS. Therefore, for the same reasons a NOX waiver cannot

exempt an area from the budget test, a NOX waiver cannot

exempt an area from the NOX emission reduction tests when

these tests are selected as a substitute for existing NOX

budgets. EPA believes that the clarification in the final rule is

consistent with EPA's original intentions and stakeholders'

understanding of the proposal, and therefore believes that a reproposal

is not necessary to incorporate this minor change.

The choice of a test in rural areas will be determined through the

interagency consultation process and will reflect the consensus of the

state and local air and transportation agencies and the project

sponsor.

B. Rationale and Response to Comments

Most commenters supported the proposal for increased flexibility in

rural areas. EPA changed the language for the air quality modeling

option because EPA agrees with the stakeholder who pointed out that

modeling techniques deemed adequate in certain areas for SIP attainment

demonstrations ought to be adequate in those areas for conformity

determinations as well. EPA originally referred to air quality

dispersion modeling because it is the technique generally required for

SIP demonstrations. Because some PM-10 areas appropriately use air

quality modeling that is not dispersion modeling, EPA has broadened its

language to allow use of these other techniques.

One stakeholder commented that the proposal is illegal, because the

Clean Air Act does not provide for an exemption from the budget test

for rural areas. However, as explained in the proposal's preamble, EPA

believes that providing some flexibility for the years not addressed by

the SIP is consistent with the Clean Air Act. The Clean Air Act

requirement for consistency with the SIP's emissions reduction goals

can be construed to apply only for the years that an individual SIP

revision addresses, where there is another appropriate method of

demonstrating conformity as defined in Clean Air Act section 176(c)(1).

In general, EPA believes that a SIP budget, even if it is not yet

approved by EPA, is a better measure of conformity than the build/no-

build test. For this reason, EPA requires most areas to continue

demonstrating conformity to the SIP emissions budgets even after the

timeframe of the SIP (see section VI., ``Mismatch in SIP/Transportation

Plan Timeframe,'' for more explanation). However, EPA believes it does

have the flexibility to allow conformity to be demonstrated using some

test other than the SIP budget for years not addressed by the SIP, if

that test is more appropriate.

EPA believes that the reasons why the build/no-build test is less

desirable than the budget test for most areas do not apply in the

special circumstances of rural areas. The main critique of the build/

no-build test is that the difference in emissions that it predicts is

often small enough to be within the range of error of the models

themselves. EPA believes this will not be as problematic in rural

areas. Since there are fewer transportation projects and the

transportation network is less complex in rural areas, the build/no-

build test is more reliable. The test is better able to capture the

effects of new projects in such areas. Therefore, EPA believes it is

reasonable to allow the use of the build/no-build test as an option to

demonstrate conformity for the time period of the transportation plan

not covered by the SIP in rural areas.

Several commenters provided ideas for additional flexibilities in

rural areas. One stakeholder suggested that areas should be able to use

the budget from any year of clean data when employing the budget test.

This suggestion is not being implemented today because SIP budgets must

be established through notice-and-comment rulemaking. As stated in

section IV. of this preamble, EPA believes that areas cannot adopt a

default budget based on clean data without EPA review and public

comment. See this section for more details on the options available for

areas with clean data.

Another commenter suggested that areas be allowed to use

alternatives to regional modeling, such as ``subregional'' modeling or

``mesoscale analysis.'' EPA is not including that suggestion in this

section because specific modeling requirements do not apply to rural

areas; they only apply to urbanized areas with populations greater than

200,000. As a result, rural areas already have flexibility in modeling,

provided that their methods consider all regionally significant

projects in the nonattainment or maintenance area.

Several stakeholders suggested that the rule explicitly require

state and local air agency concurrence for the selection of conformity

tests, rather than just consultation. EPA does intend that

[[Page 43787]]

agencies reach agreement on which test to use to demonstrate conformity

in a rural area. However, EPA is retaining the language of the

proposal, because of concerns that requiring concurrence would imply

that the existing conflict resolution process (by which state agencies

can elevate disputes to the governor) cannot be used. EPA believes that

the regulatory language adequately indicates that consensus should be

reached or disputes raised through the conflict resolution process.

VI. Mismatch in SIP/Transportation Plan Timeframe

A. Description of Final Rule

This final rule retains the November 1993 conformity rule's

requirements (described in the proposal as option 1). Conformity must

continue to be demonstrated over a 20-year timeframe, and SIP budgets

continue to apply for conformity purposes for all future years until

superseded by other SIP revisions (except as provided in rural areas,

as described above).

Although EPA is not changing the November 1993 conformity rule

requirements with respect to the mismatch issue, EPA's existing SIP

policy already does provide for some of the flexibility proposed in

option 3, which would have allowed a default emissions budget to be

established for years outside the maintenance plan's timeframe. Because

EPA is aware of the challenges posed by the differing timeframes of the

SIP and the transportation plan, EPA does allow SIPs to establish motor

vehicle emissions budgets for conformity purposes for years outside the

timeframe that the SIP normally addresses. For example, some areas are

developing maintenance plans that include motor vehicle emissions

budgets for conformity purposes for the years 2010 and 2015, even

though the initial demonstration of maintenance is only required to

address ten years. EPA's approval of these budgets is not an approval

of a full 20-year maintenance demonstration; these budgets are for

conformity purposes only and will be superseded when the second ten-

year maintenance plan is submitted.

EPA will require areas to demonstrate that motor vehicle emissions

budgets for years outside the timeframe of the maintenance plan are

consistent with maintenance of air quality standards. EPA will not

permit areas to simply use the motor vehicle emissions in the year of

redesignation as a budget without considering growth in non-mobile

source emissions, which was a possibility discussed in the proposal

under option 3. However, EPA believes it has the flexibility to approve

budgets for years outside the usual maintenance plan timeframe for

conformity purposes based on less rigorous demonstrations than are

required for the Clean Air Act-mandated ten-year maintenance plan.

Whereas normally control measures must be fully adopted in order for

EPA to approve the SIP, EPA would be willing to approve conformity

budgets that were based in part on enforceable commitments to adopt

specific control measures in the future. Because these commitments

would be included in the approved SIP, they would be enforceable by all

parties, including the public. In addition, EPA would consider allowing

the motor vehicle emissions budgets in the last year of the ten-year

maintenance plan to be increased for future years provided offsetting

emissions reductions are adopted or committed to in the SIP.

The ability to establish motor vehicle emissions budgets for

conformity purposes for years outside the normal timeframe of the SIP

is not specifically discussed in this final rule's regulatory text

because it is currently possible under EPA's existing SIP policy, and

therefore no regulatory changes are needed.

B. Rationale and Discussion of Comments

EPA is finalizing option 1 (i.e., not changing conformity rule

requirements to address the mismatch in plan/SIP timeframes) for two

reasons. First, EPA believes there are important benefits associated

with this option, as commenters pointed out (discussed below). Second,

EPA believes there are adequate flexibilities under the existing

conformity rule and EPA SIP policy that will help areas address the

challenges of the timeframe mismatch in a manner that is more

supportive of air quality goals and prudent planning than any of the

other options proposed. The other options proposed included option 2,

which would have required emission reduction tests (``build/no-build

test'' and less-than-1990 test) for demonstrating conformity in years

not addressed by SIPs; and option 3, which would have allowed a default

motor vehicle emissions budget (such as the motor vehicle emissions in

the year of redesignation) to be used for the years outside the

maintenance plan's timeframe.

Many commenters supported option 1 because they believe that

maintaining the SIP's emission targets for the timeframe of the

transportation plan is a central purpose of conformity and perhaps its

most important requirement. Commenters stated that because the

obligation to meet air quality standards persists indefinitely, the

obligation to meet the motor vehicle emissions budget should not

terminate after the attainment date or the last year of the maintenance

plan. According to some commenters, it is appropriate to analyze the

effects of transportation investments over a 20-year timeframe, because

it may in fact take decades for these effects to be fully realized.

They stated that it is better to use a long timeframe and make the

right choices at the outset than to pursue a path for several years and

then try to quickly overcome the adverse consequences of that path. One

commenter pointed out that demonstrating conformity to the SIP's budget

over the 20 years of the transportation plan is the best way to prepare

for the fact that the benefits of fleet turnover do decline over time.

Some commenters preferred option 1 to the other options proposed

because option 1 requires emissions related to growth to be

specifically addressed and tradeoffs to be examined. According to these

commenters, the other options would not accomplish this, and the

conformity determinations that would result from these other options

would not have as much integrity because they would not be based on a

performance target with real meaning (i.e., a SIP budget that supports

reasonable further progress, attainment, or maintenance).

Many other commenters supported option 3, which would have allowed

a default motor vehicle emissions budget for the years after the last

year of the maintenance plan. These commenters believe this option

would be less burdensome than the other options. They also believe that

SIP budgets may be unrealistic because they are not established with a

20-year horizon in mind, and therefore it is not necessarily

appropriate to require areas to conform to them indefinitely. Option 3

was broadly discussed in the preamble to the proposal and included

possibilities that ranged from allowing motor vehicle emissions to grow

to levels in the year of redesignation without consideration of growth

in non-mobile emissions, to allowing budgets to increase only if it is

demonstrated that the standards will be maintained when growth in

mobile, area, and stationary sources is considered. Several commenters

supported option 3 only if the motor vehicle emissions budgets were

based on a demonstration of maintenance that considered all emissions

sources.

The approach that EPA is finalizing combines the benefits of option

1 with some of the flexibility contemplated by

[[Page 43788]]

option 3. EPA agrees with the commenters' reasons for supporting option

1. EPA is sympathetic to the concerns that prompted commenters to

advocate option 3, but EPA believes that the flexibility allowed under

existing SIP policy to establish reasonable budgets outside the

timeframe of the SIP is an effective means of addressing those concerns

without compromising the benefits of option 1. EPA is committed to

assisting areas with the challenges that arise when addressing long-

term emissions impacts. EPA also encourages a collaborative process

between local, state, and federal agencies in order to facilitate

acceptable solutions to these challenges under existing SIP policy.

A few commenters preferred option 2 (emission reduction tests)

because in their specific areas they could pass the build/no-build test

but not the NOX budget test. However, some commenters

opposed option 2 because the emission reduction tests have significant

limitations and would not ensure that regional mobile source emissions

remain consistent with attainment or maintenance requirements. One

commenter stated that the build/no-build test is an imprecise

analytical approach that bears no direct relationship to the attainment

demonstration.

EPA agrees that these arguments against option 2 are compelling.

Allowing areas to use emission reduction tests instead of SIP budgets

would be inconsistent with EPA's action described in section II. to

eliminate the emission reduction tests where SIP budgets have been

established. Overwhelming support has been expressed for this

elimination of the emission reduction tests in such cases, and this has

convinced EPA that option 2 is not a suitable solution for addressing

the mismatch of transportation plan and SIP timeframes. EPA is pursuing

the approach proposed in option 2 only in the limited case of rural

nonattainment and maintenance areas, for reasons specific to such areas

as explained in section V.

C. Response to Specific Comments

Several commenters stated that EPA should allow areas to use any of

the three proposed options. A commenter suggested that the choice of

options would be decided by each area through its own interagency

consultation process. As explained above, EPA believes that the option

being finalized is the most appropriate. One commenter supported option

1 provided areas have more flexibility to account for future programs

that will affect emissions. Currently, areas cannot assume future

programs unless they are adopted or included in the SIP. EPA believes

that the approach being finalized today will allow the flexibility the

commenter is seeking, because it allows budgets established for

conformity purposes to be based on enforceable commitments in the SIP

rather than requiring fully adopted control measures, as needed for

approval as part of a control strategy SIP.

One commenter suggested that the plan should be qualitatively

analyzed for the years beyond the timeframe of the SIP. EPA believes

this would not be consistent with the Clean Air Act's requirement for

the use of emissions estimates for determining conformity. In addition,

EPA believes that both the air quality and transportation planning

processes benefit from long-term quantitative analyses of

transportation plans. EPA believes that areas have sufficient

flexibility in analysis methods to develop a quantitative approach that

is both reasonable and useful.

Some commenters suggested that conformity should not be required at

all in years beyond the timeframe of the SIP. Other commenters

suggested that conformity should not be required until there are tools

adequate to the task. EPA believes this is not consistent with the

Clean Air Act's requirement to demonstrate that the transportation plan

will not cause or worsen violations of air quality standards.

Conformity of a transportation plan cannot be determined unless all

years of the transportation plan are considered. EPA believes that

adequate analytical tools are currently available and are continually

being improved. All areas have great freedom to improve their own

analysis techniques, which EPA supports.

One commenter suggested that the options proposed for rural

nonattainment and maintenance areas be provided for all areas as a way

of addressing the mismatch in transportation plan and SIP timeframes.

The options being provided to rural areas include a choice among the

SIP emissions budget, the emission reduction tests, or air quality

modeling. The emission reduction tests are not being pursued for all

areas as described in the discussion of option 2, above. The reasons

for using the emission reduction tests in rural areas, as described in

section V., are only applicable in rural areas and would not provide a

basis to use these tests in other areas. However, option 1 does give

areas the opportunity to use either the SIP emissions budget or

establish new budgets that are supported by air quality modeling.

Some commenters stated that demonstrating consistency with the

motor vehicle emissions budget established for the attainment year or

the last year of the maintenance plan is not sufficient to demonstrate

that an activity will not cause or worsen air quality violations. These

commenters argue that it must be demonstrated that the motor vehicle

emissions budget is consistent with attainment or maintenance when the

most recent projections about non-mobile source emissions growth are

also considered. EPA does not believe that this is required by the

Clean Air Act. EPA believes that if motor vehicle emissions are less

than or equal to the most recent motor vehicle emissions budgets in the

SIP that was approved as meeting attainment or maintenance

requirements, then it can be stated that motor vehicles are not

``causing or contributing'' to violations, as required by the Clean Air

Act. It is not the role of the conformity requirements to provide

attainment or maintenance plans, but merely to prevent adverse impacts

on such demonstrations.

However, EPA does recognize that consistency with the motor vehicle

emissions budgets for the transportation plan's 20-year timeframe does

not guarantee attainment or maintenance because of the possibility for

growth in non-mobile sources. This is one reason why EPA is not

finalizing a version of option 3 that would allow motor vehicle

emissions to increase above approved SIP budgets without considering

emissions from other sources.

VII. Non-Federal Projects

A. Description of Final Rule

As was proposed, the final rule allows certain regionally

significant non-federal transportation projects to be adopted or

approved during a transportation plan/TIP conformity lapse, provided

the project was included in the regional emissions analysis supporting

the most recent transportation plan and TIP conformity determination.

Non-federal projects are projects which are funded or approved by a

recipient of federal funds designated under title 23 U.S.C. or the

Federal Transit Laws (49 U.S.C. Chapter 53) but which do not rely at

all on any FHWA/FTA funding or approvals.

The final rule clarifies that only those non-federal projects from

the first three years of the most recent conforming plan and TIP (or

supporting regional emissions analysis) may proceed during a conformity

lapse. In the proposal, EPA had simply stated that non-federal projects

in the most recent conforming

[[Page 43789]]

plan and TIP's regional emissions analysis could proceed when a lapse

occurs.

B. Rationale for Clarification and Response to Comments

Most commenters supported the proposal, and many said that it was

appropriate because the emissions impacts from affected non-federal

projects have already been considered and sufficient project reviews

have already occurred. However, some commenters expressed concern that

in their understanding the proposal would facilitate the exchanging of

funds between federal and non-federal projects during a conformity

lapse. Some even implied that there may be areas that would build large

numbers of non-federal projects by exchanging funds, and thereby, avoid

conformity consequences for an indefinite amount of time. There was

concern that because some TIPs cover more than three years, sometimes

even five or more years, a substantial number of non-federal projects

could be built during a conformity lapse. Some of these commenters even

believed that the proposal would allow areas to advance all non-federal

projects in the 20-year transportation planning horizon during a

conformity lapse, thus reducing or removing the incentive to develop

transportation plans and TIPs that actually do conform. EPA did not

intend this in the proposal, and as a result, EPA believes that a

regulatory clarification is necessary in this final rule.

Although commenters suggested possible safeguards to protect

against such abuses, including limiting the number of non-federal

projects that could go forward during a lapse or restricting the

ability to exchange funds between federal and non-federal projects, EPA

believes that the final rule's clarification addresses these concerns.

EPA did not intend that a non-federal project identified for any

year in the 20-year transportation planning horizon could proceed at

any time. This interpretation would be inconsistent with other

regulatory requirements and with the stated rationale for the proposed

non-federal project flexibility. Under DOT's metropolitan planning

requirements (23 CFR 450.332(c)), projects identified for funding in

the first three years of the plan and TIP are the only projects that

can proceed under any approved TIP. New TIPs are required every two

years, and projects from the outyears of an approved TIP cannot be

moved forward without a TIP amendment. Therefore, EPA believes that

allowing non-federal projects in the outyears of the TIP and plan to

advance at any time for conformity purposes is inconsistent with this

general regulatory context. In the proposal, EPA had intended that only

those projects already scheduled to begin in the timeframe of the first

three years of the TIP could proceed during a conformity lapse.

There are several reasons why the final rule's clarification is

consistent with EPA's original intentions and rationale for providing

areas flexibility for non-federal projects. During the development of

the proposal, stakeholders who suggested the proposed non-federal

project flexibility argued that it was appropriate because future plans

and TIPs would have to consider the emissions from non-federal projects

and offset them as necessary. These projects would ultimately have to

be considered in the next TIP in the metropolitan planning process. In

addition, as EPA pointed out in the preamble to the proposal and as

many commenters argued, requiring non-federal projects to have been

included in the most recent conforming plan and TIP ensures that the

emissions consequences of the projects have been considered.

Neither of these rationales would be consistent with allowing a

non-federal project from the outyears to proceed at any time. The

emissions analysis for the plan and TIP would no longer be valid if the

implementation dates of non-federal projects were altered. Allowing

non-federal projects from the outyears to be accelerated during a

conformity lapse so that a new conforming plan and TIP could be

substantially delayed would in effect be allowing the non-federal

projects to escape the scrutiny of the metropolitan planning process

which EPA had relied on in making the proposal. The final rule's

clarification ensures that the flexibility operates as originally

intended by EPA and conformity stakeholders. EPA believes this is fully

consistent with the original proposal and therefore does not require

any reproposal prior to proceeding with final action.

C. Governor Approval

EPA requested comment on whether the governor should be required to

approve each non-federal project that would proceed during a conformity

lapse. EPA did not believe that it could propose such a change because

governor approval is not explicitly required by the Clean Air Act, and

it was unclear whether state and local officials should have the

authority to adopt or approve non-federal projects during a lapse. Due

to the comments received, EPA has decided not to require governor

approval in the final rule.

EPA received many comments on this issue that strongly supported

the proposal to not require governor approval of non-federal projects

affected by the final rule. Many reasons were cited by commenters. Some

said that governor approval isn't necessary since the governor appoints

the directors of the state transportation and air agencies, and in some

cases, governors have even appointed the MPO as his/her designee for

air quality planning. Others emphasized that the conformity rule

already provides for involving the governor, when necessary, through

the conflict resolution process. Many argued that local non-federal

projects are usually time-sensitive and many local governments fund

these projects in order to expeditiously move them through the planning

process. In this case, requiring governor approval is unnecessary and

would impede rather than facilitate the process of non-federal project

implementation. Finally, some believed that it was not appropriate for

governors to have authority over approving local non-federal projects.

EPA agrees generally with commenters and believes that requiring

governor approval is not necessary. Therefore, EPA is not requiring

governor approval of non-federal projects during a conformity lapse.

D. Responses to Other Comments on Non-Federal Projects

EPA received other comments on the proposed non-federal project

flexibility which did not result in changes to the proposal.

1. Comments Opposing Statutory Interpretation

One commenter argued that any exemption for non-federal projects

would violate the statutory requirement that any such project only be

approved or funded if it either ``comes from a conforming plan and

program,'' or its emissions when considered with those of ``the

conforming transportation plans and programs within the nonattainment

area'' do not exceed the applicable emissions budgets. The commenter

argued that the present tense of the operative verbs in the statutory

language does not allow exemptions for projects that come from a plan

and program that no longer conform. The commenter also argued that this

exemption cannot be justified as a grandfathering mechanism because it

allegedly applies to projects that have not yet satisfied applicable

federal requirements. Finally, the commenter objected that the proposal

allows state DOTs to continue to build

[[Page 43790]]

projects with state funds during periods when the metropolitan

transportation plans fail to satisfy the Clean Air Act's requirements

for emission reductions, and therefore leads to a delay in attainment.

EPA believes that it is appropriate to allow non-federally funded

projects that have previously satisfied conformity requirements to

proceed during a conformity lapse because the existence of a conforming

plan and TIP is not necessary to facilitate the implementation of such

projects. As to the commenter's concern about potential emissions

increases, any future plan and TIP will have to account for and offset

if necessary the emissions of any non-federal projects that are

implemented during a conformity lapse.

EPA acknowledges that there is some tension with the present tense

statutory language concerning the existence of a conforming plan and

TIP. However, EPA believes that this is a proper case of grandfathering

projects that had been previously found to satisfy the applicable

federal conformity requirements. The only obligation imposed by the

conformity rule on non-federal projects is to account for project

emissions in a conforming plan and TIP. If this has been done, EPA

believes that it is appropriate to allow projects in the timeframe of

the first three years of the plan and TIP to proceed towards

implementation, so as not to interfere with the priorities of non-

federal entities funding such projects.

2. Changes in Implementation Date

Another commenter said that it was unclear whether a non-federal

project could go forward during a lapse if the project's design concept

and scope had changed; or, if the project's implementation date had

changed in a manner that changed emissions in a milestone or analysis

year. Under the proposal and this final rule, a non-federal project

cannot go forward during a conformity lapse if its design concept and

scope has changed significantly. A non-federal project also cannot go

forward if its implementation date changes in a manner that changes the

emissions that the emissions analysis supporting the most recent

conforming plan and TIP projected for a given analysis year. In either

case, a new air quality analysis would be needed to ensure that the

project would still conform, and it would be inappropriate to allow

such projects to proceed based on the analysis in the most recent plan/

TIP. The final rule's clarification should reduce confusion on this

point.

3. Comments on Original Conformity Rule

One commenter objected to the provisions of the original conformity

rule that do not require conformity determinations for non-federally

funded projects. The commenter included detailed statutory arguments

alleging that Clean Air Act section 176(c) on its face requires

conformity determinations for all transportation projects, and the

commenter also included citations to the legislative history supporting

these allegations. The commenter also argued that non-federal project

sponsors should provide a public process prior to determining that

emissions from non-federal projects are consistent with applicable

emissions budgets.

EPA's proposal did not cover this aspect of the conformity rule,

which has been final since 1993. EPA did not intend to reopen the issue

of whether non-federal projects should undergo conformity

determinations when it proposed to allow certain non-federal projects

to proceed during a lapse. As EPA explained in the preamble to the 1993

conformity rule, Clean Air Act section 176(c)(2)(C) clearly

distinguishes non-federal projects from those projects required to

conduct a conformity determination, requiring only that non-federal

projects be considered in a regional emissions analysis prior to

adoption or approval. Non-federal projects are not covered in the

requirement to conduct a conformity determination in section 176(c)(1),

which applies only to actions of federal agencies and metropolitan

planning agencies. For these reasons, EPA is not responding in full to

comments submitted on this issue. For more explanation of EPA's

rationale for the provisions of the original conformity rule, see the

preamble to the final rule at 58 FR 62188, 62204 (Nov. 24, 1993).

Finally, since federal agencies do not approve non-federal projects,

such approvals are not subject to the requirements of the federal

Administrative Procedure Act. Non-federal project sponsors would have

to comply with any applicable public participation processes required

under state law.

VIII. Deadline for Use of Network Models and Affected Areas

A. Description of Final Rule

Today's action finalizes the proposal to require serious CO and

serious, severe, and extreme ozone areas to use network models for

conformity determinations by January 1, 1997. In addition, as proposed,

these network modeling requirements are revised so that they only apply

to metropolitan planning areas with an urbanized area population over

200,000. EPA continues to believe that network modeling requirements

are most important for large urbanized areas, and therefore believes

that it is appropriate for the conformity rule to focus its specific

modeling requirements on them. See section IX.A. for a description of

the final rule's requirements for network models.

As stated in the proposal and required under the original

conformity rule, whether or not an area is required to use a network

model, all areas must use the consultation process to select regional

models and assumptions, as required by Sec. 93.105(c).

B. Rationale and Discussion of Comments

Most commenters supported the final rule's limiting of network

modeling requirements to serious and above areas with an urbanized

population over 200,000. Commenters agreed with EPA that network

modeling is not always appropriate in rural or urban areas with smaller

populations, and therefore, should not be required in these areas.

One commenter suggested that all urban areas with a population

greater than 50,000 people should also be required to use network

models because these models are simple and inexpensive. However, the

commenter did not believe that the proposal would seriously weaken the

conformity process, since most of these smaller cities already use

network models for conformity analyses.

As previously stated, EPA believes that network modeling

requirements are most important for large urbanized areas. As a result,

EPA is not changing the proposed population threshold. However, EPA

also notes that Sec. 93.122(c) of the conformity rule requires areas

that are already using network models to continue using them, even if

they are not serious or above areas or have a population less than

200,000. EPA and DOT will consider the specific technical needs of

smaller areas when developing future modeling guidance.

A couple of commenters supported stratifying the network modeling

requirements by size of urban area. EPA believes that the final rule in

part addresses this concern by only requiring larger urbanized areas to

adhere to the network modeling requirements. However, EPA does not want

to create a complicated stratification system that would require

multiple sets of modeling requirements. Therefore, EPA did not

[[Page 43791]]

change the rule in response to this comment.

As proposed, today's action also extends the deadline for

implementing the network modeling requirements from January 1, 1995, to

January 1, 1997. A few commenters suggested that MPOs that are not

meeting the rule's network modeling requirements should be put on a

timetable for compliance. Other commenters thought that extending the

deadline was unnecessary due to the ease of implementing such a network

model, especially since the majority of areas already have a network

model in place. They also felt that an extension would seriously weaken

the modeling regulation. Some commenters stated that the extension of

the deadline is obsolete, since the final rule would be published after

January 1, 1997.

EPA acknowledges that the January 1, 1997, deadline has already

passed. The original conformity rule required that areas use network

models in conformity analyses by January 1, 1995, and when the proposal

was being developed, most areas had achieved the rule's network

modeling requirements by this deadline. However, as discussed in the

proposal, a few areas had not yet complied with the deadline, and EPA

believed that an extension until January 1, 1997, would be adequate to

address their difficulties.

EPA did consider extending the deadline even further when it became

apparent that the final rule would not be effective before January 1,

1997. However, reproposal would have been necessary to significantly

extend the proposed January 1, 1997, deadline, and EPA believes it is

likely that the few areas in question will have adequate network models

developed before a reproposal could be finalized.

For all of these reasons, EPA is retaining the January 1, 1997,

deadline. EPA agrees with the commenters that the majority of affected

areas are already using network models. EPA and DOT are currently

working with the two areas that have not yet met the network modeling

requirements so that they will overcome their unique circumstances and

meet the requirements in the future.

IX. Content of Network Modeling Requirements in Serious and Above Ozone

and CO Areas

A. Description of Final Rule

In today's final rule, EPA is streamlining the conformity rule's

modeling requirements and committing to collaborate with DOT to develop

future modeling guidance. Specifically, EPA is eliminating several

modeling criteria from regulatory text while retaining those criteria

that establish minimum acceptable practice.

The proposal requested comment on three options for addressing the

modeling criteria in the conformity rule. Option 1 proposed to

eliminate all of the 11 required attributes of network models in the

original November 24, 1993, final transportation conformity rule and

address the attributes only in guidance. Option 2 would have retained

all of the original modeling attributes. Option 3 proposed to

streamline the original requirements for network models and address the

eliminated attributes in guidance. Today's action finalizes option 3

with some minor modifications.

The final rule includes six required elements for network modeling

in serious and above ozone and CO areas with an urbanized population

over 200,000. These elements include the five that were proposed as

option 3 (with minor wording changes), as well as the November 1993

conformity rule's requirement in Sec. 51.452(b)(1)(iv)/

Sec. 93.130(b)(1)(iv) for reasonable agreement between zone-to-zone

travel times used in trip distribution and the travel times resulting

from traffic assignment.

Specifically, this final rule requires network-based models to be

validated against observed counts (peak and off-peak, if possible) for

a base year that is not more than ten years prior to the date of the

conformity determination. Model forecasts must be analyzed for

reasonableness and compared to historical trends and other factors, and

the results must be documented. Land use, population, employment, and

other network-based model assumptions must be documented and based on

the best available information. Scenarios of land development and use

must be consistent with the future transportation system alternatives

for which emissions are being estimated. The distribution of employment

and residences for different transportation options must be reasonable.

A capacity-restrained traffic assignment methodology must be used,

and emissions estimates must be based on a methodology which

differentiates between peak and off-peak volumes and speeds, and which

uses speeds based on final assigned volumes. Zone-to-zone travel

impedances used to distribute trips between origin and destination

pairs must be in reasonable agreement with the travel times that are

estimated from final assigned traffic volumes. Where use of transit

currently is anticipated to be a significant factor in satisfying

transportation demand, these times should also be used for modeling

mode splits. Finally, network-based models must be reasonably sensitive

to changes in the time(s), cost(s), and other factors affecting travel

choices.

EPA believes that the streamlined criteria and clarified rule

language will assist areas in implementing the rule's network modeling

provisions. The final rule does not create any new network modeling

requirements for large, urbanized serious and above ozone and CO areas.

As stated in the proposal, EPA and DOT will develop modeling

guidance in the future to address some of the modeling requirements

that were eliminated from the final rule and to foster the exchange of

information on current and future modeling improvements. As discussed

later in this section, EPA and DOT are committed to an open stakeholder

process about modeling procedures that will begin shortly after the

rule becomes effective.

B. Rationale and Discussion of Comments: Selected Option

There were commenters who supported each of the three proposed

options for the content of the network modeling requirements. Some

supported option 1 because they believed that eliminating all modeling

attributes would simplify the conformity rule and create maximum

flexibility for areas. Other commenters argued strongly for option 2,

which would have retained all 11 modeling attributes from the original

rule. According to one commenter, removing all of the modeling

attributes from the rule would have detrimental effects on the entire

conformity process. Finally, many commenters from the transportation

and environmental communities supported option 3, which proposed to

streamline the modeling requirements without fully eliminating them.

These commenters believed that having some baseline modeling criteria

in the rule ensures national consistency of network models while

streamlining the rule to allow for flexibility at the state and local

levels.

As previously stated, this final rule streamlines the original

conformity rule's network modeling criteria by eliminating some

criteria and clarifying the rule's language. EPA is retaining some

modeling requirements in this final rule because EPA agrees with

commenters that minimum modeling standards are an important component

of the conformity process. Many commenters believed that all or some of

the original modeling criteria should be retained in the final rule,

because without them, modeling practice would

[[Page 43792]]

become highly variable across the country. They also thought that

eliminating all criteria would undermine the integrity, reliability,

and credibility of the process for assessing the expected impacts of

transportation investments on travel demand, travel behavior, and

estimates of future vehicle miles traveled (VMT) and emissions. Others

believed that having modeling criteria in the conformity rule has

spurred the funding and development of state and local transportation

model improvements. Finally, some pointed out that sound network models

are needed for other processes besides conformity, such as SIP

development, and therefore should be retained.

Other commenters were concerned that lawsuits would increase if all

of the modeling attributes were eliminated, due to the inconsistency of

requirements across the country. According to commenters, the outcomes

of these suits would be hard to predict and money would be wasted in

the adversarial process.

EPA agrees with these comments and believes that the final rule

addresses them. EPA also agrees that nationally consistent and

enforceable minimum standards are central to the integrity of the

conformity process. Minimum standards clarify the expectations of all

agencies involved in the conformity process and thus ensure some equity

among all areas.

One commenter argued that EPA cannot eliminate all of the modeling

attributes because they are a regulatory requirement which cannot be

substituted with unspecified guidance that is developed outside of the

rulemaking process. EPA agrees with this comment and is addressing it

by retaining minimum standards in this final rule.

Although some commenters supported option 1, EPA does not believe

that eliminating the modeling requirements is necessary to achieve the

objectives of these particular commenters. Some supported option 1

because eliminating all modeling criteria would allow areas to tailor

their network models to satisfy their current modeling and air quality

planning needs. According to one commenter, this option would

distribute resources and technical expertise appropriately in state and

local agencies. Commenters also believed that under option 1 areas

would be able to do sound quantitative analysis while having the

flexibility to accommodate modeling improvements and demographic

changes in their area. A couple of commenters suggested states should

have the authority to determine network model attributes on an area-by-

area basis, and one approach for this is to allow state-level approval

of an area's model subject to the interagency consultation process.

EPA believes that areas have the flexibility to appropriately

tailor their models and distribute their resources under option 3 as

well as option 1. The conformity rule's modeling requirements define

minimum acceptable practice, and beyond this, areas have flexibility to

determine appropriate modeling practices and accommodate modeling

improvements through interagency consultation. EPA does not believe

that areas should be able to use models that do not meet minimum

standards of acceptable professional practice, for the reasons

described in this section.

One commenter stated that the criteria in options 2 and 3 are

accounted for in some way in existing practice, and that requiring them

does not advance the state of the practice and may hinder it if future

developments lead to improved, but different, methodologies. Another

commenter suggested that by eliminating all modeling criteria, EPA and

DOT could incorporate future modeling improvements by revising the

guidance rather than having to go through the difficult and time-

consuming process of revising the rule. Others believed option 1 would

give agencies across the country access to technical changes and

expertise which may not be available to them on a case-by-case basis,

and may provide a better way of communicating updates and improvements

in network modeling procedures.

EPA does not believe that establishing baseline modeling criteria,

as is being done in this final rule, will inhibit the adoption of

future modeling improvements. EPA agrees that future modeling guidance

should provide information to state and local agencies about modeling

updates, and EPA and DOT are committed to working with stakeholders to

exchange ideas in the guidance development process. However, EPA does

not believe it is necessary to eliminate the rule's modeling

requirements in order to issue future modeling guidance. As general

modeling practices improve, EPA and DOT will make periodic updates in

the form of non-enforceable modeling guidance, rather than future

amendments to the conformity rule.

An area that has not yet implemented the currently required model

improvements supported option 1 because the area believed option 1

would provide flexibility and make a conformity lapse for this area

less likely. EPA believes that it would be inappropriate to eliminate

all of the modeling criteria just because a few areas are having

temporary difficulty achieving them. This stakeholder concern was also

raised in the context of extending the deadline for implementing

network modeling requirements. EPA considered the merits of this

comment, and as outlined above, decided that a reproposal to extend the

deadline could not be completed in time to provide relief to the few

affected areas. As previously mentioned, EPA and DOT are assisting the

two areas without adequate network models to achieve the minimum

standards in this rule.

EPA believes that option 3 also addresses the concerns of the

commenters who supported option 2. These commenters seemed most

concerned with whether any modeling requirements would be retained in

the rule; option 1 would have eliminated all of the rule's network

modeling requirements. Many of the commenters who supported option 2

also supported option 3, provided there were modifications for some of

the language in option 3. EPA believes that the changes made to option

3, which are discussed below, make the final rule's language more

streamlined, clear, and useful than the 1993 conformity rule language

proposed for retention in option 2.

A few commenters who supported option 3 also thought that areas

should not be required to use network modeling improvements in the

conformity process prior to their application in the SIP process. The

commenters believed this would remedy problems associated with

inconsistencies between the models used in conformity analysis and

those used in SIP development. EPA recognizes the commenters' concerns

about the implementation difficulties that may occur as a result of

model improvements. However, Clean Air Act section 176(c)(1)(B)(iii)

requires conformity determinations to ``be based on the most recent

estimates of emissions.'' EPA believes that areas must use the most

current tools available at the time of the conformity determination, in

accordance with the Clean Air Act. Using the best models and

assumptions will also produce the best emissions estimates on which

areas will base decisions regarding transportation and air quality. EPA

also notes that areas already have the ability to use the consultation

process to coordinate the introduction of transportation modeling

improvements into their planning processes. For these reasons, EPA is

not finalizing the commenters' suggestion.

[[Page 43793]]

C. Future Modeling Guidance and Response to Comments

As stated in the proposal, EPA and DOT will develop modeling

guidance in the future. This guidance will address some of the modeling

requirements that were eliminated from the final rule; provide guidance

on implementing modeling requirements; and facilitate the exchange of

information on advancements in modeling. EPA and DOT are committed to

working with stakeholders in the development of the guidance, an idea

which was supported by many commenters. This process will begin soon

after this rule becomes effective, and will include stakeholder

participation in workshops for developing the guidance. In addition,

EPA and DOT will make drafts available for stakeholder comments. This

joint federal, state, and local effort will bring together the

expertise to assure national consistency and meaningful emissions

results in conformity analyses.

Some commenters were concerned that the guidance would be mandatory

and that future guidance updates would be difficult to implement if it

were mandatory. Today, EPA clarifies that the guidance will not be an

enforceable requirement, although EPA and DOT encourage use of future

guidance on a voluntary basis as deemed appropriate by affected state

and local agencies. There is also no specific date by which future

modeling guidance must be used, or by which models are required to be

improved in accordance with future guidance, since the use of future

guidance is not an enforceable requirement. Areas will decide upon how

to implement modeling guidance using the interagency consultation

process.

Another commenter said that each MPO should have the responsibility

to demonstrate the adequacy of their model through documentation, and

such documentation should be included as an appendix to the area's

conformity package. EPA agrees with this comment and encourages MPOs to

submit such documentation with their conformity determinations.

D. Rationale and Discussion of Comments: Specific Criteria

As discussed above, this final rule specifies six requirements for

network models for serious and above ozone and CO areas. These replace

the 11 that were required by the November 1993 conformity rule. This

final rule includes the five requirements that were proposed as option

3, as well as a requirement from the November 1993 conformity rule that

was not originally proposed as part of option 3 (but was included in

proposed option 2, which included all requirements of the 1993 rule).

Several minor changes were made to the wording proposed in option 3 in

order to respond to comments, reduce ambiguity, and streamline the

text.

EPA proposed to require network-based models to be validated

against peak and off-peak ground counts for a base year that is not

more than ten years prior to the date of the conformity determination.

The final rule requires validation against ``observed'' counts rather

than ``ground'' counts because the term ``ground'' counts sometimes

implies automobile counts only. In fact, models should be validated

against counts for all modes, including transit, bicycle, and

pedestrian. EPA believes that because ``observed'' counts is a more

general term, it more appropriately conveys the intent of the proposed

requirement.

EPA has also qualified the proposed requirement for validation

against peak and off-peak counts so that validation against both peak

and off-peak counts is only required where it is possible. The November

1993 conformity rule simply required validation against ground counts;

there was no reference to peak and off-peak. When EPA proposed option

3, it did not intend to impose any new or more stringent network

modeling requirements. Since the time of the proposal EPA has become

aware that not all areas collect peak and off-peak counts. As a result,

although EPA continues to believe that validation against peak and off-

peak counts is preferable, the rule only requires it where it is

already possible given available data.

A commenter suggested that the conformity rule should require areas

to validate their models for a second year at least three years before

or after the base year whenever possible. The commenter also suggested

that the rule require validation against peak and off-peak travel

demand, traffic volume, speed, and mode share data for household and

commercial travel. EPA did not incorporate these suggestions in the

conformity rule because the modeling requirements are only intended to

outline minimum practice, and in addition, EPA intends for these

amendments to streamline the existing rule. The EPA/DOT modeling

guidance will have further discussion about best practices and other

advances in validation techniques, and EPA believes that this will be a

better forum to address the commenter's ideas.

This final rule adds to the proposed validation requirement a

sentence specifying that model forecasts must be analyzed for

reasonableness and compared to historical trends and other factors, and

that the results must be documented. This sentence was added for

several reasons. First, a commenter suggested that the conformity rule

should require model forecasts to be compared to documented historical

trends in travel behavior, such as changes in per capita vehicle trips

and VMT, trip length, mode shares, and time-of-day-travel, and require

significant differences between trends and forecasts to be explained.

EPA agrees that this is minimum acceptable practice and has added

language to the conformity rule accordingly. The language that is

included in the final rule is more general than that suggested by the

commenter, and EPA plans for the EPA/DOT modeling guidance to address

the issue in more detail. EPA also added this language because it

better reflects what EPA intended when it proposed that network-based

modeling inputs (such as land use, population, and employment) be

appropriate to the validation base year. This language is consistent

with the proposal on this issue and does not require reproposal prior

to final action.

The second network modeling requirement in the final rule requires

land use, population, employment, and other network-based model

assumptions to be documented and based on the best available

information. The proposal's requirement for these assumptions to be

``appropriate to the validation base year'' has been eliminated in

favor of the new language described above that requires reasonableness

checks as part of validation. A commenter suggested that the proposed

requirement be expanded to refer not only to land use, population, and

employment assumptions, but also demographic and spatial attribute

assumptions. EPA believes that the final rule's reference to ``other

network-based modeling inputs'' is sufficiently inclusive, and

specificity such as the commenter suggests is more appropriate to the

EPA/DOT modeling guidance.

The final rule's third network modeling requirement states that

scenarios of land development and use must be consistent with the

future transportation system alternatives for which emissions are being

estimated. This is substantially similar to the language proposed as

the fourth modeling requirement in option 3, with minor wording

adjustments for the sake of clarity. The final rule also includes a

sentence stating that the distribution of employment and residences for

different transportation options must be reasonable. This statement is

intended

[[Page 43794]]

as further clarification of what was intended by the original proposed

language. Appropriate consideration must be given to how major

anticipated transportation system improvements might influence

development and, in turn, how that might affect the forecasted

distribution of population and employment used to estimate travel and

emissions.

A commenter suggested that instead of the proposed language, EPA

should require that areas make reasonable adjustments to land use

assumptions between scenarios to account for effects of changes in

accessibility on the likely timing and pattern of development, using

the best methods available. EPA does not believe it is appropriate for

the conformity rule to specifically require the use of the ``best''

methods, because cutting-edge practices may not be reasonably available

at the same time in all areas subject to conformity's network modeling

requirements. With this exception, EPA believes that the commenter's

suggestion is basically a restatement of the language that is being

finalized.

The final rule's fourth network modeling requirement states that a

capacity-sensitive assignment methodology must be used. In addition,

emission estimates must be based on a methodology which differentiates

between peak and off-peak link volumes and speeds and uses speeds based

on final assigned volumes. This additional language clarifies the

proposed requirement that ``peak and off-peak travel demand and travel

times must be provided,'' which did not indicate which step in the

modeling process was being referred to. EPA in fact simply intends that

emissions be calculated on the basis of peak and off-peak speeds

separately and applied to peak and off-peak final assigned volumes,

regardless of whether these assigned volumes are based on peak and off-

peak modeling or are modeled on a 24-hour basis.

The final rule's fifth network modeling requirement is based on

Sec. 51.452(b)(1)(iv)/Sec. 93.130(b)(1)(iv) of the November 1993

conformity rule, which requires feedback of travel times resulting from

traffic assignment to travel times used in trip distribution. Although

this requirement was not proposed as part of option 3, EPA received

comments based on proposed option 2 that this requirement of the

original rule should be retained. Commenters pointed out that this type

of consistency in the evaluation of travel time is almost universally

recognized to be scientifically valid. A commenter stated that not

requiring feedback would allow analyses to be manipulated to produce

desired results. Another commenter stated that most MPOs have already

implemented full feedback, and it is easy to perform and more accurate

than partial feedback. Commenters submitted technical reports and

papers to the docket in order to document their claims that full

feedback is recognized to be a necessary and sound modeling

improvement.

EPA agrees with commenters that there is clear theoretical

justification for feedback between traffic assignment and trip

distribution, and that feedback may be essential to accurate forecasts

when congestion exists. In addition, EPA agrees that full feedback is

already widely available and used. As a result, EPA believes it is

appropriate to retain the feedback requirement.

The regulatory language has been slightly modified from the

November 1993 rule to read that zone-to-zone travel impedances used in

trip distribution must be in reasonable agreement with travel times

that are estimated from final assigned traffic volumes. The language

now refers to ``impedances'' rather than ``travel times'' because trip

distribution impedances may reflect more than just vehicle travel time

(e.g., cost, travel times by other modes, etc.). The language refers to

travel times ``estimated from final assigned traffic volumes'' rather

than travel times ``which result from'' traffic assignment in order to

reflect the fact that speeds should be estimated by post-processing

assigned volumes.

The final rule's sixth and final network modeling requirement is

for network-based models to be reasonably sensitive to changes in the

time(s), cost(s), and other factors affecting travel choices. EPA's

proposed option 3 would have required models to be reasonably sensitive

to trip-making changes due to changes in the cost, travel time,

capacity, and quality of all travel choices, if the necessary

information is available. EPA has eliminated the reference to ``trip-

making changes'' because EPA received comments indicating that this

implies a requirement for trip generation to be dependent on

accessibility. This is not what EPA intended. The November 1993

conformity rule strongly encouraged a dependence of trip generation on

the accessibility of destinations, but it was not specifically

required. EPA continues to believe that such a trip generation

requirement is not widely available, minimum practice. In addition to

deleting ``trip-making changes,'' EPA made other modifications to the

proposed requirement in order to streamline the language. By making the

language more general, EPA believes that the qualification ``if the

necessary information is available'' is no longer necessary. EPA has

therefore eliminated this language.

EPA received comment that Sec. 51.452(b)(1)(v)/Sec. 93.130(b)(1)(v)

of the November 1993 conformity rule should be retained in addition to

the other paragraphs proposed as option 3. Section 51.452(b)(1)(v)/

Sec. 93.130(b)(1)(v) of the November 1993 conformity rule required

free-flow speeds on network links to be based on empirical

observations. EPA is not including this requirement in the final rule

because it has been widely misinterpreted, and because issues relating

to the use of speeds in network models are complex enough that they are

best handled in modeling guidance, where they can be fully discussed.

The November 1993 requirement was read by some to require significant

data collection efforts. In fact, EPA had simply intended that

available empirical information be used instead of posted speed limits.

In addition to creating this misinterpretation, the original language

was not clear about which step of the modeling process it referred to,

and whether it was directed at input assumptions or outputs.

EPA believes that this issue warrants a full discussion in the EPA/

DOT modeling guidance, and that the original regulatory requirement

regarding free-flow speeds should be eliminated from the streamlined

rule in order to avoid confusion. However, EPA and DOT would like to

emphasize that input network speed assumptions used in model

application must be consistent with speed assumptions used in model

development and calibration, and that these assumptions and calibration

techniques should be documented. EPA and DOT recognize that free-flow

impedance inputs into traffic assignment may not reflect empirically

observed free-flow speeds, because these input impedances may reflect

considerations that affect travel behavior other than travel time, such

as driver preferences for using specific classes of facilities. If

free-flow impedance inputs used in traffic assignment deviate

significantly from observed free-flow speeds, the documentation should

include a discussion of the differences and rationale for adjustments

made.

In addition, since emissions estimates are extremely sensitive to

vehicle speed, EPA and DOT recommend that speeds be estimated in a

separate step after traffic assignment (also known as ``post-

processing''), using refined speed-

[[Page 43795]]

volume relationships and final assigned traffic volumes. Post-

processed speeds estimated in the validation year should be compared

with speeds empirically observed during the peak and off-peak periods.

These comparisons may be made for typical facilities, for example, by

facility class/area type category. Based on these comparisons, speed-

volume relationships used for speed post-processing should be adjusted

to obtain reasonable agreement with observed speeds. Regardless of the

specific analytical technique, every effort must be made to ensure that

speed estimates are credible and based on a reproducible and logical

analytical procedure.

X. Adding Non-Exempt Projects to the Plan/TIP Without Regional Analysis

A. Description of Final Rule

In today's final rule, EPA is not finalizing the flexibility

proposed in Sec. 93.122(b)(4), which would have allowed projects to be

added to the plan and TIP based on an alternate emissions analysis that

does not use network modeling (for areas that are required to use

network models, i.e., serious and above areas with an urbanized

population over 200,000). This final rule retains the 1993 conformity

rule requirement that every plan/TIP amendment that involves regionally

significant, non-exempt projects requires the same level of regional

emissions analysis. For the purposes of this discussion, a non-exempt

project is any transportation project other than those listed in

Sec. 93.126, ``Exempt projects,'' and Sec. 93.127, ``Projects exempt

from regional emissions analysis.''

Areas that are not serious or above or do not have an urbanized

population over 200,000 are not affected by the proposal or this change

to the proposal, because they are not subject to requirements for

network models.

B. Rationale

Based on stakeholder comments received, EPA has determined that the

flexibility to add projects without a regional emissions analysis would

have to be accompanied by safeguards or limitations that were not

proposed. EPA believes that the restrictions that would have to be

imposed on the flexibility would outweigh its benefits.

EPA agrees with a commenter who pointed out that regulatory

requirements that govern how satisfaction of a conformity test is

demonstrated cannot be removed and replaced with unspecified guidance

that is not subject to notice and comment. EPA believes that the

commenter is correct in asserting that guidelines for how the alternate

emissions analysis would have to be performed would have to be included

in regulatory language, if the flexibility were to be finalized. Such

additional regulatory language would require reproposal because it is a

significant departure from what was originally proposed; EPA did not

propose any specific guidelines or limitations for this flexibility in

either the preamble or regulatory language of the July 9, 1996,

proposal.

Other commenters expressed serious concerns that the flexibility to

add projects without analysis could undermine the coordinated planning

process and achievement of air quality objectives unless some

safeguards are included. Suggestions for limitations and safeguards

included adding minimum criteria for alternate analysis methodology in

the rule; limiting the flexibility to projects which are unlikely to

cause major long-term changes in travel and development patterns;

limiting the flexibility to a certain number of projects per planning

cycle; or requiring that the emissions from the existing plan and TIP

be below a minimum threshold of the applicable emissions budget.

Commenters were also concerned that safeguards needed to be applied

consistently throughout the country. Including such safeguards would

require reproposal, and could result in additional rule complexity that

would hamper use of the proposed flexibility.

Because EPA believes it is legally compelled to include minimum

guidelines for alternate emissions analysis in the regulatory text,

EPA's choice was to either repropose regulatory guidelines and

safeguards or eliminate the proposed flexibility. EPA is choosing the

latter in today's final rule because the few alternate methodologies

suggested by commenters were not sufficient to provide a basis for EPA

to propose general regulatory guidelines. In addition, EPA believes

that additional regulatory text would outweigh the benefits of the

flexibility.

The few methodologies proposed by stakeholders were not sufficient

to form the basis of nationally applicable, minimum guidelines for

alternate emissions analysis. When EPA proposed the flexibility, it was

seeking a procedure that would yield similar results as a full-scale

regional analysis but with less effort. However, the methodologies

suggested by commenters were sketch planning techniques, which are

ancillary to but not substitutes for network modeling. While sketch

planning techniques may be appropriate for certain projects in certain

circumstances, the commenters did not suggest guidelines that would

delineate when sketch planning techniques may be an adequate

approximation or how these techniques could be replicated nationally.

Based on comments received during the development of the proposal

and during the comment period on the proposal itself, EPA and DOT

believe that regulatory constraints on the proposed flexibility would

defeat the flexibility's purpose. Many commenters did not believe EPA

could or should develop alternate analysis techniques that would apply

nationally, because the value of the flexibility would be its

application on a case-by-case basis. In addition, many stakeholders

want the regulatory text to be streamlined and procedural modeling

guidelines to be minimized.

EPA and DOT also believe that the possible benefits of the proposed

flexibility do not warrant the complication of a new set of modeling

guidelines. Commenters have indicated that the proposed flexibility

would not have a large impact on day-to-day implementation of the

conformity rule. Many commenters stated that the flexibility would be

used infrequently, or only in limited circumstances. Some commenters

believe that a full-scale regional analysis is just as easy as using an

alternate sketch planning method. For example, a commenter indicated

that adding a project and running the regional model again is not time-

consuming once the network for the plan has already been coded. EPA and

DOT believe the time and effort spent in developing an alternate

procedure and getting agreement from all involved agencies seems

greater than that involved in running the regional model.

C. Pilot Program

Although EPA did not grant the general analysis flexibility in

today's final rule, EPA and DOT remain willing to consider alternate

procedures on a case-by-case basis for determining the impact of

transportation projects, since a substitute may prove to be more

expeditious and less costly in certain circumstances than a network-

based analysis. Those areas that develop such an alternate procedure

are invited to apply to the conformity pilot program, proposed on July

9, 1996. Given the pilot program's purposes to allow greater

flexibility in implementing the rule and to evaluate potential

improvements to the rule, the pilot program is an appropriate vehicle

for this flexibility.

[[Page 43796]]

XI. Consequences of SIP Disapproval

A. Description of the Rule

EPA is finalizing the primary option in the proposal, which is the

option for which the regulatory text was proposed. In today's final

rule, EPA is also clarifying the definition of a protective finding.

Consequences of SIP disapproval apply when control strategy SIPs are

disapproved. Control strategy SIPs are 15% SIPs, post-1996 SIPs, and

attainment demonstrations.

1. Disapproval With a Protective Finding

When disapproving a control strategy SIP revision, EPA may give the

SIP a protective finding. If EPA disapproves a SIP but gives a

protective finding, the motor vehicle emissions budget in the

disapproved SIP could still be used to demonstrate conformity. There

would be no adverse conformity consequences unless highway sanctions

were imposed, as is the case with respect to all other SIP planning

failures. Highway sanctions would be imposed two years following EPA's

disapproval if the SIP deficiency had not been remedied. The conformity

of the plan and TIP would lapse once highway sanctions were imposed.

EPA would give a protective finding where a submitted SIP contains

adopted control measures or written commitments to adopt enforceable

control measures that fully satisfy the emissions reductions

requirements relevant to the statutory provision for which the SIP was

submitted, such as reasonable further progress (RFP) or attainment.

That is, EPA would give such a submitted SIP a protective finding if it

contains enough emissions reduction measures or commitments to these

measures to achieve its purpose of either demonstrating RFP or

attainment. Like the November 1993 rule, a SIP could receive a

protective finding even if all control measures are not fully adopted

in enforceable form, provided there are written commitments to such

measures. EPA would not give a protective finding to a SIP whose

emission reduction measures or commitments are inadequate to achieve

the required RFP or attainment.

2. Disapproval Without a Protective Finding

In the cases where EPA disapproves a SIP and does not give it a

protective finding, an area has a 120-day grace period, after which the

only transportation projects that could be found to conform would be

those included in the first three years of the currently conforming

transportation plan and TIP. No new plans, TIPs, or plan/TIP amendments

could be found to conform after the grace period. Further, no

additional projects not already in the first three years of the

currently conforming plan and TIP could be found to conform. Since

exempt projects and non-federal projects do not require conformity

determinations, they could proceed as long as they meet other

applicable requirements of the conformity rule (for example, a

regionally significant non-federal project must have been included in

the regional emissions analysis supporting the most recent plan and TIP

conformity determination).

If any one phase of a project is included in the first three years

of the currently conforming plan/TIP, all subsequent phases could

proceed following a disapproval, provided that all phases of the

project were included in the plan/TIP conformity analysis and all other

applicable project-level conformity criteria were satisfied (e.g., hot-

spot requirements).

The ``freeze'' on new transportation plans, TIPs, and projects

would be removed once an area submits another control strategy SIP or

maintenance plan to replace the disapproved SIP, provided EPA does not

find the budget inadequate. If such a replacement SIP does not apply

for conformity purposes by the time Clean Air Act highway sanctions are

imposed (two years after EPA's final disapproval), conformity would

lapse, and no new project-level conformity determinations could be

made, even for projects in the first three years of the plan and TIP.

The lapse would last until a replacement SIP applies for conformity

purposes (i.e., until an adequate replacement SIP has been submitted to

EPA).

During the 120-day grace period, plans, TIPs, and projects could be

found to conform using the budgets from the disapproved SIP, if there

is no applicable replacement SIP for transportation conformity

purposes. This 120-day grace period is intended to allow areas to

complete conformity determinations that were in progress at the time of

EPA's final disapproval. Both the MPO and DOT must have determined

conformity by the end of the 120-day grace period.

As in the previous conformity rule, adverse consequences would

occur following any EPA final disapproval action on a control strategy

SIP without a protective finding, even if the disapproval is limited or

partial. The motor vehicle emissions budget is sufficient for

conformity determinations only if the SIP as a whole satisfies the

Clean Air Act requirements for RFP or attainment. If one part of a SIP

is disapproved without a protective finding, even if that part does not

address mobile sources, then there is no overall strategy for RFP or

attainment, and it is not possible to determine whether consistency

with the motor vehicle emissions budget will result in a level of

emissions consistent with RFP or attainment.

A plan/TIP conformity lapse previously imposed under the November

1993 rule due to SIP disapproval without a protective finding would

convert to a ``freeze'' as described in this notice once this rule

becomes effective, provided highway sanctions have not yet been

imposed. The ``freeze'' would continue until highway sanctions are

imposed, which normally occurs two years after EPA's final disapproval.

Once highway sanctions are imposed, the conformity of the plan and TIP

would lapse, as occurs whether or not the SIP had received a protective

finding.

Finally, EPA wishes to clarify that although the preamble to the

proposal inadvertently indicated that consequences of SIP disapproval

also apply to disapproval of maintenance plans, this is not what EPA

intends nor is it included in the final rule language. Consequences of

SIP disapproval only apply when control strategy SIPs are disapproved.

EPA did not refer to maintenance plans in the relevant regulatory text

of the proposal or the conformity rule as amended in 1995. The

regulatory text would not make sense with respect to maintenance plans

because sanctions do not apply for maintenance plan disapprovals.

Furthermore, there is less need to apply the consequences for

disapproving a maintenance plan, since an area could revert to using

its attainment SIP budget for demonstrating conformity if a maintenance

plan is disapproved.

B. Rationale

EPA believes that the option finalized today provides the best

balance between the competing objectives of minimizing new

transportation commitments after a SIP disapproval and minimizing

disruption to the transportation planning process. EPA believes that

new projects should not be approved when the control strategy SIP has

been disapproved without a protective finding, because if a SIP does

not identify enough emission reductions and the motor vehicle emissions

budget does not provide for RFP or attainment, then there is no basis

to claim that a transportation activity conforms within the meaning of

Clean Air Act section 176(c). Furthermore, adding more transportation

projects may make it

[[Page 43797]]

more difficult for the air agency to create a SIP that achieves

sufficient emissions reductions, and may intensify the need for

additional control strategies later. EPA is allowing areas to

grandfather projects included in the first three years of the currently

conforming plan and TIP in order to provide stability for planning.

Most commenters supported the primary option EPA is finalizing

today, and gave a variety of reasons. Several stakeholders commented

that this option allows some continuity for transportation planning,

since ideally it allows the TIP to continue in the short term while

changes to the SIP are underway. Another commenter noted that since

this option minimizes the disruption of projects in the first three

years of the TIP, it limits the financial and legal risk to local

governments when they undertake local bond programs to finance these

projects. Another commenter noted that SIPs may be disapproved for

numerous reasons outside of the control of the DOT or MPO, and stopping

all transportation projects immediately is not in the public's best

interest. Finally, a commenter added that since the projects that would

be allowed to proceed would have been included in a plan and TIP found

to conform previously, it seems reasonable to allow these projects to

advance.

Some commenters supported aligning the timing of conformity

consequences of SIP disapproval with imposition of highway sanctions,

which was option 4 in the proposal. Commenters suggested that this

option would simplify communication, make the rule more consistent, and

eliminate a perceived inequity with stationary sources. However, for

the reasons stated above, EPA believes that there is no appropriate

basis to find new projects that were not included in the previously

conforming plan/TIP to conform when the SIP has been disapproved

without a protective finding. Commenters supporting option 4 did not

identify a means by which to claim that such projects would not

contribute to violations of the standards.

C. Discussion of Specific Comments

Some objections to the legality of the primary option were raised.

One commenter objected to any project approvals based on plans and TIPs

that have lapsed, since even projects in the first three years cannot

satisfy the statutory test for coming from a conforming plan and TIP if

the conformity of the plan and TIP has lapsed. EPA agrees that projects

cannot be approved if the plan and TIP have lapsed. However, in this

situation, the conformity status of existing plans and TIPs is not

lapsing. The plan and TIP is frozen such that no new projects can be

added, but projects in the first three years can proceed to project-

level approval. EPA is grandfathering plans and TIPs that have already

been found to conform. EPA agrees that new plans and TIPs or plan/TIP

amendments cannot be found to conform after the 120-day grace period.

Another objection raised was that EPA cannot allow plans, TIPs, or

projects to conform based on SIPs that have been disapproved, since

conformity must be based on the applicable implementation plan. EPA

agrees with this statement as well. Today's action makes it clear that

an area cannot find any new projects to conform once the SIP has been

disapproved without a protective finding. EPA is only allowing areas to

approve projects that are within the first three years of a plan and

TIP that has already been found to conform, for the two years prior to

lapsing.

A commenter objected to codification of EPA's committal SIP policy

by the adoption of the definition of ``protective finding'' and the

authorization for protective findings in Sec. 93.120.

EPA responds by clarifying that granting a protective finding does

not codify a committal SIP policy. By giving a SIP a protective

finding, EPA does not mean to imply that these SIPs are in any way

approvable. Rather, by disapproving the SIP, EPA is stating that the

SIP does not meet Clean Air Act SIP requirements. Granting a protective

finding merely allows an area to use the motor vehicle emissions budget

in the disapproved SIP to demonstrate conformity, where appropriate. As

other commenters stated, there are many reasons why a SIP could be

disapproved by EPA, some of which would have nothing to do with the

integrity of the motor vehicle emissions budget. A protective finding

ensures that the transportation community is not penalized as a result

of a SIP failure when the emissions budget in the SIP is adequate to

serve as the basis of a conformity determination.

Finally, a commenter believed that prohibiting any project funding

except for grandfathered projects after the imposition of highway

sanctions (i.e., a conformity lapse) is not consistent with the policy

adopted by Congress for the imposition of sanctions. The commenter

stated that the conformity rule should be revised to explicitly adopt

the policy of prohibiting funding only for highway capacity expansion

while providing funding for all those projects that will improve air

quality identified in Clean Air Act section 179(b)(1)(B). Section

179(b)(1)(B) lists the types of projects that can proceed under

sanctions.

However, sanctions and conformity are two different parts of the

Clean Air Act, and serve quite different purposes. Because certain

activities can proceed under sanctions does not mean that these types

of projects should not have to undergo a conformity analysis prior to

implementation, or should be permanently grandfathered from conformity

requirements. Furthermore, EPA does allow transportation control

measures in approved SIPs to proceed even during a conformity lapse.

This is consistent with the sanctions policy's provision for projects

that benefit air quality to proceed.

XII. Traffic Signal Synchronization

On September 24, 1996, Congress amended the Clean Air Act to state

that traffic signal synchronization projects are exempt from conformity

determinations prior to their funding, approval, or implementation.

However, once these projects are funded, approved, or implemented

(whichever occurs first), they are to be included in the conformity

determinations for future transportation plans, TIPs, and projects.

The final rule reflects this Clean Air Act amendment in new

Sec. 93.128, ``Traffic signal synchronization projects.'' This section

states that traffic signal synchronization projects may be approved,

funded, and implemented without a conformity determination. However,

all subsequent regional emissions analyses required by Secs. 93.118 and

93.119 for transportation plans, TIPs, or projects not from a

conforming plan and TIP must include such regionally significant

traffic signal synchronization projects.

In the preamble to the proposal, prior to congressional action on

this issue, EPA had discussed whether traffic signal synchronization

projects should be exempt from conformity. This topic was included

because several stakeholders had advocated the exemption of signal

synchronization projects on the basis of positive air quality and

congestion mitigation impacts. EPA did not propose to exempt these

projects for reasons explained in the proposal's preamble. EPA received

a few comments on both sides of this issue. However, EPA is now

promulgating this change to the conformity rule without reproposing

because Congress has already amended the Clean Air Act and any

additional comments could not change the outcome. The Clean Air Act has

exempted these projects from advance

[[Page 43798]]

conformity determinations as a matter of law, and EPA is now merely

reflecting this statutory change in the regulations. EPA finds good

cause to dispense with notice and comment because EPA has no discretion

in this matter and is merely clarifying the rule to be consistent with

the amended statute.

XIII. Conformity SIPs

As specified in the original November 1993 conformity rule and

Sec. 51.390(b) of today's final rule, the federal conformity

requirements no longer govern conformity determinations once EPA

approves a state conformity SIP revision. The provisions of the

approved SIP apply instead. Therefore, the new flexibilities found in

today's rulemaking will not take effect in areas that already have an

approved conformity SIP until the state prepares a new conformity SIP

and it is approved by EPA.

Several stakeholders commented that this process could take too

long to give areas adequate relief. Commenters suggested several

possible solutions. For example, EPA could grant relief from the build/

no-build test without the approval of the new conformity SIP, or

today's rule could become effective upon submission of a formal

statement that the state is preparing a new conformity SIP. These

suggestions cannot be implemented because once EPA approves a state's

conformity SIP, that SIP becomes federally enforceable law, and cannot

be changed without notice-and-comment rulemaking. The conformity rule

itself cannot change the applicability of approved conformity SIPs.

Another commenter suggested that EPA add language to the rule to

automatically approve conformity SIPs that adopt the EPA language by

reference. However, SIP approval requires public notice and comment in

the Federal Register in accordance with the APA; it cannot be given

automatically. Furthermore, there are sections of the conformity SIP,

for example, the consultation section, that cannot be adopted by

reference or verbatim because they must be tailored for the state's own

circumstances.

However, EPA understands areas' desire to determine conformity

using the procedures in today's final rule, and EPA will give priority

to processing conformity SIP revisions designed to incorporate these

changes in those areas with approved conformity SIPs. EPA also commits

to expedite the approval of conformity SIP revisions that, to the

extent possible, incorporate the amendments verbatim or by reference.

EPA is requiring conformity SIPs to be submitted to EPA within 12

months of today's rulemaking. One commenter stated that the 12-month

timeframe for revising conformity SIPs is too short given that state

air quality agencies would have to hire new staff to accomplish the

task, and that 12 months is inconsistent with the Clean Air Act

provisions that allow 18 months after a SIP call for an area to remedy

its deficiencies. EPA agrees that experience has shown 12 months to be

a very ambitious deadline. However, Clean Air Act section 176(c)(4)(C)

is very specific in its intent that states submit conformity SIPs

within 12 months of EPA's rules. EPA does not believe that the Clean

Air Act's general language regarding SIP calls should be used to

override the specific timeframe for submitting conformity SIPs that is

evidenced in Clean Air Act section 176(c)(4)(C). In the case of a SIP

call, EPA is allowed to establish reasonable deadlines not to exceed 18

months for an area to correct its SIP inadequacies. However, because it

cannot be argued that revising a conformity SIP to include these

amendments is more time-consuming than preparing an original conformity

SIP, there is no appropriate basis to claim that the general SIP call

language should override the specific intent of Congress regarding

deadlines for submission of conformity SIPs relative to promulgation of

federal conformity rules.

XIV. Hot-Spot Tests

Most commenters supported the clarification to Sec. 93.123,

``Procedures for determining localized CO and PM-10 concentrations

(hot-spot analysis),'' which allows the use of procedures other than

``Guideline'' models in hot-spot analyses if the alternate procedures

are developed through the interagency consultation process and are

approved by the EPA Regional Administrator.

A few commenters believed that the CO hot-spot requirements for all

projects affecting intersections of level of service (LOS) D, E, and F

are too stringent and burdensome when compared to the realized benefits

from such analyses. Other commenters thought that the requirements were

too prescriptive, because LOS D does not automatically indicate an air

quality problem. One commenter suggested that the conformity rule

should only require hot-spot analyses for the worst, most

representative intersection on each major street impacted by a project,

rather than all intersections that fit the current rule's hot-spot

criteria. EPA believes no change to the proposal is necessary to

address these concerns because it does have flexibility that allows

areas to develop their own protocols that have different screening

mechanisms.

A few commenters suggested that the conformity rule should be

clarified to allow projects which decrease the likelihood of public

exposure to exceedances of the NAAQS. For example, commenters stated

that a project should be allowed to make a violation worse in a place

not frequented by the public if it improves air quality and eliminates

violations where public exposure is more likely. However, Clean Air Act

section 176(c)(1)(B) states that transportation projects must not cause

or contribute to any new violation of any standard in any area, or

increase the frequency or severity of any existing violation of any

standard in any area. It is not public exposure to a violation of a

standard that the Clean Air Act language prohibits; it prohibits any

violation of any standard in any area. The conformity rule cannot

override the Clean Air Act to make exceptions that create new or worsen

existing violations.

XV. TCM Flexibility

As discussed in the proposal preamble, EPA remains committed to

issuing guidance on how areas can substitute TCMs in previously

approved SIPs without additional EPA approvals. EPA also stated in the

proposal that development of such a substitution mechanism is possible

under existing EPA SIP policy, so this final rule does not address the

issue.

XVI. Conformity and the Proposed NAAQS Revisions

Several commenters requested information on how the revisions of

the ozone and particulate matter (PM) NAAQS standards would affect

conformity. EPA issued a notice of proposed policy entitled, ``Interim

Implementation Policy on New or Revised Ozone and Particulate Matter

NAAQS'' (61 FR 65752, December 13, 1996), which proposes how current

programs would be affected while states are developing plans to

implement the new NAAQS. This proposed policy notice specifically

discusses conformity. A final policy for implementing the one hour

ozone and pre-existing PM NAAQS will be published in the Federal

Register in September 1997.

EPA proposed in its December 1996 notice that conformity

determinations would not be required to address the new NAAQS until

SIPs addressing the new NAAQS are approved by EPA. New nonattainment

areas would not be subject to conformity until EPA approves the SIPs

that address these

[[Page 43799]]

standards. Existing nonattainment and maintenance areas would not have

to consider the 8-hour ozone standard or the PM-2.5 standard in their

conformity determinations until EPA approved SIPs addressing those

pollutants.

In general, the existing control strategy SIPs and maintenance

plans that establish motor vehicle emissions budgets will remain in

force until they are superseded by new or revised SIPs that have been

approved by EPA. Thus, conformity will continue as usual in existing

nonattainment and maintenance areas for several years. Areas that have

not submitted post-1996 rate-of-progress plans or attainment

demonstrations for the one hour ozone standard would be required to

conform to the 15% SIP until a post-1996 plan or new attainment

demonstration is submitted.

In such areas, conformity to that plan would not be required, and

these areas would continue to demonstrate conformity to the 15% SIP.

Areas that are not required to submit control strategy SIPs (e.g.,

marginal areas) and have not been demonstrating conformity to motor

vehicle emissions budgets would be required to continue demonstrating

conformity using the emission reduction tests until SIPs with motor

vehicle emissions budgets are submitted. Areas with approved

maintenance plans would continue demonstrating conformity using the

budgets established by those plans.

States are free to establish, through the SIP process, a motor

vehicle emissions budget that addresses the new NAAQS in advance of a

complete SIP attainment demonstration. That is, a state could submit a

motor vehicle emissions budget that does not demonstrate attainment but

is consistent with projections and commitments to control measures and

achieves some progress toward attainment. Such a budget would apply for

conformity purposes in addition to existing budgets addressing the old

NAAQS (i.e., a SIP that does not demonstrate attainment of the new

NAAQS would not supersede existing control strategy SIPs).

Today's final conformity rule does not include any changes

specifically intended to address the NAAQS revisions. No changes are

necessary in the short term because the existing conformity process

will continue for several years. The Federal Advisory Committee Act

(FACA) Subcommittee for Ozone, PM and Regional Haze Implementation

Programs is discussing the longer-term conformity issues, and EPA's

decisions will be published in future policy notices. In addition, EPA

will be promulgating a conformity rule addressing transitional ozone

areas under the new standard by December 1998.

XVII. Minor Changes to the Rule

A. Definitions

This final rule includes three new definitions in Sec. 93.101. For

the purposes of this final rule, EPA has defined ``written commitment''

to mean a commitment that includes a description of the action to be

taken; a schedule for the completion of the action; a demonstration

that funding necessary to implement the action has been authorized by

the appropriating or authorizing body; and an acknowledgment that the

commitment is an enforceable obligation under the SIP. The conformity

rule uses the term ``written commitment'' with respect to SIP

commitments to control measures, and also with respect to commitments

to project-level emissions mitigation or control measures as part of a

conformity determination. As described in Sec. 93.125(c), these latter

commitments are enforceable under the conformity SIP. As is the case

with any other type of SIP commitments, written commitments as defined

by the conformity rule must be made by an agency that has legal

authority to implement the action in question.

EPA is defining the term ``written commitment'' because a commenter

requested it, and EPA agrees that this will ease implementation by

clarifying EPA's intent. This definition is consistent with EPA's

historical implementation of the conformity rule.

EPA is also defining the term ``safety margin'' to mean the amount

by which the total projected emissions from all sources of a given

pollutant are less than the total emissions that would satisfy the

applicable Clean Air Act requirement for reasonable further progress,

attainment, or maintenance. EPA has added a reference to that term in

Sec. 93.118(e)(4), which lists the requirements for the adequacy of

submitted SIPs. This section specifies that documentation of any

changes to established safety margins is a criterion for the adequacy

of a submitted SIP. The term ``safety margin'' is also used in

Sec. 93.124(b), although it is used and defined in that section in a

specific context. This definition is consistent with the historical

implementation of the conformity rule and with the definition in

Sec. 93.124(b).

EPA is defining ``lapse'' to mean that the conformity determination

for a transportation plan or TIP has expired, and thus there is no

currently conforming transportation plan and TIP.

B. Consultation

EPA is making two minor changes to the consultation section in

response to comments on the proposal. One commenter suggested that the

public consultation requirements of Sec. 93.105(e) should be included

in the conformity SIP. EPA agrees with this commenter and has modified

Sec. 93.105(a) to clarify that the public consultation requirements

described in Sec. 93.105(e) must also be required by the conformity

SIP. Because the federal conformity rule ceases to apply once the

conformity SIP has been approved, the requirements of Sec. 93.105(e)

must be required by the conformity SIP or the SIP would not provide for

appropriate public input.

Section 93.105(e) requires public consultation consistent with the

requirements of 23 CFR 450.316(b) and articulates a few specific

requirements. EPA intends for the conformity SIP to reiterate these

statements; EPA does not intend for the conformity SIP to actually

include the specific public consultation procedures that an area

develops under 23 CFR 450.316(b).

EPA is also adding a new element to the list of processes for which

consultation procedures must be developed. Section 93.105(c)(1)(vii)

requires areas to establish a process for choosing conformity tests and

methodologies for isolated rural nonattainment and maintenance areas,

as required by Sec. 93.109(g)(2)(iii). (Refer to section V. of this

preamble, ``Rural Nonattainment and Maintenance Areas'' for a

discussion of the choices of conformity tests that are available to

rural areas.) Of course, states without isolated rural nonattainment

and maintenance areas would not need to develop such procedures.

As explained in the proposal preamble, EPA had not proposed to

amend Sec. 51.402/Sec. 93.105 of the original conformity rule to add

this element to the list of processes for which consultation procedures

must be developed, because EPA believed it was clear that consultation

would be necessary to use the new rural provision. Commenters had mixed

opinions about whether and how the new consultation needs should be

integrated into the conformity rule. Some commenters did not believe

that the conformity rule needed to be changed. However, some thought

that further guidance regarding necessary changes in areas'

consultation procedures would be useful. Given these comments, EPA

decided to add the new consultation requirement to the conformity rule

for clarity and so that the rule could serve as a comprehensive

[[Page 43800]]

list of items that consultation procedures must address.

One commenter requested that EPA explain that Memoranda of

Understanding, or MOUs, can be used to establish interagency

consultation procedures. The commenter is correct that MOUs can be used

to establish interagency consultation procedures, provided that the MOU

is enforceable under state law. In order for the MOU to be enforceable,

all agencies that are covered by the conformity rule must sign the MOU,

including federal agencies and the recipients of funds designated under

title 23 U.S.C. or the Federal Transit Laws (i.e., non-federal project

sponsors). In addition, the conformity SIP must include a rule that

requires all future parties covered by the rule, including new

recipients of funds designated under title 23 U.S.C. or the Federal

Transit Laws, to sign the MOU. This ensures that the MOU approach will

continue to apply to all subject parties. EPA does not believe that any

regulatory changes are needed to address this issue.

C. Changes to Sec. 93.109

Section 93.109, ``Criteria and procedures for determining

conformity of transportation plans, programs, and projects: General,''

describes which conformity tests apply and when they apply for each

pollutant and for rural areas. This section has been revised to reflect

changes discussed elsewhere in this preamble. In addition, this section

has been slightly revised so that its description of conformity

requirements does not refer solely to an area's nonattainment

classification. The section now also refers to the control strategy SIP

requirements for a given classification. EPA believes this clarifies

the conformity rule and makes it more flexible in the case of future

revisions to the classification system, which could occur if the NAAQS

are revised. These clarifications do not change the substance of the

section's requirements.

XVIII. Administrative Requirements

A. Administrative Designation

Executive Order 12866

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

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

and therefore subject to OMB review and the requirements of the

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

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

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

or otherwise adversely affect in a material way the economy, a sector

of the economy, productivity, competition, jobs, the environment,

public health or safety, or state, local, or tribal governments or

communities;

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

action taken or planned by another agency;

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

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

thereof;

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

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

Order.

Pursuant to the terms of Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action''

because this action raises novel legal or policy issues arising out of

legal mandates, the President's priorities, and the principles set

forth in the Executive Order. As such, this action was submitted to OMB

for review. Changes made in response to OMB suggestions or

recommendations will be documented in the public record.

B. Paperwork Reduction Act

This final rule does not impose any new information collection

requirements and results in no change to the currently approved

collection requirements. OMB has approved the information collection

requirements contained in this rule under the provisions of the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

The information collection requirements of EPA's Transportation

Conformity Rule and these amendments to it are covered under the

Information Collection Request of the Department of Transportation

entitled, ``Metropolitan and Statewide Transportation Planning,''

approved by OMB under the Paperwork Reduction Act, and assigned OMB

Control Number 2132-0529.

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, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required

to respond to a collection of information unless it displays a

currently valid OMB control number. The OMB control numbers for DOT's

regulations are listed in 5 CFR Part 1320.

Send any comments on the recordkeeping and reporting requirements

of Transportation Conformity to: Mr. Sean Libberton, U.S. Department of

Transportation, TPL11, 400 7th Street, SW., Washington, DC 20590, and

Office of Information and Regulatory Affairs, Office of Management and

Budget, Attention: Desk Officer for EPA/OAR, Room 10202, 725 17th

Street, NW., Washington, DC 20503. In any correspondence please refer

to OMB Control Number 2132-0529.

C. Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980 requires federal agencies to

identify potentially adverse impacts of federal regulations upon small

entities. In instances where significant impacts are possible on a

substantial number of these entities, agencies are required to perform

a Regulatory Flexibility Analysis (RFA).

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

significant impact on a substantial number of small entities. This

regulation affects federal agencies and metropolitan planning

organizations, which by definition are designated only for metropolitan

areas with a population of at least 50,000. These organizations do not

constitute small entities.

Therefore, as required under section 605 of the Regulatory

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

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

entities.

D. Submission to Congress and the Comptroller General

Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

E. 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

[[Page 43801]]

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. These rule amendments relax requirements of

the previously applicable conformity rule, and thus do not impose any

additional burdens. 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,

Air pollution control, Carbon monoxide, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Transportation, Volatile organic compounds.

40 CFR Part 93

Administrative practice and procedure, Air pollution control,

Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Transportation, Volatile organic compounds.

Dated: July 31, 1997.

Carol M. Browner,

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 is revised to read as

follows:

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

2. Subpart T is revised to read as follows:

Subpart T--Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed, Funded or

Approved Under Title 23 U.S.C. or the Federal Transit Laws

Sec. 51.390 Implementation plan revision.

(a) States with areas subject to this subpart and part 93, subpart

A, of this chapter must submit to the EPA and DOT a revision to their

implementation plan which contains criteria and procedures for DOT,

MPOs and other State or local agencies to assess the conformity of

transportation plans, programs, and projects, consistent with this

subpart and part 93, subpart A, of this chapter. This revision is to be

submitted by November 25, 1994 (or within 12 months of an area's

redesignation from attainment to nonattainment, if the State has not

previously submitted such a revision). Further revisions to the

implementation plan required by amendments to part 93, subpart A, of

this chapter must be submitted within 12 months of the date of

publication of such final amendments. EPA will provide DOT with a 30-

day comment period before taking action to approve or disapprove the

submission. A State's conformity provisions may contain criteria and

procedures more stringent than the requirements described in 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.

(b) 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. Following EPA approval of the State conformity provisions (or

a portion thereof) in a revision to the applicable implementation plan,

conformity determinations would be governed by the approved (or

approved portion of the) State criteria and procedures. The Federal

conformity regulations contained in part 93, subpart A, of this chapter

would apply only for the portion, if any, of the State's conformity

provisions that is not approved by EPA. In addition, any previously

applicable implementation plan conformity requirements remain

enforceable until the State submits a revision to its applicable

implementation plan to specifically remove them and that revision is

approved by EPA.

(c) The implementation plan revision required by this section must

meet all of the requirements of part 93, subpart A, of this chapter.

(d) In order for EPA to approve the implementation plan revision

submitted to EPA and DOT under this subpart, the plan must address all

requirements of part 93, subpart A, of this chapter in a manner which

gives them full legal effect. In particular, the revision shall

incorporate the provisions of the following sections of part 93,

subpart A, of this chapter in verbatim form, except insofar as needed

to clarify or to give effect to a stated intent in the revision to

establish criteria and procedures more stringent than the requirements

stated in the following sections of this chapter: Secs. 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.

PART 93--[AMENDED]

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

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

4. Subpart A is revised to read as follows:

Subpart A--Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed, Funded or

Approved Under Title 23 U.S.C. or the Federal Transit Laws

Sec.

93.100 Purpose.

93.101 Definitions.

93.102 Applicability.

93.103 Priority.

93.104 Frequency of conformity determinations.

93.105 Consultation.

93.106 C

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