ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2008-0540; FRL_XXXX-X]

RIN 2060-AP29

Transportation Conformity Rule PM2.5 and PM10 Amendments

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed Rule.

SUMMARY:  EPA is proposing amendments to the transportation conformity
rule that primarily affect conformity’s implementation in PM2.5 and
PM10 nonattainment and maintenance areas.  EPA is proposing to update
the transportation conformity regulation in light of the October 17,
2006 final rule that strengthened the 24-hour PM2.5 air quality standard
and revoked the annual PM10 standard.  In addition, EPA is proposing to
clarify the regulations concerning hot-spot analyses to address a remand
from the Court of Appeals for the District of Columbia Circuit
(Environmental Defense v. EPA, 509 F.3d 553(D.C. Cir. 2007). This
portion of the proposal applies to PM2.5 and PM10 nonattainment and
maintenance areas as well as carbon monoxide nonattainment and
maintenance areas.

The Clean Air Act requires federally supported transportation plans,
transportation improvement programs, and projects to be consistent with
(“conform to”) the purpose of the state air quality implementation
plan.  DOT is EPA’s federal partner in implementing the transportation
conformity regulation.  EPA has consulted with DOT, and they concur with
this proposed rule.

DATES:  Written comments on this proposal must be received on or before
[insert date 30 days after publication in the Federal Register], unless
a public hearing is requested by [insert date 10 days after publication
in the Federal Register].  If a public hearing is requested by a
commenter, it will be held [insert date 20 days after publication in the
Federal Register] at the U.S. Environmental Protection Agency, 2000
Traverwood Drive, Ann Arbor, Michigan.  If a hearing is requested,
written comments must be received by [insert date 45 days after
publication in the Federal Register].

ADDRESSES:  Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2008-0540, by one of the following methods:

  HYPERLINK "http://www.regulations.gov"  www.regulations.gov : Follow
the on-line instructions for submitting comments.

Email<EMAIL_ADDRESS>
Fax:<PHONE_NUMBER>

Mail: Air Docket, Environmental Protection Agency, Mailcode: 2822T, 1200
Pennsylvania Ave., NW, Washington, D.C., 20460, Attention Docket ID No.
EPA-HQ-OAR-2008-0540.  Please include a total of two copies.

Hand Delivery:  Air Docket, Environmental Protection Agency, Mailcode:
EPA West Building, EPA Docket Center (Room 3334), 1301 Constitution
Ave., NW, Washington, D.C., Attention Docket ID No.
EPA-HQ-OAR-2008-0540.  Please include two copies. Such deliveries are
only accepted during the Docket’s normal hours of operation, and
special arrangements should be made for deliveries of boxed information.

Instructions:  Direct your comments to Docket ID No.

EPA-HQ-OAR-2008-0540.  EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at   HYPERLINK "http://www.regulations.gov"
www.regulations.gov , including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to be
CBI or otherwise protected through www.regulations.gov or e-mail.  The
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  website is
an “anonymous access” system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment.  If you send an e-mail comment directly to EPA without
going through www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet.  If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit.  If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment.  Electronic files should avoid the
use of special characters, any form of encryption, and be free of any
defects or viruses.  For additional information about EPA’s public
docket visit the EPA Docket Center homepage at   HYPERLINK
"http://www.epa.gov/epahome/dockets.htm"
http://www.epa.gov/epahome/dockets.htm .  For additional instructions on
submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION
section of this document.

Docket:  All documents in the docket are listed in the   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  index.  Although
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute.
Certain other material, such as copyrighted material, will be publicly
available only in hard copy.  Publicly available docket materials are
available either electronically in   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  or in hard copy at
the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW, Washington, DC.  The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays.  The telephone number for the Public Reading Room is (202)
566-1744 and the telephone number for the Air and Radiation Docket is
(202) 566-1742.

Public Hearing:  If a public hearing is requested, it will be held at
the U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann
Arbor, Michigan, on [insert date 20 days after publication in the
Federal Register].

FOR FURTHER INFORMATION CONTACT:  Laura Berry, State Measures and
Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, e-mail address:   HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>, telephone number:<PHONE_NUMBER>, fax number:
(734) 214-4052; or Patty Klavon, State Measures and Conformity Group,
Transportation and Regional Programs Division, Environmental Protection
Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105, e-mail address:
HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>,
telephone number:<PHONE_NUMBER>, fax number:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

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

I.		General Information

II.	Background on the Transportation Conformity Rule

III.	General Overview of Transportation Conformity for the 2006 PM2.5
NAAQS

IV.  	Baseline Year for Certain 2006 PM2.5 Nonattainment Areas

V.	Regional Conformity Tests in 2006 PM2.5 Nonattainment Areas That Do
Not Have Adequate or Approved SIP Budgets for the 1997 PM2.5 NAAQS

VI.	Regional Conformity Tests in 2006 PM2.5 Areas That Have 1997 PM2.5
SIP Budgets

VII.	Other Conformity Requirements for 2006 PM2.5 Areas

VIII.	Transportation Conformity in PM10 Nonattainment and Maintenance
Areas and the Revocation of the Annual PM10 NAAQS

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

X.	Statutory and Executive Order Reviews

I.	General Information

A.	Does this Action Apply to Me?

Entities potentially regulated by the conformity rule are those that
adopt, approve, or fund transportation plans, programs, or projects
under title 23 U.S.C. or title 49 U.S.C.  Regulated categories and
entities affected by today’s action include:

Category	Examples of regulated entities

Local government	Local transportation and air quality agencies,
including metropolitan planning organizations (MPOs).

State government	State transportation and air quality agencies.

Federal government	Department of Transportation (Federal Highway
Administration (FHWA) and Federal Transit Administration (FTA)).

	This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
proposal.  This table lists the types of entities of which EPA is aware
that potentially could be regulated by the transportation conformity
rule.  Other types of entities not listed in the table could also be
regulated.  To determine whether your organization is regulated by this
action, you should carefully examine the applicability requirements in
40 CFR 93.102.  If you have questions regarding the applicability of
this action to a particular entity, consult the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.

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

  SEQ CHAPTER \h \r 1 1.	Submitting CBI

	Do not submit this information to EPA through www.regulations.gov or
e-mail.  Clearly mark the part or all of the information that you claim
to be CBI.  For CBI information in a disk or CD ROM that you mail to
EPA, mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI.  In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket.  Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR Part
2.

2.	Tips for Preparing Your Comments

	When submitting comments, remember to:

Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).

Follow directions - The Agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.

Explain why you agree or disagree, suggest alternatives and substitute
language for your requested changes.

Describe any assumptions and provide any technical information and/or
data that you used.

If you estimate potential costs or burdens, explain how you arrived at
your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest
alternatives.

Explain your views as clearly as possible, avoiding the use of profanity
or personal threats.

Make sure to submit your comments by the comment period deadline
identified.

3.	Docket Copying Costs

	You may be required to pay a reasonable fee for copying docket
materials.

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

Documents?

1.	Docket

	EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-2008-0540.  You can get a paper copy of this
Federal Register document, as well as the documents specifically
referenced in this action, any public comments received, and other
information related to this action at the official public docket.  See
the ADDRESSES section for its location.

2.	Electronic Access

	You may access this Federal Register document electronically through
EPA’s Transportation Conformity website at
http://www.epa.gov/otaq/stateresources/transconf/index.htm.  You may
also access this document electronically under the Federal Register
listings at     HYPERLINK "http://www.epa.gov/fedrgstr/."
http://www.epa.gov/fedrgstr/ .

	An electronic version of the official public docket is available
through   HYPERLINK "http://www.regulations.gov"  www.regulations.gov .
You may use   HYPERLINK "http://www.regulations.gov"
www.regulations.gov  to submit or view public comments, access the index
listing of the contents of the official public docket, and to access
those documents in the public docket that are available electronically.
Once in the system, select “search,” then key in the appropriate
docket identification number.

	Certain types of information will not be placed in the electronic
public docket.  Information claimed as CBI and other information for
which disclosure is restricted by statute is not available for public
viewing in the electronic public docket.  EPA’s policy is that
copyrighted material will not be placed in the electronic public docket
but will be available only in printed, paper form in the official public
docket.

To the extent feasible, publicly available docket materials will be made
available in the electronic public docket.  When a document is selected
from the index list in EPA Dockets, the system will identify whether the
document is available for viewing in the electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in the ADDRESSES section.  EPA intends to
provide electronic access in the future to all of the publicly available
docket materials through the electronic public docket.

	Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to the electronic public
docket.  Public comments that are mailed or delivered to the docket will
be scanned and placed in the electronic public docket.  Where practical,
physical objects will be photographed, and the photograph will be placed
in the electronic public docket along with a brief description written
by the docket staff.

	For additional information about the electronic public docket, visit
the EPA Docket Center homepage at   HYPERLINK
"http://www.epa.gov/epahome/dockets.htm"
http://www.epa.gov/epahome/dockets.htm .

II.	Background on the Transportation Conformity Rule

A.	What Is Transportation Conformity?

Transportation conformity is required under Clean Air Act section 176(c)
(42 U.S.C. 7506(c)) to ensure that transportation plans, transportation
improvement programs (TIPs) and federally supported highway and transit
project activities are consistent with (“conform to”) the purpose of
the state air quality implementation plan (SIP).   Conformity to the
purpose of the SIP means that transportation activities will not cause
new air quality violations, worsen existing violations, or delay timely
attainment of the relevant national ambient air quality standards
(NAAQS).  Transportation conformity applies to areas that are designated
nonattainment, and those areas redesignated to attainment after 1990
(“maintenance areas”) for transportation-related criteria
pollutants:  carbon monoxide (CO), ozone, nitrogen dioxide (NO2) and
particulate matter (PM2.5, and PM10).

EPA’s transportation conformity rule (40 CFR Parts 51 and 93)
establishes the criteria and procedures for determining whether
transportation activities conform to the SIP.  EPA first promulgated the
transportation conformity rule on November 24, 1993 (58 FR 62188), and
subsequently published several other amendments.  DOT is EPA’s federal
partner in implementing the transportation conformity regulation.  EPA
has consulted with DOT, which concurs with this proposed rule.

A few recent amendments to the transportation conformity rule are useful
background for today’s proposal.  In a final rule EPA published on
July 1, 2004 (69 FR 40004), EPA provided conformity procedures for state
and local agencies under the 1997 8-hour ozone and PM2.5 national
ambient air quality standards (NAAQS), among other things.  EPA’s
nonattainment area designations for the 1997 8-hour ozone and PM2.5
NAAQS were effective in June 2004 and April 2005 respectively.  The July
2004 update provided guidance and rules for implementing conformity for
these NAAQS.  In addition, on May 6, 2005, EPA promulgated a final rule
entitled, “Transportation Conformity Rule Amendments for the New PM2.5
National Ambient Air Quality Standard: PM2.5 Precursors” (70 FR
24280).  This final rule specified transportation-related PM2.5
precursors and when they must be considered in transportation conformity
determinations in PM2.5 nonattainment and maintenance areas.

	On March 10, 2006, EPA promulgated a final rule (71 FR 12468) entitled,
“PM2.5 and PM10 Hot-Spot Analyses in Project-Level Transportation
Conformity Determinations for the New PM2.5 and Existing PM10 National
Ambient Air Quality Standards.”  This rule established the criteria
and procedures for determining which transportation projects must be
analyzed for local air quality impacts – or “hot-spots” – in
PM2.5 and PM10 nonattainment and maintenance areas.  See Section IX. of
today’s preamble for more information regarding the March 2006 rule;
see EPA’s website at   HYPERLINK
"http://www.epa.gov/otaq/stateresources/transconf/index.htm"
http://www.epa.gov/otaq/stateresources/transconf/index.htm  for further
information about any of EPA’s transportation conformity rulemakings.

B.	Why Are We Issuing This Proposed Rule?

Today’s proposed rule is necessary because EPA promulgated a final
rule on October 17, 2006 that changed the PM2.5 and PM10 NAAQS, as
described further below.  These revisions to the PM2.5 and PM10 NAAQS
necessitate an update to the transportation conformity rule to provide
guidance and rules for implementing conformity for these NAAQS.
Sections III. through VIII. describe the proposed changes to the
transportation conformity rule that are a result of the October 2006
revisions to the PM2.5 and PM10 NAAQS.

Today’s proposed rule is also necessary because of a court decision
regarding the March 2006 hot-spot rulemaking.  Section IX. of this
preamble describes the issue, the court’s decision, and EPA’s
proposed response.

III.	General Overview of Transportation Conformity for the

2006 PM2.5 NAAQS

A.	Background on 2006 PM2.5 NAAQS Development

EPA issued a final rule on October 17, 2006 that strengthened the
24-hour PM2.5 NAAQS and revoked the annual PM10 NAAQS (71 FR 61144).  In
that final rule, EPA strengthened the 24-hour PM2.5 NAAQS from the 1997
level of 65 micrograms per cubic meter (µg/m3) to 35 µg/m3, and
retained the 1997 annual PM2.5 NAAQS of 15.0 µg/m3. This final rule was
effective on December 18, 2006.  EPA selected levels for the final NAAQS
after completing an extensive review of thousands of scientific studies
on the impact of fine and coarse particles on public health and welfare.
 For additional information about the October 17, 2006 rulemaking, the
final rule and EPA outreach materials can be found at:   HYPERLINK
"http://www.epa.gov/air/particlepollution/actions.html"
http://www.epa.gov/air/particlepollution/actions.html .

The October 2006 rule establishing the 2006 PM2.5 NAAQS did not revoke
the 1997 annual or 24-hour PM2.5 NAAQS.  See Section D. below for
details on how this proposal would interact with conformity requirements
for those areas designated nonattainment for the 1997 PM2.5 NAAQS.

EPA issued the final Federal Register notice designating areas for the
2006 PM2.5 NAAQS on December 22, 2008 with an effective date of
[placeholder] 2009 for the designations.  Given this effective date of
designations, conformity for this NAAQS would apply by [placeholder]
2010 as described below.  These designations are separate from and do
not impact existing designations for the 1997 PM2.5 NAAQS.  For EPA’s
current timeline regarding the designations process for the 2006 PM2.5
NAAQS, please see EPA’s website at:    HYPERLINK
"http://www.epa.gov/pm/naaqsrev2006.html"
http://www.epa.gov/pm/naaqsrev2006.html .

B.	When Does Conformity Apply for the 2006 PM2.5 NAAQS?

Transportation conformity for the 2006 24-hour PM2.5 NAAQS (“2006
PM2.5 NAAQS”) does not apply until one year after the effective date
of nonattainment designations for this NAAQS.  Clean Air Act section
176(c)(6) and 40 CFR 93.102(d) provide a one-year grace period from the
effective date of designations before transportation conformity applies
in areas newly designated nonattainment for a particular NAAQS.

The following discussion provides more details on the application of the
one-year grace period in specific types of newly designated
nonattainment areas for the 2006 PM2.5 NAAQS in metropolitan, donut and
isolated rural areas.  This information is consistent with how
conformity for new NAAQS has been implemented in the past.

Metropolitan Areas

Metropolitan areas are urbanized areas that have a population greater
than 50,000 and a designated metropolitan planning organization (MPO)
responsible for transportation planning per 23 U.S.C. 134.  The one-year
grace period means that, in general, within one year after the effective
date of the initial nonattainment designation for a given pollutant and
NAAQS, the area’s MPO and DOT must make a conformity determination
with regard to that pollutant and NAAQS for the area’s transportation
plan and TIP.  The procedures for interagency consultation process found
in 40 CFR 93.105 or a state’s approved conformity SIP must be used in
making conformity determinations for transportation plans and TIPs.
MPOs must continue to meet conformity requirements for any other
applicable NAAQS, including the 1997 PM2.5 NAAQS, if the area is
designated nonattainment or maintenance for such NAAQS as well.

The one-year grace period for conformity also applies to project-level
conformity determinations (including hot-spot analyses in certain cases)
in newly designated 2006 PM2.5 nonattainment areas.  At the end of the
one-year grace period for conformity, requirements for project-level
conformity determinations must be met for the 2006 PM2.5 NAAQS before
any new federal approvals for such projects can occur.  For non-exempt
Federal Highway Administration (FHWA) or Federal Transit Administration
(FTA) projects, a conformity determination is normally required before
the National Environmental Policy Act (NEPA) process is completed, since
NEPA is typically the first stage requiring approval in a federal
project’s development.  However, if the NEPA process was completed
before conformity applies, then areas that are newly designated as
nonattainment may also be required to demonstrate conformity for
subsequent funding and approvals for project phases (e.g., right-of-way
acquisition, final design, construction).  Conformity would be needed
for a subsequent project phase if it occurs after the grace period has
ended, and the project has not yet been included in a conformity
determination for the relevant pollutant and NAAQS or met other
applicable conformity requirements.

Before the end of the one-year grace period, FHWA or FTA could
voluntarily choose to make a project-level conformity determination that
meets the conformity rule’s requirements.  The procedures for
interagency consultation found in 40 CFR 93.105 or a state’s approved
conformity SIP must be used in making project-level conformity
determinations for the 2006 PM2.5 NAAQS.  As described further below in
D. of this section, areas that are designated nonattainment for both the
1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS will need to address all of
these NAAQS in conformity determinations.  These areas may be able to
take advantage of efficiencies to reduce additional burden.

If, at the conclusion of the one-year grace period, the MPO and DOT have
not made a transportation plan and TIP conformity determination for the
relevant pollutant and NAAQS, the area would be in a conformity
“lapse.”  During a conformity lapse, only certain projects can
receive additional federal funding or approvals to proceed (e.g. exempt
projects, project phases that were approved before the lapse).  The
practical impact of a conformity lapse will vary on an area-by-area
basis.  For additional information on projects that can proceed during a
conformity lapse, read the following guidance memoranda that address the
March 2, 1999 U.S. Court of Appeals decision that affected related
provisions of the conformity rule (Environmental Defense Fund v. EPA,
167 F.3d 641 (D.C. Cir. 1999):  DOT’s January 2, 2002 guidance,
published in the Federal Register on February 7, 2002 (67 FR 5882);
DOT’s May 20, 2003 and FTA’s April 9, 2003 supplemental guidance
documents; and, EPA’s May 14, 1999 guidance memorandum.  EPA’s
current conformity rule reflects all of these guidance documents (69 FR
40005-40006).

Donut Areas

For the purposes of transportation conformity, a “donut” area is the
geographic area outside a metropolitan planning area boundary, but
inside a designated nonattainment or maintenance area boundary that
includes an MPO (40 CFR 93.101).  The conformity requirements for donut
areas, including the application of the one-year conformity grace
period, are generally the same as those for metropolitan areas.  Within
one year of the effective date of an area’s initial nonattainment
designation for the 2006 PM2.5 NAAQS, the existing and planned
transportation network for the donut portion of the area (as well as for
the metropolitan portion of the area) must demonstrate conformity, or
conformity of the metropolitan transportation plan and TIP will lapse as
described above, and the entire nonattainment area will be unable to
obtain additional project funding and approvals for the duration of the
lapse.

The interagency consultation group for each newly designated
nonattainment area that includes a donut portion should determine how
best to consider the donut area transportation system and new donut area
projects in the MPO’s regional emissions analyses and transportation
plan and TIP conformity determinations.  For more discussion on how
conformity determinations should be made for donut areas, see the
preamble to the July 1, 2004 conformity rule (69 FR 40013).

In nonattainment and maintenance areas with a donut portion, adjacent
MPOs must meet conformity requirements for the 2006 PM2.5 and other
applicable NAAQS, including requirements for any 1997 PM2.5 NAAQS for
which the donut area is designated nonattainment.

The one-year grace period for conformity also applies to project-level
conformity determinations in newly designated nonattainment areas that
include a donut portion, as described above for projects in metropolitan
areas.

Isolated Rural Areas

Isolated rural nonattainment and maintenance areas are areas that do not
contain or are not part of any metropolitan planning area as designated
by 23 U.S.C. 134 and 49 U.S.C. 5303 (40 CFR 93.101).  Isolated rural
areas do not have metropolitan transportation plans or TIPs required
under 23 U.S.C. 134 and 49 U.S.C. 5303 and 5304 for any portion of the
area, and do not have projects that are part of the emissions analysis
of any MPO’s transportation plan or TIP.  Instead, projects in such
areas are included only in statewide transportation improvement programs
and statewide transportation plans, when appropriate.

As in other newly designated nonattainment areas, the one-year
conformity grace period for the 2006 PM2.5 NAAQS will begin on the
effective date of an isolated rural area’s initial nonattainment
designation. However, because these areas do not have federally required
metropolitan transportation plans and TIPs, they are not subject to the
frequency requirements for conformity determinations on transportation
plans and TIPs (40 CFR 93.104(b),(c), and (e)).  Instead, conformity
determinations in isolated rural areas are required only when a
non-exempt FHWA/FTA project(s) needs funding or approval.  Therefore,
although the one-year conformity grace period is available to isolated
rural areas, it is most likely the case that no conformity consequences
would occur upon the expiration of the one-year grace period because
these areas likely would not have any projects that require funding and
approval at that time.

In fact, many isolated rural areas may not have a transportation project
in need of federal funding or approval for some time after the one-year
grace period has ended, and therefore, would not have to demonstrate
conformity before that time.  Once the conformity grace period has
expired, a conformity determination would only be required in such areas
when a non-exempt FHWA/FTA project needs funding or approval.  For more
information on the conformity requirements for isolated rural areas, see
40 CFR 93.109(l); corresponding discussions on how to demonstrate
conformity in isolated rural areas can also be found in the preambles to
the November 24, 1993 transportation conformity final rule (58 FR 62207)
and the August 15, 1997 final rule (62 FR 43785).

Please note that the current regulation’s §93.109(l) would be renamed
as §93.109(n) under today’s proposal, due to the other proposed
revisions and additions in this regulatory section.  As we are simply
renumbering this provision, we are not seeking comment because it is an
administrative change.  The basic conformity requirements for isolated
rural areas remain unchanged.

C.	Proposed Definitions for PM2.5 NAAQS

EPA is proposing two new definitions to §93.101 of the conformity rule
to distinguish between the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS.
These definitions would help implement certain conformity requirements
in areas that have been designated nonattainment for 1997 PM2.5 NAAQS
and/or 2006 PM2.5 NAAQS.  Some areas designated nonattainment for the
2006 PM2.5 NAAQS also are designated nonattainment for the 1997 PM2.5
NAAQS.  In addition, some areas are designated for only the 2006 PM2.5
NAAQS.

	 The proposed addition of these definitions is also similar to the
existing rule’s definitions in 40 CFR 93.101 for the 1-hour ozone
NAAQS and 8-hour ozone NAAQS, and the proposed definitions are generally
consistent with how EPA is defining both kinds of PM2.5 areas for air
quality planning purposes.  EPA also notes that any provision of the
conformity rule that references only “PM2.5” and does not specify
which NAAQS will continue to apply to any area designated nonattainment
for a PM2.5 NAAQS.

D.	How Would This Proposal Interact With Existing Conformity
Requirements for the 1997 PM2.5 NAAQS?

	Sections IV. through VI. of today’s proposal describe proposed
conformity requirements for areas designated nonattainment for the 2006
PM2.5 NAAQS.  EPA is not proposing any changes to the existing
transportation conformity requirements for areas designated
nonattainment for the 1997 PM2.5 NAAQS, since EPA’s nonattainment
designations for the 2006 PM2.5 NAAQS will not affect existing 1997
PM2.5 NAAQS nonattainment designations.

Nonattainment designations for the 1997 and 2006 PM2.5 NAAQS are
different designations with separate SIP requirements, different
attainment dates, etc.  As a result, Clean Air Act section 176(c)(5)
requires conformity requirements to be met in both 1997 and 2006 PM2.5
nonattainment and maintenance areas, as applicable.

Some areas designated nonattainment for the 2006 PM2.5 NAAQS have never
been subject to PM2.5 conformity requirements.  Under today’s proposal
and Clean Air Act section 176(c)(5), these areas would be required to
meet only 2006 PM2.5 conformity requirements, and not conformity
requirements for the 1997 PM2.5 NAAQS, because these areas are not
designated nonattainment for the 1997 PM2.5 NAAQS.

Other areas designated nonattainment for the 2006 PM2.5 NAAQS have been
designated also, in whole or in part, for the 1997 PM2.5 NAAQS.  These
areas would continue to meet their existing conformity requirements for
the 1997 PM2.5 NAAQS as well as any additional requirements for the 2006
PM2.5 NAAQS.

EPA notes that MPOs where both the 1997 and 2006 PM2.5  NAAQS apply
would have to determine conformity for both NAAQS.  MPOs subject to both
the 1997 and 2006 PM2.5 NAAQS will be able to:

Use existing transportation models and data for regional emissions
analyses for both NAAQS, especially where nonattainment area boundaries
are the same;

Rely on analysis years for conformity determinations that are the same
for both NAAQS (e.g., analysis years for the last year of the
transportation plan, an intermediate year, etc.); and

Meet consultation and other conformity requirements through the existing
processes.

	EPA is also proposing that before budgets for the 2006 PM2.5 NAAQS are
available, conformity determinations for some 2006 PM2.5 areas would be
based on the same conformity test  (i.e., the budget test) that is being
used for the 1997 PM2.5 NAAQS.  As described in Section VI., EPA is
proposing that MPOs use any adequate or approved SIP budgets for the
1997 PM2.5 NAAQS for conformity determinations that are made prior to
SIP budgets for the 2006 PM2.5 NAAQS being available.

	Today’s proposal does not impact project-level conformity
requirements for the 1997 PM2.5 NAAQS.  For example, EPA is not
proposing any changes to the PM2.5 hot-spot analysis requirements, and
EPA and FHWA’s existing guidance for such analyses continues to be
available.  For the purposes of PM2.5 conformity, a hot-spot analysis
must address the PM2.5 NAAQS for which the area has been designated
nonattainment.  See Section VII. for further information regarding
EPA’s proposal for project level conformity requirements for the 2006
PM2.5 NAAQS.

EPA will work with PM2.5 nonattainment areas as needed to ensure that
state and local agencies can meet conformity requirements for both the
applicable 1997 and 2006 PM2.5 NAAQS in a timely and efficient manner.
EPA requests comment on whether additional information or training will
be necessary for conformity implementation under the 2006 PM2.5 NAAQS.
If your agency submits comments, please be as specific as possible
regarding what types of situations and issues may need to be addressed
in future implementation of PM2.5 conformity requirements.

IV.	Baseline Year for Certain 2006 PM2.5 Nonattainment Areas

A.	Background

Conformity determinations for transportation plans, TIPs, and projects
not from a conforming transportation plan and TIP must include a
regional emissions analysis that fulfills Clean Air Act provisions.  The
conformity rule provides for several different regional emissions
analysis tests that satisfy Clean Air Act requirements in different
situations. Once a SIP with a motor vehicle emissions budget
(“budget”) is submitted for an air quality NAAQS and EPA finds the
budget adequate for conformity purposes or approves it as part of the
SIP, conformity is demonstrated using the budget test for that pollutant
or precursor, as described in 40 CFR 93.118.

Before an adequate or approved SIP budget is available, conformity of
the transportation plan, TIP, or project not from a conforming
transportation plan and TIP is demonstrated with the interim emissions
test(s), as described in 40 CFR 93.119. The interim emissions tests
include different forms of the “build/no-build” test and “baseline
year” test.  In general, for the baseline year test, emissions from
the planned transportation system or project not from a conforming
transportation plan and TIP are compared to emissions that occurred in
the baseline year (please refer to §93.119 for the more detailed,
specific requirements).  This part of today’s proposal would update
section 93.119 of the current conformity rule for the 2006 PM2.5 NAAQS.
The baseline year for nonattainment areas under the 1997 PM2.5 NAAQS is
2002 (40 CFR 93.119(e)(2)).  Sections V. and VI. of today’s proposal
go into further detail about how any baseline year option would be
applied in 2006 PM2.5 areas.

B.	Proposal

EPA is proposing that a year more recent than 2002 be used as the
baseline year for conformity purposes in 2006 PM2.5 nonattainment areas.
 EPA requests comment on the following proposed options:

Option 1: Define the baseline year as 2008;

Option 2: Rather than naming a specific year, define the baseline year
for conformity purposes as whatever year would be used to meet other air
quality planning requirements, such as SIP planning and inventory
requirements;

Option 3: Define the baseline year as 2005.

	Option 2 would establish the baseline year for conformity purposes for
the 2006 PM2.5 nonattainment areas as well as any areas designated for a
PM2.5 NAAQS that EPA promulgates in the future.  Therefore, if this
option were finalized, the transportation conformity rule would not have
to be amended in the future to establish a new baseline year for
conformity if additional NAAQS changes are made in the future.

	There are different formulations of regulatory text that EPA could use
to define the baseline year under Option 2.  For example, EPA could
define the baseline year for any area designated for a PM2.5 NAAQS
promulgated after 1997 as the most recent year for which EPA’s Air
Emissions Reporting Requirements (AERR) (40 CFR Part 51) requires
submission of on-road mobile source emissions inventories, as of the
effective date of EPA’s nonattainment designations for such NAAQS.
Another possibility would be to simply define the conformity baseline
year as the year that will be used as the baseline for SIP development
for given NAAQS, which EPA could specify in a guidance memorandum issued
in the future.

Option 2 would likely result in the year 2008

as the baseline year in 2006 PM2.5 areas because this is the year
anticipated to be the baseline year for SIP planning and inventory
requirements.  The year 2008 would also be the most recent year of
on-road mobile source emissions inventories available for SIP planning
purposes when SIPs for the 2006 PM2.5 NAAQS are likely to be due.

EPA is proposing rule language for Options 1 and 2 in §93.119(e)(2)(B),
although all three of these options could be considered for the final
rule.  EPA is therefore soliciting comment on all three options.  While
today’s action proposes no changes to the 2002 baseline year for areas
designated nonattainment for the 1997 PM2.5 NAAQS, we propose to
reorganize §93.119(e)(2) to clarify that 2002 applies only to areas
designated nonattainment for the 1997 PM2.5 NAAQS.

The existing interagency consultation process (40 CFR 93.105(c)(1)(i))
would be used to determine the latest assumptions and models for
generating baseline year motor vehicle emissions to complete any
baseline year test.  The baseline year emissions level that is used in
conformity would be required to be based on the latest planning
assumptions available, the latest emissions model, and appropriate
methods for estimating travel and speeds as required by 40 CFR 93.110,
93.111, and 93.122 of the current conformity rule.  The baseline year
test can be completed with a submitted or draft baseline year motor
vehicle emissions SIP inventory, if the SIP reflects the latest
information and models.  If such a SIP baseline is not available, an
MPO, in consultation with state and local air agencies, could also
develop baseline year emissions as part of the conformity analysis.

C.	Rationale

EPA believes that a more recent year than 2002 is appropriate for
meeting Clean Air Act conformity requirements for 2006 PM2.5
nonattainment areas.  EPA also believes that using a more recent year
than 2002 is required to meet these statutory requirements, and is more
environmentally protective and relevant for the 2006 PM2.5 NAAQS.

Coordinating the conformity baseline year with the year used for SIP
planning and an emission inventory year was EPA’s rationale for using
2002 as the baseline year for conformity tests in existing PM2.5
nonattainment areas for the 1997 NAAQS.  As described in the July 1,
2004 final rule (69 FR 40015), EPA selected 2002 as the conformity
baseline year because 2002 was identified as the anticipated emission
inventory base year for the SIP planning process under the 1997 PM2.5
NAAQS.  EPA continues to believe that coordinating conformity’s
baseline with other data collection and inventory requirements would
allow state and local governments to use their resources more
efficiently. However, for the 2006 PM2.5 nonattainment areas, the year
2002 does not have the same relevance and does not provide the same
level of environmental protection as a more recent year.

In choosing the baseline year for the 2006 PM2.5 NAAQS, EPA also
believes it could be important to coordinate the conformity rule’s
baseline year with the year ultimately used as a baseline for SIP
planning for the 2006 PM2.5 NAAQS as well as other emissions inventory
requirements.  EPA has proposed 2008 as a baseline year for conformity
purposes (Option 1) and believes such an option would be appropriate to
meet Clean Air Act conformity requirements.  EPA selected 2002 for the
baseline year tests in 1997 8-hour ozone and PM2.5 nonattainment areas
in the July 1, 2004 final rule (69 FR 40015) not only because EPA
believed that 2002 was the most appropriate measure for meeting Clean
Air Act conformity requirements not to worsen air quality or delay
timely attainment or achievement of any required interim milestone prior
to SIP budgets being established, but also because EPA believed it was
important to have transportation and air quality planning coordinated.
Having consistent baseline years for SIPs, conformity determinations and
other emissions inventory requirements helps to achieve this goal.

Alternatively, EPA has also proposed 2005 as a baseline year for
conformity purposes (Option 3) because this year is also relevant for
2006 PM2.5 areas.  The year 2005 is more recent than 2002, and 2005 data
would also be available for other inventory purposes such as the AERR.
In addition, most 2006 PM2.5 areas will be designated nonattainment
based in part on air quality monitoring data from the year 2005.  EPA is
required to make nonattainment designations for PM2.5 based on the most
recent three years of air quality data, i.e., 2005-2007 data for most
2006 PM2.5 areas.  For this reason, 2005 is being proposed as a baseline
year for conformity purposes.

	Whereas Options 1 and 3 would apply specifically to the 2006 PM2.5
NAAQS, EPA proposes in Option 2 to generalize the language for the
baseline year for areas designated under any PM2.5 NAAQS established
after 1997.  Given that the Clean Air Act requires EPA to review the
NAAQS for possible revision once every five years, adopting Option 2
would standardize the process for selecting an appropriate baseline year
to use in meeting conformity requirements before SIP budgets have been
established for any future PM2.5 NAAQS.  This would enable EPA, MPOs and
other transportation planners to identify the appropriate baseline year
for conformity purposes without EPA having to amend the conformity
regulation first.

In other words, Option 2 would allow EPA to identify an appropriate
baseline year in an expeditious manner for transportation conformity
purposes.  As a result, MPOs and other transportation planners would
understand conformity requirements for future PM2.5 NAAQS revisions more
quickly, which may, in turn, also allow more time to prepare and
complete necessary conformity determinations.

EPA believes that Option 2 would result in an appropriate baseline year
for a given PM2.5 NAAQS.  Since Option 2 is based on the same criteria
that have been used for proposed Option 1 and for establishing baseline
years for other NAAQS (58 FR 62191, 69 FR 40014), EPA believes this
option would also result in an environmentally protective and legal
baseline year for conformity under the 2006 PM2.5 NAAQS and any future
PM2.5 NAAQS revisions.  Finalizing Option 2 would most likely result in
a baseline year of 2008 for the 2006 PM2.5 NAAQS.

	If the regulatory text for this option referred to the AERR
requirement, the option would ensure that areas designated nonattainment
for the 2006 PM2.5 NAAQS, as well as areas designated for revised PM2.5
NAAQS in the future, would use the year for which the most recent
emissions inventories are required to be submitted as of the effective
date of EPA’s final designations.  The regulatory text for Option 2
could also be written to refer to the year that will be used as the
baseline year for SIP development for a given PM2.5 NAAQS.

	In either case, under Option 2 EPA would most likely clarify what year
is to be used for the baseline year test by issuing a memorandum.  If
this option were finalized, EPA would issue such a memorandum prior to
conformity requirements applying.

EPA requests comment on all of these options.  Though commenters can
simply express a preference, providing rationale for a preference is
especially useful to EPA.  In particular, EPA seeks comment on whether
state and local agencies believe that establishing the baseline year
using Option 2 presents any implementation concerns, and if so, how EPA
could address such concerns.

V.	Regional Conformity Tests in 2006 PM2.5 Nonattainment Areas That Do
Not Have Adequate or Approved SIP Budgets for the 1997 PM2.5 NAAQS

This part of the proposal discusses regional conformity tests for
nonattainment areas for the 2006 PM2.5 NAAQS that do not have adequate
or approved PM2.5 SIP budgets for the 1997 NAAQS.  This proposal would
apply to 2006 PM2.5 nonattainment areas that were not covered by the
1997 PM2.5 NAAQS, as well as nonattainment areas for both PM2.5 NAAQS
that do not have an adequate or approved 1997 PM2.5 SIP budget.  EPA
would address conformity tests for these areas under proposed section
93.109(j) of the conformity rule.  See Section VI. of today’s proposal
for conformity tests in 2006 PM2.5 areas that have adequate or approved
SIP budgets for the 1997 PM2.5 NAAQS.

Note that this section of the preamble proposes new requirements for
conformity only under the 2006 PM2.5 NAAQS.  This proposal does not
address the requirements for demonstrating conformity for the 1997 PM2.5
NAAQS.

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

1.	Proposal

Once a SIP for the 2006 PM2.5 NAAQS is submitted with a budget(s) that
EPA has found adequate or approved, EPA proposes that the budget test
must be used in accordance with 40 CFR 93.118 to complete all applicable
regional emissions analyses for the 2006 PM2.5 NAAQS.  Conformity would
be demonstrated if the transportation system emissions reflecting the
proposed transportation plan, TIP, or project not from a conforming
transportation plan and TIP were less than or equal to the motor vehicle
emissions budget level defined by the SIP as being consistent with Clean
Air Act requirements.

The first SIP for the 2006 PM2.5 NAAQS could be a control strategy SIP
required by the Clean Air Act (i.e., reasonable further progress SIP or
attainment demonstration) or a maintenance plan.  States could also
voluntarily choose to submit an “early progress SIP” prior to
required SIP submissions.  Early progress SIPs must demonstrate a
significant level of future emissions reductions from a previous
year’s emissions.  For example, an area could submit an early progress
SIP for the 2006 PM2.5 NAAQS that demonstrates a specific percentage of
emissions reductions (e.g. 5-10%) in an area’s attainment year from
the baseline year emissions (e.g., 2008).  An early progress SIP would
include emissions inventories for all emissions sources for the entire
2006 PM2.5 nonattainment area and would meet applicable requirements for
reasonable further progress SIPs.  EPA has discussed this option in past
conformity rule preambles, e.g. the July 1, 2004 transportation
conformity final rule (69 FR 40028), and many states have established
early progress SIP budgets for conformity purposes.

Whatever the case, the interim emissions test(s) would no longer be used
for direct PM2.5 or a relevant precursor once an adequate or approved
SIP budget for the 2006 PM2.5 NAAQS is established for the pollutant or
precursor.  EPA encourages states to develop their future 2006 PM2.5
SIPs in consultation with MPOs, state and local transportation agencies,
and local air quality agencies to facilitate future conformity
determinations.  Once EPA’s nonattainment designations are finalized,
EPA Regions would be available to assist states in the development of
early progress SIPs for the 2006 PM2.5 NAAQS, if desired.

2.  Rationale

EPA believes that this proposal meets statutory requirements for
conformity determinations that occur after SIP budgets are available for
the 2006 PM2.5 NAAQS.  Section 176(c) of the Clean Air Act states that
transportation activities must “conform to an implementation
plan…” (SIP) and states further that conformity to an implementation
plan means conformity to the SIP’s purpose.  Once EPA finds a budget
for the 2006 PM2.5 NAAQS adequate or approves the SIP that includes it,
the budget test provides the best means to determine whether
transportation plans and TIPs meet the statutory obligations in Clean
Air Act sections 176(c)(1)(A) and (B) for that NAAQS.  That is, the
budget test best shows that transportation plans and TIPs conform to the
SIP’s purpose of eliminating or reducing the severity and number of
violations of the NAAQS and achieving expeditious attainment of the
NAAQS (176(c)(1)(A)); and best confirms the requirement that
transportation plans and TIPs not cause or contribute to any new
violation, worsen an existing violation, or delay timely attainment of
any required interim milestone (176(c)(1)(B)).  The budget test also
best demonstrates that transportation plans and TIPs comply with the
statutory obligation to be consistent with the emissions estimates in
SIPs, according to Clean Air Act section 176(c)(2)(A).  By being
consistent with the on-road mobile source emissions levels in the SIP,
transportation planners can ensure that their activities remain
consistent with state and local air quality goals to protect public
health.

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

1.	Proposal

EPA is proposing that these 2006 PM2.5 nonattainment areas meet one of
the following interim emissions tests for conformity determinations
conducted before adequate or approved 2006 24-hour PM2.5 SIP budgets are
established:

The build-no-greater-than-no-build test (“build/no-build test”), or

The no-greater-than-baseline year emissions test (“baseline year
test”).

Again, this part of the proposal would apply only in cases where a 2006
PM2.5 area does not have adequate or approved SIP budgets for either the
2006 or 1997 PM2.5 NAAQS.  Section VI. of the proposal covers the case
where a 2006 PM2.5 nonattainment area has a SIP budget for the 1997
PM2.5 NAAQS.

This proposal is similar to the transportation conformity rule at 40 CFR
93.119(e) for nonattainment areas for the 1997 PM2.5 NAAQS.  Today’s
proposal would allow 2006 PM2.5 nonattainment areas without SIP budgets
to choose between the two interim emissions tests, rather than require
that one specific test or both tests be completed.  Conformity would be
demonstrated under the proposal if the transportation emissions
reflecting the proposed transportation plan or TIP (build) were less
than or equal to either the emissions from the existing transportation
system (no-build), or the level of motor vehicle emissions in the
baseline year, as described in 40 CFR 93.119.  A full discussion of the
proposed baseline year options for the 2006 PM2.5 NAAQS can be found in
Section IV. of today’s notice.

2.	Rationale

	EPA believes that this proposal meets statutory requirements for
conformity determinations that occur before SIP budgets are available
for the 2006 PM2.5 NAAQS.  EPA believes it is appropriate to provide
flexibility and allow 2006 PM2.5 areas to meet only one interim
emissions test before adequate or approved PM2.5 SIP budgets are
established.  This proposal meets statutory requirements and parallels
the current rule’s requirements for 1997 PM2.5 nonattainment areas (69
FR 40028-40031), which were upheld by an October 2006 court decision.
Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir. 2006).  In
addition, this proposal is consistent with past rulemakings for interim
emissions test requirements for other pollutants, as described below.

Using either the build/no-build test or baseline year test is sufficient
to meet Clean Air Act section 176(c)(1)(B) requirements that
transportation activities do not cause new air quality violations,
worsen existing violations, or delay timely attainment or achievement of
interim reductions or milestones.  The baseline year and the
build/no-build tests are sufficient for demonstrating conformity when an
area does not have a SIP budget for a portion of a nonattainment area.

Based on the Clean Air Act, EPA has previously determined that only
ozone and CO areas of higher classifications are required to also
satisfy section 176(c)(3)(A)(iii) requirements during the time period
before adequate or approved SIP budgets are available (58 FR 3782-3783;
62 FR 43784-43785; 69 FR 40018, 40019-40031).  As a result, the current
rule requires these ozone and CO areas to meet both interim emissions
tests, rather than only one test.

However, the current conformity rule already allows areas designated for
the other pollutants, as well as the lower classifications of ozone and
CO, to conform based on only one interim emissions test, rather than
having to complete two tests and thereby contribute further reductions
towards attainment.  EPA proposes that the 2006 PM2.5 areas also be
required to meet only one of the interim emissions tests to meet the
Clean Air Act’s requirements in section 176(c)(1)(B).  For more
information and the full rationale for allowing some areas to conform
based on only one interim emissions test, see the November 24, 1993
final rule (58 FR 62197) that addressed interim requirements for PM10
and NO2 areas, and the July 1, 2004 final rule (69 FR 40029) that
established interim requirements for 1997 PM2.5 areas.

EPA believes that the no-greater-than-baseline year interim emissions
test is an appropriate test for meeting section 176(c)(1)(B)
requirements in 2006 PM2.5 nonattainment areas.  By definition, the
no-greater-than baseline year test ensures that emissions from on-road
mobile sources are no greater than they were during the baseline year
that will most likely be used for 2006 PM2.5 NAAQS SIP planning
purposes.  If future on-road emissions do not increase above their base
year levels, applicable statutory requirements are met.

Finally, the build/no-build test would also allow a 2006 PM2.5 area to
meet statutory requirements.  As described above, the build/no-build
test requires a regional emissions analysis to demonstrate that the
emissions from the transportation system in future years, if it included
the proposed action and all other expected regionally significant
projects, would be less than the emissions from the current
transportation system in future years.  Since a new transportation plan,
TIP, or project (in the build scenario) could not result in regional
emissions that are higher than those that would occur in the absence of
new transportation activities (in the no-build scenario) for the system,
the Clean Air Act section 176(c)(1)(B) requirements are met.  For these
reasons, EPA believes that the build/no-build test continues to be an
appropriate interim test prior to SIP budgets being available.

C.	General Implementation of Regional Tests

This proposal would apply the existing conformity rule’s general
requirements for PM2.5 regional emissions analyses in 2006 PM2.5 areas
that do not have adequate or approved SIP budgets for the 1997 PM2.5
NAAQS.  EPA is including this discussion of the existing regulation’s
requirements for clarity, to help readers understand how the existing
regulation would apply to areas designated nonattainment for the 2006
PM2.5 NAAQS.  However, EPA is not soliciting comment on these existing
requirements that we are not proposing to change.  The following
examples are intended to illustrate how today’s proposal would be
implemented in practice for 2006 PM2.5 areas without adequate or
approved 1997 PM2.5 SIP budgets.

1.	Decisions Made Through the Interagency Consultation Process

The existing rule’s consultation process would be used to determine
the test for completing any regional emissions analysis for the 2006
PM2.5 NAAQS, as required by 40 CFR 93.105(c)(1)(i).  The existing
interagency consultation process would also be used to determine the
latest assumptions and models for generating motor vehicle emissions
regardless of the test used.  Refer to Section IV. of this preamble for
details about generating baseline year emissions if that interim
emissions test is selected for a given conformity determination.

The consultation process would also be used to determine which analysis
years should be selected for regional emissions analyses.  Before an
adequate or approved 2006 PM2.5 budget is available, areas would be able
to choose, through interagency consultation, either interim emissions
test for each conformity determination.  However, the same test would be
required to be used for each analysis year for a given determination.
EPA believes that sufficient flexibility exists without mixing and
matching interim emissions tests for different analysis years within one
conformity determination, which is unnecessarily complicated and may
indicate that an area would not conform using one test consistently.

2. 	General Conformity Test Requirements for All Areas

Regional emissions analyses under this proposal would be implemented
through existing conformity requirements such as 40 CFR 93.118, 93.119,
and 93.122.  For example, the existing conformity rule requires that
only certain years within the transportation plan (or alternate
timeframe) be examined.  Under 40 CFR 93.118(d), the following years
would be analyzed for the budget test with 2006 PM2.5 SIP budgets:

The attainment year for the 2006 PM2.5 NAAQS (if it is within the
timeframe of the transportation plan and conformity determination);

The last year of the timeframe of the conformity determination (40 CFR
93.106(d)); and

Intermediate years as necessary so that analysis years are no more than
ten years apart.

For the interim emissions tests, the existing conformity rule (40 CFR
93.119(g)) requires the following analysis years:

A year no more than five years beyond the year in which the conformity
determination is being made;

The last year of the timeframe of the conformity determination (as
described in 40 CFR 93.106(d));

Intermediate years as necessary so that analysis years are no more than
10 years apart.

See the relevant regulatory sections of the conformity rule and the July
1, 2004 final rule preamble for further background on how tests have
been implemented for other pollutants and standards (69 FR 40020).

3.	Cases Involving Multi-jurisdictional Areas

In July 2004, EPA issued a guidance document for implementing conformity
requirements in multi-jurisdictional areas.  Multi-jurisdictional areas
are nonattainment and maintenance areas with multiple MPOs, one or more
MPOs and a donut area, or multi-state areas.  EPA believes that this
guidance should also apply to 2006 PM2.5 areas with multiple
jurisdictions.

There are two parts of this existing guidance that are most relevant for
implementing conformity for multi-jurisdictional 2006 PM2.5 areas that
do not have adequate or approved 1997 PM2.5 SIP budgets.  Part 2 of this
guidance describes how conformity would be implemented in all 2006 PM2.5
areas before adequate or approved SIP budgets are available for an
applicable NAAQS.  Part 3 of this guidance is relevant for meeting
conformity requirements once adequate or approved 2006 PM2.5 SIP budgets
are available.

For example, Part 3 of this guidance describes how a state or MPO in a
multi-state nonattainment area can operate independently from other
states/MPOs for conformity purposes once adequate or approved SIP
budgets for a state are established.  This same conformity guidance
would also apply for the 2006 PM2.5 NAAQS in these types of areas.  Part
3 would also apply to the cases where subarea budgets are established
for a nonattainment area within one state with multiple MPOs.  For
further information, please refer to EPA’s 2004 multi-jurisdictional
conformity guidance.

VI.  Regional Conformity Tests in 2006 PM2.5 Areas That Have Adequate or
Approved 1997 PM2.5 SIP Budgets

This section proposes the conformity tests for completing regional
emissions analyses in areas designated for the 2006 PM2.5 NAAQS with
adequate or approved SIP budgets for the 1997 PM2.5 NAAQS that cover
either part or all of the 2006 PM2.5 area.  EPA proposes to address
conformity tests for these areas under a new section 93.109(k).  See
Section V. of today’s proposal for conformity tests in 2006 PM2.5
areas that do not have an adequate or approved 1997 PM2.5 SIP budget.
As stated elsewhere, EPA is not proposing any changes in conformity
requirements for the 1997 PM2.5 NAAQS.

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

1.	Proposal

Once a SIP for the 2006 PM2.5 NAAQS is submitted with budget(s) that EPA
has found adequate or approved, EPA proposes that the budget test must
be used in accordance with 40 CFR 93.118 to complete all applicable
regional emissions analyses for the 2006 PM2.5 NAAQS.  Conformity would
be demonstrated if the transportation system emissions reflecting the
proposed transportation plan, TIP, or project not from a conforming
transportation plan and TIP were less than or equal to the motor vehicle
emissions budget level defined by the SIP as being consistent with Clean
Air Act requirements.

The first submitted SIP for the 2006 PM2.5 NAAQS may be an attainment
demonstration or a maintenance plan.  Nonattainment areas for the 2006
PM2.5 NAAQS could also voluntarily choose to submit an “early progress
SIP” to establish budgets for conformity purposes prior to required
SIPs.  See Section V. for further details on requirements for early
progress SIPs.  EPA has discussed this option in past conformity rule
preamble, e.g. the July 1, 2004 transportation conformity final rule (69
FR 40028), and some states have established early progress SIP budgets
for conformity purposes.

Whatever the case, interim emissions tests and/or any existing 1997
PM2.5 SIP budget would no longer be used for conformity in 2006 PM2.5
areas for direct PM2.5 or a relevant precursor once an adequate or
approved SIP budget for the 2006 PM2.5 NAAQS is established for the
pollutant or precursor.  Once a SIP budget for the 2006 PM2.5 NAAQS is
adequate or approved, the budget test for 2006 PM2.5 conformity would be
done based on 24-hour emissions (i.e., tons per day).  As noted earlier
in Section III.D., areas that were also designated for the 1997 PM2.5
NAAQS would continue to meet their existing conformity requirements for
the 1997 PM2.5 NAAQS, which would include a regional emissions analysis
based on annual emissions (i.e., tons per year).  The conformity rule at
40 CFR 93.105 requires consultation on the development of SIPs; EPA
encourages states to consult with MPOs, state and local transportation
agencies, and local air quality agencies sufficiently early when
developing 2006 PM2.5 SIPs to facilitate future conformity
determinations.  Once EPA’s nonattainment designations are finalized,
EPA Regions would be available to assist states in developing early
progress SIPs for the 2006 PM2.5 NAAQS, if desired.

2.	Rationale

EPA’s rationale for the use of the budget test once adequate or
approved SIP budgets addressing the 2006 PM2.5 NAAQS are available is
found in Section V.A.2. of this preamble, and not repeated here.

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

1.	Proposal

Where all or a portion of the 2006 PM2.5 area is covered by adequate or
approved 1997 PM2.5 budgets, EPA is proposing that the 1997 budgets
would be used for 2006 PM2.5 conformity.  In addition, in the case where
the 1997 budget does not cover the entire 2006 PM2.5 area, EPA is
proposing that one of the interim emissions tests would also be used, as
described below.  Section IV. of this proposal covers the proposed
change to the baseline year test and Section V. covers interim emissions
tests in 2006 PM2.5 areas before adequate or approved SIP budgets for
the 2006 PM2.5 NAAQS are available.

Please note that this proposal is for completing conformity under the
2006 PM2.5 NAAQS before 2006 PM2.5 SIP budgets are established.  For
areas designated nonattainment for the 2006 PM2.5 NAAQS where all, or a
portion, of the area is covered by adequate or approved 1997 PM2.5 SIP
budgets, EPA is proposing that the budget test using 1997 PM2.5 SIP
budgets serve as a proxy for the 2006 PM2.5 NAAQS until 2006 PM2.5 SIP
budgets are available.

Many nonattainment areas for the 1997 PM2.5 NAAQS may have adequate or
approved SIP budgets for the 1997 annual PM2.5 NAAQS.  For areas that
use annual PM2.5 budgets to meet 2006 PM2.5 requirements, a regional
emissions analysis would be done based on an analysis of annual, rather
than 24-hour, emissions (i.e., tons per year).

Today’s proposal is based on EPA’s experience in establishing
conformity requirements for areas designated for the 1997 8-hour ozone
NAAQS that had SIP budgets for the 1-hour ozone NAAQS, found in 40 CFR
93.109(e)(2).  This proposal covers the four possible scenarios that
could result when areas are designated nonattainment for the 2006 PM2.5
NAAQS:

Scenario 1:  the 2006 PM2.5 area nonattainment boundary is the same as
the 1997 PM2.5 area boundary.

Scenario 2:  the 2006 PM2.5 area is smaller than (and completely within)
the 1997 PM2.5 area boundary.

Scenario 3:  the 2006 PM2.5 area is larger than (and contains) the 1997
PM2.5 area boundary.

Scenario 4:  the 2006 PM2.5 area boundary overlaps with a portion of the
1997 PM2.5 area boundary.

These four boundary scenarios are the same as the four boundary
scenarios EPA described for the 1997 8-hour ozone areas that had
existing 1-hour ozone budgets.  EPA’s 2004 guidance entitled,
“Companion Guidance for the July 1, 2004 Final Transportation
Conformity Rule, Conformity Implementation in Multi-Jurisdictional
Nonattainment and Maintenance Areas for Existing and New Air Quality
Standards,” (EPA40-B-04-012), contains diagrams of the four scenarios
for 8-hour ozone areas.  Readers may be interested in reviewing these
diagrams as they consider the following proposals.  This document can be
found on EPA’s transportation conformity website at:    HYPERLINK
"http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf"
http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf .

The following paragraphs describe today’s proposals for each possible
scenario for 2006 PM2.5 nonattainment areas.

	Scenario 1:  2006 PM2.5 areas where the nonattainment boundary is
exactly the same as the 1997 PM2.5 boundary.  In this case, the 2006 and
1997 PM2.5 nonattainment boundaries cover exactly the same geographic
area.  EPA proposes to require such areas to meet the budget test for
the 2006 PM2.5 NAAQS using existing adequate or approved SIP budgets for
the 1997 PM2.5 NAAQS.

	Scenario 2:  2006 PM2.5 areas where the boundary is smaller than and
within the 1997 PM2.5 boundary.  In this case, the 2006 PM2.5
nonattainment area is smaller than and completely encompassed by the
1997 PM2.5 nonattainment boundary.  EPA proposes to require such areas
to meet one of the following versions of the budget test:

The budget test using the subset or portion of existing adequate or
approved 1997 PM2.5 SIP budgets that applies to the 2006 PM2.5
nonattainment area, where such portion(s) can be appropriately
identified; or

The budget test using the existing adequate or approved 1997 PM2.5 SIP
budgets for the entire 1997 PM2.5 nonattainment area.  In this case, any
additional reductions beyond those addressed by control measures in the
1997 PM2.5 SIP would be required to come from the 2006 PM2.5
nonattainment area as described below.

Under today’s proposal, areas could choose either test each time they
make a conformity determination.  For any particular conformity
determination, however, the same choice would have to be used for each
analysis year.  EPA believes that to do otherwise would be unnecessarily
complicated and may indicate that one test option used consistently for
all analysis years would not demonstrate conformity.  The consultation
process would be used to determine whether using a portion of a 1997
PM2.5 SIP budget is appropriate and feasible, and if so, how deriving
such a portion would be accomplished.  See the preamble of the July 1,
2004 final rule (69 FR 40022-40023) for a description of a similar
provision for the 1997 8-hour ozone NAAQS.

EPA is proposing that a conformity determination using the entire 1997
PM2.5 budget would include a comparison between the on-road regional
emissions produced in the entire 1997 PM2.5 area and the existing 1997
PM2.5 SIP budget(s).  However, if additional reductions are required to
meet conformity beyond those produced by control measures in the 1997
PM2.5 SIP budgets, EPA proposes that those reductions must be obtained
from within the 2006 PM2.5 nonattainment area only, since the conformity
determination would be for the 2006 PM2.5 NAAQS.

Scenario 3:  2006 PM2.5 areas where the boundary is larger than the 1997
PM2.5 boundary.  In this case, an entire 1997 PM2.5 nonattainment or
maintenance area would be within a larger 2006 PM2.5 nonattainment area
and the 1997 PM2.5 budgets would not cover the entire 2006 PM2.5
nonattainment area.  EPA proposes to require such areas to meet one of
the following:

The budget test using the 1997 PM2.5 budget(s) for the 1997 PM2.5 area,
that is, the portion of the 2006 PM2.5 area that lies within the 1997
PM2.5 area boundary, and one of the interim emissions tests for either
the remaining portion of the 2006 PM2.5 nonattainment area, the entire
2006 PM2.5 area, or the entire portion of the 2006 PM2.5 area within an
individual state, if 1997 PM2.5 budgets are established in each state in
a multi-state area; or

The budget test using the existing adequate or approved 1997 PM2.5 SIP
budgets for the entire 2006 PM2.5 nonattainment area.

Under this proposal, the budget test would be completed according to the
requirements in 40 CFR 93.118, and the interim emissions test
requirements of 40 CFR 93.119.

Once an area selects a particular interim emissions test and the
geographic area it will address, EPA proposes that the same test must be
used consistently for all analysis years.  The consultation process
would have to be used to determine which analysis years should be
selected for regional emissions analyses where the budget test and
interim emissions tests are used.  It may be possible to choose analysis
years that would satisfy both the budget and interim emissions test
requirements for areas using both tests prior to adequate or approved
2006 PM2.5 SIP budgets being established.  Further information regarding
the implementation of these requirements is illustrated later in this
section.

Scenario 4: 2006 PM2.5 areas where the boundary partially overlaps a
portion of the 1997 PM2.5 boundary.  In this case, the 1997 and 2006
PM2.5 nonattainment boundaries partially overlap.  As in the case with
Scenario 3 areas, the 1997 PM2.5 budgets would not cover the entire 2006
PM2.5 nonattainment area.  However, unlike Scenario 3 areas, the 2006
area does not contain the entire 1997 PM2.5 nonattainment or maintenance
area.  Therefore, 1997 PM2.5 budgets cannot be the sole test of
conformity for the 2006 PM2.5 NAAQS, since a conformity determination
must include a regional emissions analysis that includes the entire 2006
PM2.5 nonattainment area.

	EPA proposes that 2006 PM2.5 areas covered under this scenario would
use the 1997 PM2.5 budget(s) to meet the budget test for the portion of
the 1997 PM2.5 area and budgets that overlap with the 2006 PM2.5 area
boundary, and one of the interim emissions tests for either the
remaining portion of the 2006 PM2.5 nonattainment area, the entire 2006
PM2.5 area, or the entire portion of the 2006 PM2.5 area within an
individual state, if 1997 PM2.5 budgets are established in each state in
a multi-state area.  Under this proposal, the budget test would be
completed according to the requirements in 40 CFR 93.118, and the
interim emissions test requirements of 40 CFR 93.119.

Similar to Scenario 3 areas, once an area selects a particular interim
emissions test and the geographic area it will address, EPA proposes
that the same test must be used consistently for all analysis years.
Further information regarding the implementation of these requirements
is found in the discussion above for Scenario 3, and illustrated later
in this section.

2.	Rationale

General.  EPA believes that using the existing 1997 PM2.5 budgets as a
proxy for the 2006 PM2.5 NAAQS is required by the Clean Air Act.  In
Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir. 2006), the Court
of Appeals for the District of Columbia Circuit held that where a motor
vehicle emissions budget developed for the revoked 1-hour ozone NAAQS
existed in an approved SIP, that budget must be used to demonstrate
conformity to the 8-hour ozone NAAQS until the SIP is revised to include
budgets for the new NAAQS.  EPA reflected the court’s decision for
ozone conformity tests in its January 24, 2008 final rule (73 FR 4434).

While the Environmental Defense case concerned ozone, EPA believes the
court’s holding is relevant for other pollutants for which conformity
must be demonstrated.  Consequently, EPA believes that 2006 PM2.5 areas
that have 1997 PM2.5 budgets must use them for 2006 PM2.5 conformity
before 2006 PM2.5 SIP budgets are established.

The use of the 1997 PM2.5 budgets as a proxy for the 2006 PM2.5 NAAQS
also would ensure that Clean Air Act requirements are met.  Section
176(c) of the Clean Air Act requires that transportation activities may
not cause new violations, increase the frequency or severity of existing
violations, or delay timely attainment.  In these areas, the budgets for
the 1997 annual PM2.5 NAAQS have been the measure of PM2.5 conformity
thus far, and have been consistent with these areas’ PM2.5 air quality
progress to date.  Therefore, using budgets that address the 1997 annual
PM2.5 NAAQS where no other PM2.5 budgets are available ensures that the
requirements of Clean Air Act 176(c) are met.  Once 2006 PM2.5 budgets
are found adequate or approved, the budget test for that NAAQS provides
the best means to determine whether transportation plans, TIPs, or
projects meet Clean Air Act requirements.

EPA also believes the budget test is a better environmental measure than
the interim emissions tests when SIP budgets for a pollutant or
precursor are available.  As EPA reiterated in its July 1, 2004 final
rule (69 FR 40026), when motor vehicle emissions budgets have been
established by SIPs, they provide a more relevant basis for conformity
determinations than the interim emissions tests.  EPA believes this is
true even though in most cases the budgets established for the 1997
PM2.5 NAAQS would address an annual rather than a 24-hour NAAQS.  A 1997
PM2.5 budget represents the state’s best estimate of the level of
permissible PM2.5 emissions from the on-road transportation sector for a
particular area.  Such a budget is created based on local information
for that particular area – its population, its estimated VMT and other
travel data, its transit availability, its particular vehicle fleet, its
local controls, and so forth.  Hence EPA believes using budgets,
designed for specific areas and based on information from those specific
areas, is preferable to using either of the more generic interim
emissions tests.  The baseline year and the build/no-build tests are
sufficient for demonstrating conformity when an area does not have a
budget for a portion of a nonattainment area.  However, these interim
emissions tests usually do not ensure that transportation emissions
promote progress for the NAAQS to the same extent that the use of motor
vehicle emissions budgets do.

In addition, using the 1997 PM2.5 budgets for 2006 PM2.5 conformity
purposes may also streamline the conformity process for areas designated
nonattainment for both the 1997 and 2006 PM2.5 NAAQS.  These areas would
already be using 1997 PM2.5 budgets for conformity of that NAAQS.  In
areas where the 1997 and 2006 PM2.5 nonattainment boundaries are the
same (Scenario 1), today’s proposal would result in having to meet
only one type of test – the budget test -- to demonstrate conformity
for both the 1997 and 2006 NAAQS.

For multi-state 2006 PM2.5 nonattainment areas, today’s proposal would
also preserve states’ ability to do conformity independently from one
another, if a state has already established budgets for its own state
(and/or MPO(s)) for the 1997 PM2.5 NAAQS.  Further explanation and
examples are given below in Section VI.C.

Scenario 1 and 2 areas.  Today’s proposal for conformity in 2006 PM2.5
areas before budgets that address that NAAQS are available is largely
consistent with the process that EPA finalized for 8-hour ozone areas
designated under the 1997 ozone NAAQS where 1-hour ozone budgets exist
(69 FR 40021-40028).  Our proposals for Scenario 1 and 2 areas are
identical to the final rule for these 8-hour ozone areas.  Scenario 2
2006 PM2.5 areas would also have the choice of adjusting the existing
1997 PM2.5 budgets for the new geographical area.  As we indicated in
the November 5, 2003 proposed rule for the 8-hour ozone areas (68 FR
62702), using the relevant portion of existing budgets for purposes of
conducting conformity determinations for a different NAAQS of the same
pollutant is appropriate since the budgets for the 1997 PM2.5 NAAQS
would only be used as a proxy for the 2006 PM2.5 NAAQS.  These 1997
PM2.5 budgets still have to be met in the 1997 PM2.5 areas.

Scenario 3 and 4 areas.  Some Scenario 3 areas and all Scenario 4 areas
would also have to meet one of the interim emissions tests, for either
the portion of the 2006 PM2.5 area not covered by the 1997 PM2.5 SIP
budgets, the entire PM2.5 area, or the entire portion of the 2006 PM2.5
area within an individual state.  As explained in the November 2003
proposed rule for 8-hour ozone areas (68 FR 62702), in these cases
budgets cannot be the sole test of conformity because a conformity
determination must include a regional emissions analysis that covers the
entire nonattainment area.

However, some Scenario 3 areas may be able to demonstrate conformity
without an interim emissions test.  For Scenario 3 PM2.5 areas, EPA is
proposing an option that similar 8-hour ozone areas also have:  the
entire larger, newly designated area could meet budgets established for
the smaller, existing area.  In the July 1, 2004 final rule, EPA
clarified that 8-hour ozone areas have this ability.  In that final
rule, EPA noted that while this option was not explicitly addressed by
the regulatory text, it would be consistent with the requirements and is
available to interested 8-hour ozone areas (69 FR 40027).  Given the
benefit of that history, EPA is proposing to adopt regulatory text for
this option for Scenario 3 2006 PM2.5 areas.

Finally, EPA believes that statutory requirements are met under the
proposal to use either interim emissions test when no adequate or
approved PM2.5 SIP budgets are available.  See further rationale
regarding the flexibility offered by today’s proposal in Section V.

C.	General Implementation of Regional Tests

This proposal would apply the existing conformity rule’s general
requirements for PM2.5 regional emissions analyses to all 2006 PM2.5
areas.  As described in Section V.C., EPA is including this discussion
of the existing regulation’s requirements for clarity, to help readers
understand how the existing regulation would apply to areas designated
nonattainment for the 2006 PM2.5 NAAQS.  However, EPA is not soliciting
comment on existing requirements that we are not proposing to change.

The following examples are intended to illustrate how today’s proposal
would be implemented in practice for 2006 PM2.5 areas with adequate or
approved 1997 PM2.5 SIP budgets.

1. 	General Conformity Test Requirements for Most Areas

Regional emissions analyses under this proposal would be implemented
through existing conformity requirements such as 40 CFR 93.118, 93.119,
and 93.122.  For example, the existing conformity rule requires that
only certain years within the transportation plan (or alternate
timeframe) be examined.

Although four scenarios are described in Section VI.B. for the time
period before 2006 PM2.5 SIP budgets are available, most areas with 1997
PM2.5 SIP budgets will be covered by Scenario 1 (i.e., the 1997 and 2006
PM2.5 NAAQS boundaries are the same).  Under Scenario 1, the
consultation process would be used to determine which analysis years
should be selected for regional emissions analyses for the budget test.
The existing conformity rule at 40 CFR 93.118(d) requires the following
analysis years for this test:

The attainment year for the 2006 PM2.5 NAAQS (if it is within the
timeframe of the transportation plan and conformity determination);

The last year of the timeframe of the conformity determination (40 CFR
93.106(d)); and

Intermediate years as necessary so that analysis years are no more than
ten years apart.

Areas covered by this proposal would also be determining conformity for
the 1997 PM2.5 NAAQS, using adequate or approved budgets established for
that NAAQS.

	See the relevant regulatory sections of the conformity rule and the
July 1, 2004 final rule preamble for further background on how tests
have been implemented for other pollutants and standards (69 FR 40020).

2.	Cases Involving Multi-jurisdictional Areas

As described earlier, EPA issued a guidance document in 2004 for
implementing conformity requirements in multi-jurisdictional areas.
There are two parts of this existing guidance that are relevant for
implementing conformity for these areas.  Part 3 of the existing
guidance describes how conformity would be implemented in all 2006 PM2.5
areas once adequate or approved SIP budgets for the 2006 PM2.5 NAAQS are
established.  Part 4 of this guidance is relevant for meeting conformity
requirements when only 1997 PM2.5 budgets are available.

This guidance is also applicable for conformity purposes in multi-state
and multi-MPO areas.  For example, in multi-state 2006 PM2.5
nonattainment areas where each state has its own 1997 PM2.5 SIP budgets,
the states could do conformity for the 2006 NAAQS (as well as the 1997
PM2.5 NAAQS) independently of each other.  In addition, MPOs in areas
that have subarea budgets for the 1997 PM2.5 NAAQS could use these
subarea budgets for conformity to the 2006 PM2.5 NAAQS.

For further information, please refer to Section V.C. and EPA’s 2004
multi-jurisdictional conformity guidance.

VII.	Other Conformity Requirements for 2006 PM2.5 Areas

The existing regulations already provide the remaining requirements that
will be necessary for conformity under the 2006 PM2.5 NAAQS.  EPA
believes that any existing conformity requirements that are listed for
“PM2.5” areas that are not being revised in today’s proposal would
also apply to 2006 PM2.5 nonattainment or maintenance areas.  These
provisions have already been promulgated, based on past rulemakings and
rationale, and EPA is not proposing any changes to these provisions.
Therefore, EPA is not requesting public comment on these provisions in
today’s proposal.

For example, a hot-spot analysis is required for certain projects in any
PM2.5 nonattainment and maintenance areas before such projects can be
found to conform.  These requirements are found in §§93.116(a) and
§93.123(b) of the current conformity rule, although please note that
EPA, for other reasons, is proposing today to clarify amendments to
section 93.116(a)of the conformity rule.  See Section IX. of this
preamble for details.  Any hot-spot analysis requirements that were
promulgated for “PM2.5” areas in the conformity rule do not need to
be amended because they would already apply to 2006 PM2.5 areas for this
NAAQS.

A hot-spot analysis in an area designated for both the 1997 and 2006
PM2.5 NAAQS would have to demonstrate that the project meets the
conformity rule’s hot-spot requirements for all of the PM2.5 standards
for which the area is designated nonattainment.  For example, if an area
is designated nonattainment for the 1997 annual standard, and the 2006
24-hour standard, the analysis would have to consider both standards.
Similarly, in the case where an area is designated nonattainment for
both the 1997 annual and 24-hour standards, as well as the 2006 24-hour
standard, the analysis would have to consider all of these standards.
(See Section IX. for more information regarding the requirements of
hot-spot analyses.)

Please refer to the March 10, 2006 final rule for additional information
regarding hot-spot analyses (47 FR 12468) and EPA and FHWA’s current
guidance for implementing this requirement (Transportation Conformity
Guidance for Qualitative Hot-spot Analyses in PM2.5 and PM10
Nonattainment and Maintenance Areas, March 2006, EPA420-B-06-902).

Section 93.117 of the conformity rule, which requires project-level
conformity determinations to comply with any PM2.5 control measures in
an approved SIP, would also apply for conformity under the 2006 PM2.5
NAAQS.  Again, EPA promulgated this requirement in general for
nonattainment and maintenance areas under PM2.5 air quality NAAQS.
Therefore, EPA is not reopening this provision for comment in today’s
proposal, since it is unnecessary to do so in order to implement
conformity requirements under the 2006 PM2.5 NAAQS.  See EPA’s July
2004 final rule for further information on this requirement (69 FR
40036-40037).

EPA will work with PM2.5 nonattainment areas as needed to ensure that
state and local agencies can meet existing and new conformity
requirements for the 2006 PM2.5 NAAQS in a timely and efficient manner.
EPA requests comment on whether additional information or training will
be necessary to ensure proper conformity implementation under the
existing rule and today’s proposal for the 2006 PM2.5 NAAQS.  If your
agency submits comments, please be as specific as possible regarding
what types of situations and issues may need to be addressed in future
implementation of PM2.5 conformity requirements.

VIII.Transportation Conformity in PM10 Nonattainment and Maintenance
Areas and the Revocation of the Annual PM10 NAAQS

A.   Background

On October 17, 2006, EPA issued a final rule establishing changes to the
PM2.5 and PM10 NAAQS (71 FR 61144).  The October 2006 final rule
retained the 24-hour PM10 NAAQS of 150 μg/m3, and revoked the annual
PM10 NAAQS of 50 μg/m3.  EPA made a commitment in this October 2006
final rule to provide information regarding how transportation
conformity will be implemented under the revised PM10 NAAQS (71 FR
61215).  To satisfy this commitment, EPA described which conformity
tests would apply in PM10 nonattainment and maintenance areas (“PM10
areas”) in a guidance document. Today’s proposal to update the
conformity rule also responds to this commitment.

Clean Air Act section 176(c)(5) requires conformity only in areas that
are designated nonattainment or maintenance for a given pollutant and
NAAQS.  Therefore, transportation conformity has continued to apply to
all PM10 nonattainment and maintenance areas because transportation
conformity applies based on an area’s status as a nonattainment or
maintenance area, and PM10 designations were not affected by the October
2006 final rule.  As stated in the October 2006 final rule, "both
transportation and general conformity will continue to apply to all PM10
nonattainment and maintenance areas since no designations are
changing” (71 FR 61215).

As of the effective date of the October 2006 rule, conformity
determinations in PM10 areas have been required only for the 24-hour
PM10 NAAQS.  The October 2006 final rule stated, “However, because EPA
is revoking the annual PM10 NAAQS in this final rule, after the
effective date of this rule conformity determinations in PM10 areas will
only be required for the 24-hour PM10 NAAQS; conformity to the annual
PM10 NAAQS will no longer be required" (71 FR 61215).  Please refer to
the October 17, 2006 final rule for additional information (71 FR
61144).

B.	Proposed Definitions for PM10 NAAQS

EPA proposes to add new definitions to 40 CFR 93.101 of the conformity
rule to distinguish between the 24-hour PM10 NAAQS and the annual PM10
NAAQS.  EPA is proposing these two definitions to simplify the changes
necessary for other conformity rule provisions, as described further
below.  The addition of these definitions parallels the existing
definitions in 40 CFR 93.101 for the 1-hour ozone NAAQS and 8-hour ozone
NAAQS.

C.	Proposal for Conformity Tests in PM10 Areas With Budgets

	EPA proposes to update one section of the regulation, consistent with
the October 2006 final rule and the September 25, 2008 guidance
entitled, “Transportation Conformity in PM10 Nonattainment and
Maintenance Areas and the Revocation of the Annual PM10 NAAQS.”  This
proposal would be consistent with how PM10 transportation conformity
requirements have been applied since the revocation of the annual PM10
NAAQS was effective.

Specifically, EPA is proposing to update 40 CFR 93.109(g) so that:

PM10 areas that have adequate or approved SIP budgets for both the
24-hour and annual PM10 NAAQS would be required to use only the budgets
established for the 24-hour PM10 NAAQS.  Conformity to the annual PM10
budgets in such a case would no longer be required.

PM10 areas that have adequate or approved SIP budgets for only the
annual PM10 NAAQS would be required to use them for PM10 conformity
determinations until PM10 SIP budgets for the 24-hour PM10 NAAQS are
found adequate or approved.  For areas that use annual PM10 budgets, a
regional emissions analysis would be done based on an analysis of
annual, rather than 24-hour, emissions.

EPA is not proposing to change any other existing conformity
requirements for PM10 nonattainment and maintenance areas.  For example,
the existing requirement for project-level conformity determinations in
PM10 areas would also continue to apply, including hot-spot analyses in
some cases (see §§93.116(a) and 93.123(b)).  Although project-level
conformity requirements and any required hot-spot analysis would apply
only with respect to the 24-hour PM10 NAAQS, this requires no revisions
to the current conformity rule.

D.	Rationale

Today’s proposed rule changes for PM10 conformity tests result from
the revocation of the annual PM10 NAAQS.  Where annual PM10 budgets are
the only PM10 budgets, EPA believes it is necessary to use such budgets
to demonstrate conformity for the 24-hour PM10 NAAQS to meet Clean Air
Act requirements.  As discussed above in Section VI.B.2., a 2006
decision by the Court of Appeals for the D.C. Circuit clarified this
point.  In this decision, the court stated, “A current SIP, even one
tied to outdated NAAQS, remains in force until replaced by another but
later-approved SIP.  The Clean Air Act provides that the current SIPs
are legally sufficient until they are replaced by new SIPs.”
(Environmental Defense v. EPA, 467 F.3d 1329, 1335 (D.C. Cir. 2006)).
Refer to Section VI.B.2. for further information about the decision.
EPA believes that today’s proposal is consistent with this decision.

Consequently, EPA believes that annual PM10 budgets must be used to
demonstrate conformity for the 24-hour PM10 NAAQS when adequate or
approved 24-hour PM10 budgets are not yet established.  In areas with
PM10 budgets that address only the annual PM10 NAAQS, these budgets have
been the measure of PM10 conformity thus far, and have been consistent
with these areas’ PM10 air quality progress to date.  Therefore, using
annual PM10 budgets where no other PM10 SIP budgets are available
ensures that air quality progress to date is maintained, air quality
will not be worsened and attainment and any interim milestones for the
24-hour PM10 NAAQS will not be delayed because of emissions increases.
Once 24-hour PM10 budgets are found adequate or approved, the budget
test solely for the 24-hour PM10 NAAQS provides the best means to
determine whether transportation plans, TIPs, or projects meet Clean Air
Act conformity requirements.

Most PM10 areas already have adequate or approved budgets for only the
24-hour PM10 NAAQS.  However, there are a limited number of PM10 areas
that have SIP budgets only for the annual PM10 NAAQS.  EPA believes that
the statute as interpreted by the court requires such areas to continue
to use these adequate or approved annual PM10 SIP budgets, rather than
use one of the interim emissions tests in 40 CFR 93.119(d) which could
be less environmentally protective tests than SIP budgets.

While EPA addressed how the revocation affected PM10 transportation
conformity requirements in its September 2008 guidance, updating the
regulation clarifies the requirements and simplifies implementation.
This proposed rule also saves resources in some areas with adequate or
approved SIP budgets for both the 24-hour and annual PM10 NAAQS because
these areas are no longer required to use budgets for the annual PM10
NAAQS. As mentioned above, today’s minor revision to the conformity
rule is consistent with what is already required in the field for PM10
nonattainment and maintenance areas.

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

A.	Background

EPA promulgated a final rule on March 10, 2006 (71 FR 12468) that
revised the previous PM10 conformity hot-spot analysis requirements and
applied these revised requirements to PM2.5.  A hot-spot analysis is
defined in 40 CFR 93.101 as an estimation of likely future localized
pollutant concentrations and a comparison of those concentrations to
relevant NAAQS.  A hot-spot analysis assesses the air quality impacts of
an individual transportation project on a scale smaller than a regional
emissions analysis for an entire nonattainment or maintenance area.

Section 93.116(a) of the current conformity rule requires that projects
in PM2.5, PM10, and CO nonattainment and maintenance areas “must not
cause or contribute to any new localized CO, PM10, and/or PM2.5
violations or increase the frequency or severity of any existing CO,
PM10, and/or PM2.5 violations….”  This requirement is satisfied for
applicable projects “if it is demonstrated that during the time frame
of the transportation plan no new local violations will be created and
the severity or number of existing violations will not be increased as a
result of the project.”  Sections 93.105(c)(1)(i) and 93.123 contain
the consultation and methodology requirements for conducting hot-spot
analyses.

A hot-spot analysis, when required, is only one part of a project-level
conformity determination.  In order to meet all Clean Air Act
requirements, an individual project must also be included in a
conforming transportation plan and TIP (and regional emissions analysis
for the entire nonattainment or maintenance area) and meet any other
applicable requirements.

Environmental petitioners challenged the March 2006 final rule, and
raised several issues related to it.  First, petitioners alleged that
the final rule did not ensure that transportation projects complied with
Clean Air Act section 176(c)(1)(A) and (c)(1)(B)(iii).  Second,
petitioners alleged that EPA had previously approved its MOBILE6.2
on-road mobile source emissions model for use in quantitative PM2.5 and
PM10 hot-spot analyses, and withdrew such approval in the March 2006
final rule without providing adequate notice and opportunity for public
comment.

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

However, the court remanded to EPA for further explanation of the
Agency’s interpretation of Clean Air Act section 176(c)(1)(B)(iii).
The court instructed EPA on remand to interpret how this provision of
the Act is met within the local area affected by an individual project,
or explain why this statutory provision does not apply within such an
area.  Environmental Defense v. EPA, 509 F.3d. 553 (D.C. Cir. 2007).
Today’s proposal is intended to respond to this part of the court’s
decision.

B.	Proposal

EPA is proposing to make two minor changes to section 93.116(a) of the
conformity rule to address the court’s remand.  First, EPA is
explicitly stating in this provision that federally funded or approved
highway and transit projects in PM2.5 and PM10 nonattainment and
maintenance areas must meet the requirements of Clean Air Act section
176(c)(1)(B)(iii) within the local area affected by the project.  EPA is
also proposing to make explicit in §93.116 the existing requirement
that projects must be included in a regional emissions analysis under 40
CFR 93.118 or 93.119.  Consistent with the Court’s decision, EPA is
not proposing additional requirements, such as requiring that an
individual project reduce emissions in the local project area.

EPA is not proposing any substantive changes to existing requirements
for project-level conformity determinations.  Under today’s proposal,
project-level conformity determinations, including any hot-spot
analyses, would continue to be performed in the same manner as current
practice.  Projects would continue to be required to be a part of a
regional emissions analysis that supports a conforming transportation
plan and TIP.  Hot-spot analyses would need to demonstrate that during
the time frame of the transportation plan no new local violations would
be created and the severity or number of existing violations would not
be increased as a result of a new project.  By making these
demonstrations, it can be assured that the project would not delay
timely attainment or any required interim reductions or milestones, as
described further below.  In addition, project sponsors would continue
to document the hot-spot analysis as part of the project-level
conformity determination, and the public would continue to be able to
comment on any aspects of the conformity determination through existing
public involvement requirements.

EPA notes that today’s proposal would also address new projects in CO
nonattainment and maintenance areas, since the hot-spot analysis
requirements in section 93.116(a) also apply to such areas.  Although
the March 2006 final rule and the December 2007 court case did not
involve CO hot-spot requirements, EPA believes it is appropriate to
clarify that Clean Air Act section 176(c)(1)(B)(iii) must also be met
for projects in CO nonattainment and maintenance areas.

Solely for purposes of ensuring that state and local implementers and
the public understand today’s proposed change within the context of
existing conformity requirements, EPA is also including section
93.116(a) regulatory text in its entirety in today’s proposal.
However, EPA is not proposing to amend the existing regulatory text in
40 CFR 93.116(a) that is not addressed by the issues discussed in
today’s proposal.  As described above, EPA is proposing only to add
regulatory text to section 93.116(a) to clarify that federally funded or
approved highway and transit projects in PM2.5, PM10, and CO
nonattainment and maintenance areas must meet the requirements of Clean
Air Act section 176(c)(1)(B)(iii) within the local area affected by the
project.  EPA is not reopening for public comment any other aspects of
the current section 93.116(a), or any other provisions in the conformity
rule regarding project-level conformity determinations (e.g., what
projects require hot-spot analyses or methodology requirements, as
described in 40 CFR 93.123).

C.  	Rationale

1.	General

Project-level conformity determinations must demonstrate that all of the
requirements in Clean Air Act section 176(c)(1)(B) are met. Section
176(c)(1)(B) defines conformity to a SIP to mean “that such activities
will not (i) cause or contribute to any new violation of any NAAQS in
any area; (ii) increase the frequency or severity of any existing
violation of any NAAQS in any area; or (iii) delay timely attainment of
any NAAQS or any required interim emission reductions or other
milestones in any area.”

In Environmental Defense, the court held that EPA did not explain how it
interpreted the language of Clean Air Act section 176(c)(1)(B)(iii) in
conjunction with related language in sections 176(c)(1)(B)(i) and (ii).
Although section 93.116(a) of the existing conformity rule includes the
statutory text for section 176(c)(1)(B)(i) and (ii), it does not
explicitly include the statutory language in section 176(c)(1)(B)(iii).
The court stated that, if “any area” in the first two provisions
refers to a “local area,” then EPA must either interpret the term
“any area” in section 176(c)(1)(B)(iii) to also mean “local
area,” or explain why a different interpretation is reasonable.  509
F.3d at 560-61.  EPA agrees with the court that it is reasonable to
conclude that all of section 176(c)(1)(B) requirements must be met in
the local project area.

EPA believes that its existing conformity hot-spot regulations, as well
as other conformity requirements, already require that individual
projects comply with section 176(c)(1)(B)(iii) in the local project
area.  EPA has always intended the term “any area” in all three
statutory provisions of section 176(c)(1)(B) to include the local area
affected by the emissions produced by a new project.  For example, as
EPA stated in the March 2006 final hot-spot rule (71 FR 12483), “a
regional emissions analysis for an area’s entire planned
transportation system is not sufficient to ensure that individual
projects meet the requirements of section 176(c)(1)(B) where projects
could have a localized air quality impact.”

To implement section 176(c)(1)(B) requirements in PM2.5, PM10, and CO
nonattainment and maintenance areas (40 CFR 93.109(b)), EPA’s current
conformity rule requires project-level conformity determinations to
address the regional and local emissions impacts from new projects.
Section 93.115(a) requires that an individual project must be consistent
with the emissions projections and control measures in the SIP, either
by inclusion in a conforming transportation plan and TIP or through a
separate demonstration (and regional emissions analysis developed under
40 CFR 93.118 or 93.119).  In addition, section 93.116(a) requires that
some project-level conformity determinations include a hot-spot analysis
that demonstrates emissions from a single project do not negatively
impact air quality within the area substantially affected by the
project.  Through meeting all of these requirements, it can be assured
that a project does not cause or contribute to a new or worsened air
quality violation, delay timely attainment, or delay required interim
emission reductions or other milestones.

However, in light of the court’s request for further explanation, EPA
is clarifying in this proposal that it interprets the term “any
area” in Clean Air Act section 176(c)(1)(B) to mean any portion of a
nonattainment or maintenance area, including the local area affected by
a transportation project.  The proposed clarifications and the existing
conformity requirements ensure that transportation planners address the
requirement that there be no delay in timely attainment or required
interim reductions or other milestones in the local project area.

EPA notes that Clean Air Act section 176(c)(1)(B)(iii) does not require
an individual project to reduce emissions in the local project area for
it to be consistent with the requirement not to delay timely attainment
or required interim reductions or milestones, as EPA explained in the
preamble to its March 2006 hot-spot regulations (71 FR 12482), with
which the Court agreed.  See also Environmental Defense v. EPA, 467 F.3d
1329, 1337 (D.C. Cir. 2006) (“EPA argues, and we agree, that
conformity to a SIP can be demonstrated by using the build/no-build
test, even if individual transportation plans do not actively reduce
emissions”).  Clean Air Act section 176(c)(1)(B)(iii) does not require
a new project to mitigate new or worsened air quality violations that it
does not cause.  This statutory provision also does not require a new
project to contribute new interim reductions beyond those that are
already required in the SIP.

The only case where Congress specifically required individual projects
to provide emission reductions in hot-spot analyses is for projects in
certain CO nonattainment areas.  Clean Air Act section 176(c)(3)(B)(ii)
requires individual projects in CO nonattainment areas to “eliminate
or reduce the severity and number of violations of the carbon monoxide
NAAQS in areas substantially affected by the project.”  Since Congress
did not establish such a requirement for any project in PM2.5 and PM10
areas under section 176(c)(3)(B)(ii), and for the reasons described in
today’s proposal, EPA does not interpret such a requirement to apply
to projects in PM2.5 or PM10 areas under section 176(c)(1)(B)(iii).

2.  Requirement for No Delay in Timely Attainment of the NAAQS

Today’s proposal would clarify that a project would meet Clean Air Act
section 176(c)(1)(B)(iii) requirements not to delay timely attainment as
long as no new or worsened violations are predicted to occur, which is
already required under the existing hot-spot requirements.  While
overall emissions can increase in a local area above those expected
without a new project’s implementation, a project will not delay
timely attainment if air quality concentrations meet federal air quality
NAAQS or air quality is improved from what would have occurred without
the new project’s implementation.

For example, suppose a hot-spot analysis is performed for a new highway
project that is predicted to significantly increase the number of diesel
trucks from what is expected in the local area without the project.  A
year is chosen in this example to analyze when peak emissions from the
project are expected and future air quality is most likely to be
impacted due to the cumulative impacts of the project and background
emissions in the project area.  Under both the current conformity rule
and the proposed clarification, the project would meet section
176(c)(1)(B)(iii) requirements not to delay timely attainment in the
local project area as long as the project’s new emissions do not
create new violations or worsen existing violations in the local project
area.  Such a demonstration would examine the total impact of the
project’s new emissions in the context of the future transportation
system, any expected growth in other emissions sources, and any existing
or new control measures that are expected to impact the local project
area.  If the hot-spot analysis demonstrated that the proposed project
would improve or not impact air quality, then timely attainment would
also not be delayed from what would have occurred without the project.
In contrast, if such a project increased emissions enough to cause a new
violation or worsen an existing violation in the local project area,
then the project would delay timely attainment, since worsening air
quality above the NAAQS would impede the ability to attain in the local
project area.  In such a case, the project could not be found to conform
until the new or worsened future violation was mitigated.

3.  Requirement for No Delay in Timely Attainment of Any Required
Interim Reductions or Milestones

Today’s proposal also ensures that a project would meet Clean Air Act
section 176(c)(1)(B)(iii) requirements for no delay in the timely
attainment of any required interim reductions or other milestones.  EPA
interprets “any required interim emission reductions or other
milestones” to refer to Clean Air Act requirements associated with
reductions and milestones addressed by reasonable further progress SIPs,
rather than other reductions required for other purposes.  However, EPA
believes there is added value in referencing in section 93.116(a) the
existing conformity requirement that a project be consistent with the
budgets and control measures in any applicable SIP.  Therefore, EPA is
proposing to clarify that this requirement is satisfied in the local
project area if a project is consistent with the motor vehicle emissions
budget(s) and control measures in the applicable SIP or interim emission
test(s) (in the absence of a SIP budget).  Although such a demonstration
is already required under the current rule, EPA’s proposed reference
to the requirements in 40 CFR 93.118 and 93.119 would clarify that a
project’s emissions – when combined with all other emissions from
all other existing and other proposed transportation projects -- are
consistent with any applicable required interim reductions and
milestones.

Today’s proposal also supports the implementation of control measures
that are relied upon in reasonable further progress demonstrations and
could impact air quality in the local project area.  Under the existing
conformity rule, control measures that are relied upon for reasonable
further progress SIPs must have sufficient state and local commitments
to be included in a regional emissions analysis or a hot-spot analysis.
If the implementation of a control measure is not assured, then such
reductions cannot be included in the regional emissions analysis for the
entire nonattainment or maintenance area (40 CFR 93.122(a)) or within
the local project area considered in a hot-spot analysis (40 CFR
93.123(c)(3) and (4)).  EPA believes that these existing requirements
also ensure that “any required interim emissions reductions or other
milestones” are not delayed within a local project area as a result of
a single project’s emissions.

For example, a project may not meet Clean Air Act section
176(c)(1)(B)(iii) requirements if SIP control measures were not being
implemented as expected and as a result, a project’s emissions (when
combined with expected future emissions without the SIP control
measures) caused a new violation or worsened an existing violation in
the local project area.  In such a case, additional control measures as
part of the conformity determination may be required in order to offset
any emissions increases from a project.

Today’s proposal would also result in all Clean Air Act section
176(c)(1)(B)(iii) requirements being met when air quality improves as a
result of the project, e.g., an existing air quality violation that
would have occurred without the project is estimated to be reduced or
eliminated if the new project were implemented.  EPA believes that all
of section 176(c)(1)(B) requirements would be met in the local project
area in such a case since the Act requires that individual projects do
not worsen air quality or affect an area’s ability to attain or
achieve interim requirements.  Certainly, if air quality improves in the
local project area with the implementation of a new project, EPA
believes that timely attainment and required reasonable further progress
interim requirements are not delayed.  In fact, the opposite would be
true in such a case, since future air quality would be improved and
attainment possibly expedited from what would have occurred without the
project’s implementation.

4.  Summary

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

X.	Statutory and Executive Order Reviews

A.	Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866, (58 FR 51735; October 4, 1993), this action
is a "significant regulatory action” because it raises novel legal and
policy issues.    SEQ CHAPTER \h \r 1 Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and any changes made in response to OMB recommendations have been
documented in the docket for this action.

B.	Paperwork Reduction Act

This action does not impose any new information collection burden.  The
information collection requirements of EPA’s existing transportation
conformity regulations and the proposed revisions in today’s action
are already covered by EPA information collection request (ICR)
entitled, “  SEQ CHAPTER \h \r 1 Transportation Conformity
Determinations for Federally Funded and Approved Transportation Plans,
Programs and Projects.”  The Office of Management and Budget (OMB) has
previously approved the information collection requirements contained in
the existing regulations at 40 CFR Part 93 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0561.  The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR Part 9.

C.	Regulatory Flexibility Act

	The Regulatory Flexibility Act (RFA) generally requires an Agency to
prepare a regulatory flexibility analysis of rules subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the Agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small not-for-profit
organizations and small government jurisdictions.

	For purposes of assessing the impacts of today’s proposed rule on
small entities, small entity is defined as: (1) a small business as
defined by the Small Business Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.

After considering the economic impacts of today’s proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.  This
regulation directly affects federal agencies and metropolitan planning
organizations that, by definition, are designated under federal
transportation laws only for metropolitan areas with a population of at
least 50,000.  These organizations do not constitute small entities
within the meaning of the Regulatory Flexibility Act.  We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.

D.	Unfunded Mandates Reform Act

	This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The purpose of this proposal is to amend the conformity rule to clarify
how certain highway and transit projects meet statutory conformity
requirements for particulate matter (PM) in response to a December 2007
court ruling, and to update the regulation to accommodate revisions to
the PM10 and PM2.5 NAAQS. This proposal merely implements already
established law that imposes conformity requirements and does not itself
impose requirements that may result in expenditures of $100 million or
more in any year.  Thus, today’s proposal is not subject to the
requirements of sections 202 and 205 of the UMRA.

	This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule   SEQ
CHAPTER \h \r 1 will not significantly or uniquely impact small
governments because it directly affects federal agencies and
metropolitan planning organizations that, by definition, are designated
under federal transportation laws only for metropolitan areas with a
population of at least 50,000.

E.	Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
“meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.”
 “Policies that have federalism implications” is defined in the
Executive Order to include regulations that have “substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.”

This proposed rule does not have federalism implications.  It will not
have substantial direct effects on states, on the relationship between
the national government and states, or on the distribution of power and
responsibilities among the various levels of government, as specified in
Executive Order 13132.  The Clean Air Act requires conformity to apply
in certain nonattainment and maintenance areas as a matter of law, and
this proposed action merely proposes to establish and revise procedures
for transportation planning entities in subject areas to follow in
meeting their existing statutory obligations.  Thus, Executive Order
13132 does not apply to this rule.

	In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communication between EPA and state and local governments,
EPA specifically solicits comment on this proposed rule from state and
local officials.

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

	This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The Clean Air Act
requires transportation conformity to apply in any area that is
designated nonattainment or maintenance by EPA.  This proposal would
amend the conformity rule to clarify how certain highway and transit
projects meet statutory conformity requirements for particulate matter
in response to a December 2007 court ruling, and to update the
conformity rule to accommodate revisions to the PM10 and PM2.5 NAAQS.
Because today’s proposed amendments to the conformity rule do not
significantly or uniquely affect the communities of Indian tribal
governments, Executive Order 13175 does not apply to this action.

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

Executive Order 13045: “Protection of Children from Environmental
Health Risks and Safety Risks” (62 FR 19885, April 23, 1997,) applies
to any rule that: (1) is determined to be “economically significant”
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children.  If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.

	This proposed rule is not subject to Executive Order 13045 because the
Agency does not have reason to believe the environmental health or
safety risks addressed by this action present a disproportionate risk to
children.

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

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

I.	National Technology Transfer and Advancement Act

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

This proposal does not involve technical standards.  Therefore, EPA is
not considering the use of any voluntary consensus standards.

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

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice.  Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.

	EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or
low-income population.   This proposal would simply amend the conformity
rule to clarify how certain highway and transit projects meet statutory
requirements for particulate matter in response to a December 2007 court
ruling, and updates the conformity rule to accommodate revisions to the
PM10 and PM2.5 NAAQS.

K.	Determination Under Section 307(d)

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

List of Subjects in 40 CFR Part 93

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

DATE: _________________________________

_____________________________________________

Lisa P. Jackson,

Administrator.

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

PART 93 – [AMENDED]

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

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

2.  Section 93.101 is amended by adding new definitions for “24-hour
PM10 NAAQS”, “1997 PM2.5 NAAQS”, “2006 PM2.5 NAAQS”, and
“Annual PM10 NAAQS” to read as follows:

§93.101  Definitions.

* * * * *

24-hour PM10 NAAQS means the 24-hour PM10 national ambient air quality
standard codified at 40 CFR 50.6.

* * * * *

 	1997 PM2.5 NAAQS means the PM2.5 national ambient air quality
standards codified at 40 CFR 50.7.

* * * * *

	2006 PM2.5 NAAQS means the 24-hour PM2.5 national ambient air quality
standard codified at 40 CFR 50.13.

* * * * *

	Annual PM10 NAAQS means the annual PM10 national ambient air quality
standard that EPA revoked on December 18, 2006.

* * * * *

§93.105 [Amended]

3.  Section 93.105 is amended in paragraph (c)(1)(vi) by

removing the citation “§93.109(l)(2)(iii)” and adding in its place
“§93.109(n)(2)(iii)”.

4.  Section 93.109 is amended as follows:

a.  In paragraph (b):

i.   By removing the citation “(c) through (i)”

and adding in its place the citation “(c) through (k)”;

ii.  By removing the reference “(j)” and adding

in its place “(l)”;

By removing the reference “(k)” and adding in its place “(m)”;

iv. 	By removing the reference “(l)” and adding in its place
“(n)”;

b.  By revising paragraph (g)(2) introductory text;

	c.  By redesignating paragraph (g)(3) as (g)(4);

	d.  By adding new paragraph (g)(3);

	e.  By revising the heading of paragraph (i);

  	f.  By adding the words “such 1997” before the words “PM2.5
nonattainment and maintenance areas” in paragraphs(i)(1), (i)(2)
introductory text, and (i)(3);

g.  By redesignating paragraphs (j), (k), and (l) as (l), (m), and (n),
respectively;

h.  In newly designated paragraph (n)(2) introductory

text by removing the citation “(c) through (k)” and adding in its
place the citation “(c) through (m)”;

i.	In newly designated paragraph (n)(2)(iii):

i.	By removing the citation “(l)(2)(ii)” and adding in its place the
citation “(n)(2)(ii)”;

ii.	By removing the citation “(l)(2)(ii)(C)” and adding in its place
the citation “(n)(2)(ii)(C)”;

	j.  By adding new paragraphs (j) and (k).

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

* * * * *

	(g) * * *

	(2) In PM10 nonattainment and maintenance areas where a budget is
submitted for the 24-hour PM10 NAAQS, the budget test must be satisfied
as required by §93.118 for conformity determinations made on or after:

* * * * *

 	(3)  Prior to paragraph (g)(2) of this section applying, the budget
test must be satisfied as required by §93.118 using the approved or
adequate motor vehicle emissions budget established for the revoked