Program'' in title 23 U.S.C. 148, which includes the types of projects
that were previously covered in the ``Safety Improvement Program.''
Therefore, EPA is proposing to change this term within Table 2 as well.
SAFETEA-LU defines ``Highway Safety Improvement Project'' as ``a
project described in the State strategic highway safety plan that--(i)
Corrects or improves a hazardous road location or feature; or (ii)
addresses a highway safety problem.'' Given that the Highway Safety
Improvement Program is substantively the same as the prior Safety
Improvement Program, EPA proposes that projects defined in 23

U.S.C. 148 under the Highway Safety Improvement Program would be exempt
from transportation conformity.
    Finally, ``pavement marking demonstration'' is no longer a
demonstration program and the reference is out of date. However, those
types of projects will continue to be exempt under the updated phrase,
``Pavement marking.'' Therefore, EPA proposes changing this term in
Table 2 to be consistent with SAFETEA-LU's term.

D. Definitions

    EPA is proposing revisions to the definitions of ``metropolitan
planning organization (MPO)'' and ``transportation improvement program
(TIP)'' to reflect the definitions in SAFETEA-LU sections 3005(a) and
6001(a). Pursuant to SAFETEA-LU, the term ``MPO'' now refers to the
policy board for the organization that is designated under 23 U.S.C.
134(d) and 49 U.S.C. 5303(d). EPA is proposing to revise the
definitions of these terms in Sec.  93.101 to be consistent with the
new statutory definitions. These proposed changes would have no
practical impact in conformity implementation.

E. Minor Clarifications for Hot-Spot Analyses

    EPA is proposing two minor clarifications to the conformity rule's
hot-spot analysis provisions. Both of these proposed changes are
intended to improve conformity rule implementation in light of new
statutory requirements. The proposed changes would not substantively
change current requirements.
    First, EPA is proposing to make minor changes to Sec. Sec.
93.109(l)(2)(i) and 93.116(a) to ensure that CO, PM10, and
PM2.5 hot-spot analyses will continue to consider a
project's air quality impact over the entire timeframe of the
transportation plan or long-range statewide transportation plan, as
appropriate. EPA's minor change to Sec.  93.116(a) will ensure that
hot-spot analyses cover the timeframe of the transportation plan in
metropolitan and donut nonattainment and maintenance areas. And the
proposed addition in Sec.  93.109(l)(2)(i) will ensure that hot-spot
analyses in isolated rural areas will also examine a project's air
quality impact over the timeframe of the long-range statewide
transportation plan.
    As discussed in Section VI., EPA is proposing several options for
shortening the timeframe addressed by transportation plan and TIP
conformity determinations, and in some cases, regional emissions
analyses. These changes are proposed in accordance with new Clean Air
Act provisions from SAFETEA-LU. The proposed changes to Sec. Sec.
93.116(a) and 93.109(l)(2)(i) will ensure that project-level hot-spot
analyses examine the appropriate time period, even if the timeframe of
the long-range transportation plan or TIP conformity determination or
regional emissions analysis is shortened. The SAFETEA-LU amendments
allowing an election to shorten the timeframe covered by conformity
determinations apply only to transportation plan and TIP conformity
determinations, not project-level conformity determinations.
    Second, EPA is proposing a technical clarification to Sec.
93.123(b)(1)(i) to address some confusion in the field since our March
10, 2006, final rule (71 FR 12468). Section 93.123(b)(1)(i) of the
current rule requires PM2.5 or PM10 hot-spot
analyses to be completed for ``New or expanded highway projects that
have a significant number of or significant increase in diesel
vehicles;* * *'' EPA is proposing to clarify this provision as ``New
highway projects that have a significant number of diesel vehicles, and
expanded projects that have a significant increase in the number of
diesel vehicles.''
    Since the March 2006 final rule was promulgated, EPA has received
several questions regarding what types of new and expanded highway
projects are covered by Sec.  93.123(b)(1)(i). For example, some state
and local transportation agencies have asked how the current rule's
reference to a ``significant increase in diesel vehicles'' applies to
new highway projects. Although DOT and EPA have answered these and
other questions,\13\ clarifying this provision of the conformity rule
will assist planners as they implement the rule in the future. Again,
today's proposal does not change the type of new or expanded highway
projects that would require PM2.5 or PM10 hot-
spot analyses for transportation conformity purposes; we are simply
clarifying the current provision through a grammatical change.
---------------------------------------------------------------------------

    \13\ Questions and answers for PM2.5 and
PM10 hot-spot analysis requirements can be found at
FHWA's Web site: http://www.fhwa.dot.gov/environment/conformity/pm25faqs.htm
.

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

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

    EPA is also proposing a minor revision to how Sec. Sec.
93.104(b)(2) and 93.105(c)(1)(v) describe transportation plan changes
that require conformity determinations, but are not comprehensive
transportation plan updates. EPA is proposing to change references for
transportation plan ``revision(s)'' to be transportation plan
``amendment(s),'' in order to be consistent with the proposed planning
definitions in DOT's February 14, 2007, final transportation planning
regulations (72 FR 7224). Today's proposed changes would also provide
consistency between how mid-cycle transportation plan and TIP changes
are currently described in the conformity rule. Section 93.104(c)(2)
currently requires conformity determinations for a TIP ``amendment,''
rather than a ``revision.'' The proposal would not change the
substantive requirements for when a conformity determination is
required for transportation plan changes. In addition, the minor
wording change to Sec.  93.105(c)(1)(v) would not require a conformity
SIP revision.

G. Minor Revision to Reference for Public Consultation Provision

    EPA is proposing to update one of the references in Sec.  93.105(e)
of the conformity rule to be consistent with DOT's transportation
planning regulations. Section 93.105(e) describes the procedures for
consulting with the general public on conformity determinations. This
provision currently refers to 23 CFR 450.316(b) of DOT's transportation
planning regulations, which describes how public involvement occurs
during the development of transportation plans and TIPs.
    EPA is proposing to change the reference in Sec.  93.105(e) to be
23 CFR 450.316(a), so that the conformity rule is consistent with DOT's
planning regulations. In its February 14, 2007, final rule (72 FR
7224), DOT reorganized 23 CFR 450.316 to reflect the new SAFETEA-LU
statute. DOT moved the public consultation procedures that EPA has
historically relied upon in the conformity rule from 23 CFR 450.316(b)
to 23 CFR 450.316(a). Today's proposal would simply update the
conformity rule to reflect this change in the planning regulations.
    Today's proposal would not change the substantive requirements for
the public consultation requirements for conformity determinations. In
addition, the proposal would not require a state to revise its
conformity SIP, since the proposal involves an administrative change to
one reference in DOT's regulations. EPA has not required conformity SIP
revisions for similar reference changes in the past; the public
participation requirements in existing approved conformity SIPs can be
implemented as intended even if they do not reflect the most current
citation in DOT's regulations.

XII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    Transportation conformity determinations are required under Clean
Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally
supported highway and transit project activities are consistent with
(``conform to'') the purpose of the SIP. Conformity to the purpose of
the SIP means that transportation activities will not cause or
contribute to new air quality violations, worsen existing violations,
or delay timely attainment of the relevant air quality standards.
Transportation conformity applies under EPA's conformity regulations at
40 CFR 51.390 and part 93 to areas that are designated nonattainment
and those redesignated to attainment after 1990 (``maintenance areas''
with SIPs developed under Clean Air Act section 175A) for
transportation-source criteria pollutants. The Clean Air Act gives EPA
the statutory authority to establish the criteria and procedures for
determining whether transportation activities conform to the SIP.
    This action does not impose any new information collection burden
or any new information collection requirements. However, the Office of
Management and Budget has previously approved the information
collection requirements under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The information collection requirements of
EPA's existing transportation conformity rule and the proposed
revisions in today's action are addressed by two information collection
requests (ICRs). Requirements for carbon monoxide, PM10,
nitrogen dioxide, and 1-hour ozone nonattainment and maintenance areas
are covered under the DOT ICR entitled, ``Metropolitan and Statewide
Transportation Planning,'' with the OMB control number of 2132-0529.
Requirements related to PM2.5 and 8-hour ozone nonattainment
and maintenance areas are covered by the EPA ICR entitled,
``Transportation Conformity Determinations for Federally Funded and
Approved Transportation Plans, Programs and Projects Under the New 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards,'' with OMB control number 2060-0561, EPA ICR number 2130.02.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating,
verifying, processing, maintaining, disclosing, and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
    An agency may not collect information, and a person is not required
to respond to an agency's request for information unless it has a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of rules subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the Agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
organizations and small government jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
regulation directly affects federal agencies and metropolitan planning
organizations that, by definition, are designated under federal
transportation laws only for metropolitan areas with a population of at
least 50,000. These organizations do not constitute small entities
within the meaning of the Regulatory Flexibility Act. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    EPA has determined that this proposal itself does not contain a
federal mandate that may result in expenditures of $100 million or more
by state, local, and tribal governments, in the aggregate, or the
private sector in any one year. The primary purpose of this proposal is
to amend the conformity rule to be

consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU.
The Clean Air Act amendments made by SAFETEA-LU were intended to reduce
the burden of demonstrating conformity in designated nonattainment and
maintenance areas subject to conformity requirements. Thus, although
this proposal explains how to implement these Clean Air Act amendments,
it merely implements already established law that imposes conformity
requirements and does not itself impose requirements that may result in
expenditures of $100 million or more in any year. Thus, today's
proposal is not subject to the requirements of sections 202 and 205 of
the UMRA and EPA has not prepared a statement with respect to budgetary
impacts.
    EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. This rule will not significantly or uniquely impact small
governments because it directly affects federal agencies and
metropolitan planning organizations that, by definition, are designated
under federal transportation laws only for metropolitan areas with a
population of at least 50,000. Additionally, this proposal explains how
to implement Clean Air Act requirements, as such it merely implements
already established law that imposes conformity requirements and does
not itself impose requirements.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on states, on the relationship
between the national government and states, or on the distribution of
power and responsibilities among the various levels of government, as
specified in Executive Order 13132. The Clean Air Act requires
conformity to apply in certain nonattainment and maintenance areas as a
matter of law, and this proposed action merely proposes to establish
and revise procedures for transportation planning entities in subject
areas to follow in meeting their existing statutory obligations. Thus,
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communication between EPA and state and local
governments, EPA specifically solicits comment on this proposed rule
from state and local officials.

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

    Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and the Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes.''
    Today's proposed amendments to the conformity rule do not
significantly or uniquely affect the communities of Indian tribal
governments, as the Clean Air Act requires transportation conformity to
apply in any area that is designated nonattainment or maintenance by
EPA. This proposal would amend the conformity rule to be consistent
with Clean Air Act section 176(c) as amended by SAFETEA-LU. The Clean
Air Act amendments made by SAFETEA-LU affect nonattainment and
maintenance areas subject to conformity requirements. This proposed
rule does not have tribal implcations, as specified in Executive Order
13175. Accordingly, Executive Order 13175 does not apply to this rule.

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

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997,) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because
the Agency does not have reason to believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children.

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

    This proposal is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this proposal is not likely
to have any significant adverse effects on energy supply.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    This proposal does not involve technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards.

List of Subjects in 40 CFR Parts 51 and 93

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

    Dated: April 18, 2007.
Stephen L. Johnson,
Administrator.
    For the reasons set out in the preamble, 40 CFR parts 51 and 93 are
proposed to be amended as follows:

PART 51--[AMENDED]

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

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

Subpart T--[Amended]

    2. Section 51.390 is revised to read as follows:

Sec.  51.390  Implementation plan revision.

    (a) Purpose and applicability. The federal conformity rules under
part 93, subpart A, of this chapter, in addition to any existing
applicable state requirements, establish the conformity criteria and
procedures necessary to meet the requirements of Clean Air Act section
176(c) until such time as EPA approves the conformity implementation
plan revision required by this subpart. A state with an area subject to
this subpart and part 93, subpart A, of this chapter must submit to EPA
a revision to its implementation plan which contains criteria and
procedures for DOT, MPOs and other state or local agencies to assess
the conformity of transportation plans, programs, and projects,
consistent with this subpart and part 93, subpart A, of this chapter.
The federal conformity regulations contained in part 93, subpart A, of
this chapter would continue to apply for the portion of the
requirements that the state did not include in its conformity
implementation plan and the portion, if any, of the state's conformity
provisions that is not approved by EPA. In addition, any previously
applicable implementation plan conformity requirements remain
enforceable until the state submits a revision to its applicable
implementation plan to specifically remove them and that revision is
approved by EPA.
    (b) Conformity implementation plan content. To satisfy the
requirements of Clean Air Act section 176(c)(4)(E), the implementation
plan revision required by this section must include the following three
requirements of part 93, subpart A, of this chapter: Sec. Sec.  93.105,
93.122(a)(4)(ii), and 93.125(c). A state may elect to include any other
provisions of part 93, subpart A. If the provisions of the following
sections of part 93, subpart A, of this chapter are included, such
provisions must be included in verbatim form, except insofar as needed
to clarify or to give effect to a stated intent in the revision to
establish criteria and procedures more stringent than the requirements
stated in this chapter: Sec. Sec.  93.101, 93.102, 93.103, 93.104,
93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114, 93.115, 93.116,
93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and 93.127. A state's
conformity provisions may contain criteria and procedures more
stringent than the requirements described in this subpart and part 93,
subpart A, of this chapter only if the state's conformity provisions
apply equally to non-federal as well as federal entities.
    (c) Timing and approval. A state must submit this revision to EPA
by November 25, 1994 or within 12 months of an area's redesignation
from attainment to nonattainment, if the state has not previously
submitted such a revision. The state must also revise its conformity
implementation plan within 12 months of the date of publication of any
final amendments to Sec. Sec.  93.105, 93.122(a)(4)(ii), and 93.125(c)
of this chapter, as appropriate. Any other portions of part 93, subpart
A, of this chapter that the state has included in its conformity
implementation plan and EPA has approved must be revised in the state's
implementation plan and submitted to EPA within 12 months of the date
of publication of any final amendments to such sections. EPA will
provide DOT with a 30-day comment period before taking action to
approve or disapprove the submission. In order for EPA to approve the
implementation plan revision submitted to EPA under this subpart, the
plan revision must address and give full legal effect to the following
three requirements of part 93, subpart A: Sec. Sec.  93.105,
93.122(a)(4)(ii), and 93.125(c) of this chapter. Any other provisions
that are incorporated into the conformity implementation plan must also
be done in a manner that gives them full legal effect. Following EPA
approval of the state conformity provisions (or a portion thereof) in a
revision to the state's conformity implementation plan, conformity
determinations will be governed by the approved (or approved portion of
the) state criteria and procedures as well as any applicable portions
of the federal conformity rules that are not addressed by the approved
conformity SIP.

PART 93--[AMENDED]

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

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

    4. Section 93.101 is amended by:
    a. Revising the definitions for ``Metropolitan planning
organization (MPO)'' and ``Transportation improvement program (TIP)'';
and
    b. Revising the first sentence of the definition for
``Transportation control measure (TCM)''.
    The revisions read as follows:

Sec.  93.101  Definitions.

* * * * *
    Metropolitan planning organization (MPO) means the policy board of
an organization created as a result of the designation process in 23
U.S.C. 134(d).
* * * * *
    Transportation control measure (TCM) is any measure that is
specifically identified and committed to in the applicable
implementation plan, including a substitute or additional TCM that is
incorporated into the applicable SIP through the process established in
CAA section 176(c)(8), that is either one of the types listed in CAA
section 108, or any other measure for the purpose of reducing emissions
or concentrations of air pollutants from transportation sources by
reducing vehicle use or changing traffic flow or congestion conditions.
* * *
    Transportation improvement program (TIP) means a transportation
improvement program developed by a metropolitan planning organization
under 23 U.S.C. 134(j).
* * * * *

Sec.  93.102  [Amended]

    5. Section 93.102 is amended as follows:
    a. In paragraph (b)(2)(v), revising ``sulfur oxides
(SOx)'' to read ``sulfur dioxide (SO2)''; and
    b. In paragraph (b)(4), revising ``for 20 years from the date EPA
approves the area's request under section 107(d) of the CAA for
redesignation to attainment'' to read ``through the last year of a
maintenance area's approved CAA section 175A(b) maintenance plan''.
    6. Section 93.104 is amended as follows:
    a. By revising paragraphs (b)(2), (b)(3), and (c)(3);
    b. By revising paragraph (e) introductory text; and
    c. By adding paragraph (f).

Sec.  93.104  Frequency of conformity determinations.

* * * * *
    (b) * * *
    (1) * * *
    (2) All transportation plan amendments must be found to conform
before the transportation plan amendments are approved by the MPO or
accepted by DOT, unless the amendment merely adds or deletes

exempt projects listed in Sec.  93.126 or Sec.  93.127. The conformity
determination must be based on the transportation plan and the
amendment taken as a whole.
    (3) The MPO and DOT must determine the conformity of the
transportation plan (including a new regional emissions analysis) no
less frequently than every four years. If more than four years elapse
after DOT's conformity determination without the MPO and DOT
determining conformity of the transportation plan, a 12-month grace
period will be implemented as described in paragraph (f) of this
section. At the end of this 12-month grace period, the existing
conformity determination will lapse.
    (c) * * *
    (3) The MPO and DOT must determine the conformity of the TIP
(including a new regional emissions analysis) no less frequently than
every four years. If more than four years elapse after DOT's conformity
determination without the MPO and DOT determining conformity of the
TIP, a 12-month grace period will be implemented as described in
paragraph (f) of this section. At the end of this 12-month grace
period, the existing conformity determination will lapse.
* * * * *
    (e) Triggers for transportation plan and TIP conformity
determinations. Conformity of existing transportation plans and TIPs
must be redetermined within two years of the following, or after a 12-
month grace period (as described in paragraph (f) of this section) the
existing conformity determination will lapse, and no new project-level
conformity determinations may be made until conformity of the
transportation plan and TIP has been determined by the MPO and DOT:
* * * * *
    (f) Lapse grace period. During the 12-month grace period referenced
in paragraphs (b)(3), (c)(3), and (e) of this section, a project may be
found to conform according to the requirements of this part if:
    (1) The project is included in the currently conforming
transportation plan and TIP (or regional emissions analysis); or
    (2) The project is included in the most recent conforming
transportation plan and TIP (or regional emissions analysis).

Sec.  93.105  [Amended]

    7. Section 93.105 is amended by removing ``revisions or'' in
paragraph (c)(1)(v), and by revising the reference ``23 CFR
450.316(b)'' in paragraph (e) to read as ``23 CFR 450.316(a)''.
    8. Section 93.106 is amended as follows:
    a. By revising the section heading;
    b. By revising paragraphs (a)(1)(iii) and (iv);
    c. By adding new paragraph (a)(v);
    d. By redesignating paragraph (d) as paragraph (e); and
    e. By adding new paragraph (d).

Sec.  93.106  Content of transportation plans and timeframe of
conformity determinations.

    (a) * * *
    (1) * * *
    (iii) The attainment year must be a horizon year if it is in the
timeframe of the transportation plan and conformity determination;
    (iv) The last year of the transportation plan's forecast period
must be a horizon year; and
    (v) If the timeframe of the conformity determination has been
shortened under paragraph (d) of this section, the last year of the
timeframe of the conformity determination must be a horizon year.
* * * * *
    (d) Timeframe of conformity determination. (1) Unless an election
is made under paragraph (d)(2) or (d)(3) of this section, the timeframe
of the conformity determination must be through the last year of the
transportation plan's forecast period.
    (2) For areas that do not have an adequate or approved CAA section
175A(b) maintenance plan, the MPO may elect to shorten the timeframe of
the transportation plan and TIP conformity determination, after
consultation with state and local air quality agencies, solicitation of
public comments, and consideration of such comments.
    (i) The shortened timeframe of the conformity determination must be
the longest of the following:
    (A) The tenth year of the transportation plan;
    (B) The latest year in the submitted or applicable implementation
plan that contains an adequate or approved motor vehicle emissions
budget(s); or
    (C) The year after the completion date of a regionally significant
project if the project is included in the TIP or the project requires
approval before the subsequent conformity determination.
    (ii) The conformity determination must be accompanied by a regional
emissions analysis (for informational purposes only) for the last year
of the transportation plan and for any year shown to exceed motor
vehicle emissions budgets in a prior regional emissions analysis, if
such a year extends beyond the timeframe of the conformity
determination.
    (3) For areas that have an adequate or approved CAA section 175A(b)
maintenance plan, the MPO may elect to shorten the timeframe of the
conformity determination to extend through the last year of such
maintenance plan after consultation with state and local air quality
agencies, solicitation of public comments, and consideration of such
comments.
    (4) Any election made by an MPO under paragraphs (d)(2) or (d)(3)
of this section shall continue in effect until the MPO elects
otherwise, after consultation with state and local air quality
agencies, solicitation of public comments, and consideration of such
comments.
* * * * *

Sec.  93.109  [Amended]

    9. Section 93.109 is amended as follows:
    a. By removing ``, subject to the exception in paragraph
(e)(2)(v)'' in the introductory text of paragraph (e)(2);
    b. By removing paragraph (e)(2)(v); and
    c. By revising in paragraph (l)(2)(i) ``Sec. Sec.  93.118 and
93.119'' to read ``Sec. Sec.  93.106(d), 93.116, 93.118, and 93.119''
and by adding to the end of this same paragraph, ``When the
requirements of Sec.  93.106(d) apply to isolated rural nonattainment
and maintenance areas, references to ``MPO'' should be taken to mean
the state department of transportation.''
    10. Section 93.114 is amended by revising the introductory text to
read as follows:

Sec.  93.114  Criteria and procedures: Currently conforming
transportation plan and TIP.

    There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval, or a project
must meet the requirements in Sec.  93.104(f) during the 12-month lapse
grace period.
* * * * *
    11. Section 93.115 is amended by revising the section heading and
adding a new paragraph (e) to read as follows:

Sec.  93.115  Criteria and procedures: Projects from a transportation
plan and TIP.

* * * * *
    (e) Notwithstanding the requirements of paragraphs (a), (b), and
(c) of this section, a project must meet the requirements of Sec.
93.104(f) during the 12-month lapse grace period.

Sec.  93.116  [Amended]

    12. Section 93.116 is amended by removing in paragraph (a) ``(or
regional emissions analysis)''.
    13. Section 93.118 is amended as follows:

    a. By revising paragraph (b) introductory text;
    b. By revising the first sentence in paragraph (d)(2); and
    c. By adding new paragraph (d)(3) to read as follows:

Sec.  93.118  Criteria and procedures: Motor vehicle emissions budget.

* * * * *
    (b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes motor vehicle emissions
budget(s), for the attainment year (if it is within the timeframe of
the transportation plan and conformity determination), for the last
year of the timeframe of the conformity determination (as described
under Sec.  93.106(d)), and for any intermediate years within the
timeframe of the conformity determination as necessary so that the
years for which consistency is demonstrated are no more than ten years
apart, as follows:
* * * * *
    (d) * * *
    (2) The regional emissions analysis may be performed for any years
in the timeframe of the conformity determination (as described under
Sec.  93.106(d)) provided they are not more than ten years apart and
provided the analysis is performed for the attainment year (if it is in
the timeframe of the transportation plan and conformity determination)
and the last year of the timeframe of the conformity determination. * *
*
    (3) When the timeframe of the conformity determination is shortened
under Sec.  93.106(d)(2), the conformity determination must be
accompanied by a regional emissions analysis (for informational
purposes only) for the last year of the transportation plan, and for
any year shown to exceed motor vehicle emissions budgets in a prior
regional emissions analysis (if such a year extends beyond the
timeframe of the conformity determination).
* * * * *
    14. Section 93.119 is amended to read as follows:
    a. In paragraph (f)(10), by revising ``SOX'' to read
``SO2'';
    b. By revising the last sentence in paragraph (g)(1); and
    c. By adding new paragraph (g)(3).

Sec.  93.119  Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.

* * * * *
    (g) * * *
    (1) * * * The last year of the timeframe of the conformity
determination (as described under Sec.  93.106(d)) must also be an
analysis year.
* * * * *
    (3) When the timeframe of the conformity determination is shortened
under Sec.  93.106(d)(2), the conformity determination must be
accompanied by a regional emissions analysis (for informational
purposes only) for the last year of the transportation plan.
* * * * *
    15. Section 93.120 is amended by revising paragraph (a)(2) to read
as follows:

Sec.  93.120  Consequences of control strategy implementation plan
failures.

    (a) * * *
    (1) * * *
    (2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, only projects in the
currently conforming TIP or that meet the requirements of Sec.
93.104(f) during the 12-month lapse grace period may be found to
conform. This means that beginning on the effective date of a
disapproval without a protective finding, no transportation plan, TIP,
or project not in the currently conforming TIP or that meets the
requirements of Sec.  93.104(f) during the 12-month lapse grace period
may be found to conform until another control strategy implementation
plan revision fulfilling the same CAA requirements is submitted, EPA
finds its motor vehicle emissions budget(s) adequate pursuant to Sec.
93.118 or approves the submission, and conformity to the implementation
plan revision is determined.
    16. Section 93.121 is amended by revising paragraphs (a)(1) and (2)
to read as follows:

Sec.  93.121  Requirements for adoption or approval of projects by
other recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.

    (a) * * *
    (1) The project comes from the currently conforming transportation
plan and TIP (or meets the requirements of Sec.  93.104(f) during the
12-month lapse grace period), and the project's design concept and
scope have not changed significantly from those that were included in
the regional emissions analysis for that transportation plan and TIP;
    (2) The project is included in the regional emissions analysis for
the currently conforming transportation plan and TIP conformity
determination (or meets the requirements of Sec.  93.104(f) during the
12-month lapse grace period), even if the project is not strictly
included in the transportation plan or TIP for the purpose of MPO
project selection or endorsement, and the project's design concept and
scope have not changed significantly from those that were included in
the regional emissions analysis; or
* * * * *
    17. Section 93.123 is amended by adding paragraph (a)(3) and
revising paragraph (b)(1)(i) to read as follows:

Sec.  93.123  Procedures for determining localized CO, PM10,
and PM2.5 concentrations (hot-spot analysis).

    (a) * * *
    (3) DOT, in consultation with EPA, may also choose to make a
categorical hot-spot finding that Sec.  93.116(a) is met without
further hot-spot analysis for any project described in paragraphs
(a)(1) and (a)(2) of this section based on appropriate modeling. DOT,
in consultation with EPA, may also consider the current air quality
circumstances of a given CO nonattainment or maintenance area in
categorical hot-spot findings for applicable FHWA or FTA projects.
    (b) * * *
    (1) * * *
    (i) New highway projects that have a significant number of diesel
vehicles, and expanded highway projects that have a significant
increase in the number of diesel vehicles;
* * * * *

Sec.  93.126  [Amended]

    18. Section 93.126, Table 2 is amended by revising ``Hazard
elimination program'' to read ``Projects that correct, improve, or
eliminate a hazardous location or feature'', ``Safety improvement
program'' to read ``Highway Safety Improvement Program
implementation'', and ``Pavement marking demonstration'' to read
``Pavement marking''.

[FR Doc. E7-7770 Filed 5-1-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: May 8, 2009 (Volume 74, Number 88)]
[Notices]
[Page 21680]
[DOCID:fr08my09-71]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12611-003]

Verdant Power, LLC; Notice Concluding Pre-Filing Process and
Approving Process Plan and Schedule

May 1, 2009.
    a. Type of Filing: Notice of Intent to File Application for License
for a Hydrokinetic Pilot Project.
    b. Project No.: 12611-003.
    c. Dated Filed: November 25, 2008.
    d. Submitted By: Verdant Power, LLC.
    e. Name of Project: Roosevelt Island Tidal Energy (RITE) Project.
    f. Location: In the east channel of the East River in New York
City, New York. The project would not occupy federal lands.
    g. Filed Pursuant to: 18 CFR 5.3 of the Commission's regulations
    h. Applicant Contact: Ronald F. Smith, Verdant Power, LLC, The
Octagon, 888 Main Street, New York, NY 10044<PHONE_NUMBER> ext. 601.
    i. FERC Contact: Tom Dean<PHONE_NUMBER>.
    j. Verdant Power, LLC (Verdant Power) has filed with the
Commission: (1) A notice of intent (NOI) to file an application for a
pilot hydrokinetic hydropower project and a draft license application
with monitoring plans; (2) a request for waivers of certain Integrated
Licensing Process (ILP) regulations necessary for expedited processing
of a license application for a hydrokinetic pilot project; (3) a
proposed process plan and schedule; and (4) a request to be designated
as the non-federal representative for section 7 of the Endangered
Species Act consultation and for section 106 consultation under the
National Historic Preservation Act.
    k. A notice was issued on December 1, 2008, soliciting comments on
the draft license application from agencies and stakeholders. Comments
were filed by federal and state agencies, and non-governmental
organizations. No comments were filed opposing the request to waive the
integrated licensing process regulations or the proposed process plan
and schedule.
    l. The December 1, 2008, notice approved Verdant Power's request to
be designated as the non-federal representative for section 7 of the
Endangered Species Act (ESA) with the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service, and its request to initiate
consultation under section 106 of the National Historic Preservation
Act with the New York State Historic Preservation Officer.
    m. The proposed RITE Project would consist of: (1) A field array of
30 35-kilowatt, 5-meter-diameter axial flow Kinetic Hydropower System
(KHPS) turbine-generator units mounted on ten tri-frame mounts with a
total capacity of about 1 megawatt; (2) underwater cables from each
turbine to five shoreline switchgear vaults that would interconnect to
a control room and interconnection points; and (3) appurtenant
facilities for navigation safety and operation. The estimated annual
generation of the proposed project would be between 1,680 and 2,400
megawatt-hours.
    n. The pre-filing process has been concluded and the requisite
regulations have been waived such that the process and schedule
indicated below can be implemented.
    o. Post-filing process schedule. The post-filing process will be
conducted pursuant to the following schedule. Revisions to the schedule
may be made as needed.

------------------------------------------------------------------------
                 Milestones                             Dates
------------------------------------------------------------------------
Final license application expected.........  July 31, 2009.
Issue notice of acceptance and ready for     August 17, 2009.
 environmental analysis and request for
 interventions.
Issue biological assessment................  August 17, 2009.
Comments and interventions due.............  September 16, 2009.
Issue notice of availability of              November 16, 2009.
 environmental assessment.
Comments due and 10(j) resolution, if        December 16, 2009.
 needed.
------------------------------------------------------------------------

    p. Register online at http://ferc.gov/esubscribenow.htm to be
notified via e-mail of new filing and issuances related to this or
other pending projects. For assistance, contact FERC Online Support.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-10695 Filed 5-7-09; 8:45 am]