SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2006-0612; FRL-xxx-x]

RIN 2060-AN82

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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

SUMMARY:  In this action, EPA is amending the transportation conformity
rule to finalize provisions that were proposed on May 2, 2007.  The
Clean Air Act requires federally supported transportation plans,
transportation improvement programs, and projects to be consistent with
(“conform to”) the purpose of the state air quality implementation
plan.  Most of these amendments are necessary to make the rule
consistent with Clean Air Act section 176(c) as amended by SAFETEA-LU on
August 10, 2005 (Public Law 109-59), including changes to the
regulations to reflect that the Clean Air Act now provides more time for
state and local governments to meet conformity requirements, provides a
one-year grace period before the consequences of not meeting certain
conformity requirements apply, allows the option of shortening the
timeframe of conformity determinations, and streamlines other
provisions.  This final rule also includes minor amendments that are not
related to SAFETEA-LU, such as allowing the Department of Transportation
(DOT) to make categorical hot-spot findings for appropriate projects in
carbon monoxide nonattainment and maintenance areas.

	EPA has consulted with DOT, and they concur with this final rule.

EFFECTIVE DATE:  This final rule is effective on [insert date, 30 days
after publication in the Federal Register].

ADDRESSES:  EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2006-0612.  All documents in the docket are listed on the
  HYPERLINK "http://www.regulations.gov"  www.regulations.gov  web site.
Although listed in the index, some information is not publicly
available, e.g., confidential business information (CBI) or other
information whose disclosure is restricted by statute.  Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form.  Publicly
available docket materials are available either electronically through
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  or in hard
copy at the Air Docket, EPA/DC, EPA West Building, Room 3334, 1301
Constitution Ave., NW, Washington, DC.  The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays.  The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT:    SEQ CHAPTER \h \r 1 Laura Berry,
State Measures and Conformity Group, Transportation and Regional
Programs Division, Environmental Protection Agency, 2000 Traverwood
Road, Ann Arbor, MI 48105, e-mail address:      HYPERLINK
<EMAIL_ADDRESS><EMAIL_ADDRESS>, telephone
number:<PHONE_NUMBER>, fax number:<PHONE_NUMBER>, or Rudy Kapichak,
State Measures and Conformity Group, Transportation and Regional
Programs Division, Environmental Protection Agency, 2000 Traverwood
Road, Ann Arbor, MI 48105, e-mail address:     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

  Background

  Frequency of Conformity Determinations

  Deadline for Conformity Determinations When a New Budget is
Established

V.  Lapse Grace Period

VI.  Timeframes for Conformity Determinations

VII.  Conformity SIPs

VIII.  Transportation Control Measure Substitutions and Additions

IX.  Categorical Hot-spot Findings for Projects in Carbon Monoxide
Nonattainment and Maintenance Areas

X.  Deletion of Regulation 40 CFR 93.109(e)(2)(v)

XI.  Miscellaneous Revisions

XII.  Statutory and Executive Order Reviews

I.	General Information

A.	Does This Action Apply to Me?

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

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

B.	How Can I Get Copies of This Document?

1.	Docket

	EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-2006-0612.  You can get a paper copy of this
Federal Register document, as well as the documents specifically
referenced in this action, any public comments received, and other
information related to this action at the official public docket.  See
ADDRESSES section for its location.

2.  	Electronic Access

	You may access this Federal Register document electronically through
EPA’s Transportation Conformity 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 view public comments, access the index listing
of the contents of the official public docket, and access those
documents in the public docket that are available electronically.  Once
in the system, select “search,” then key in the appropriate docket
identification number.

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

To the extent feasible, publicly available docket materials will be made
available in the electronic public docket.  When a document is selected
from the index list in EPA Dockets, the system will identify whether the
document is available for viewing in the electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in Section I.B.1. above.  EPA intends to
work towards providing electronic access in the future to all of the
publicly available docket materials through the electronic public
docket.

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

	Background

	What Is Transportation Conformity?

	Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway
and transit project activities are consistent with (“conform to”)
the purpose of the state air quality implementation plan (SIP).
Conformity currently applies to areas that are designated nonattainment
and those redesignated to attainment after 1990 (“maintenance areas”
with plans developed under Clean Air Act section 175A) for the following
transportation-related criteria pollutants:  ozone, particulate matter
(PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide (NO2).
Conformity to the purpose of the SIP means that transportation
activities will not cause or contribute to new air quality violations,
worsen existing violations, or delay timely attainment of the relevant
national ambient air quality standards (NAAQS or “standards”).

	EPA’s transportation conformity rule establishes the criteria and
procedures for determining whether transportation activities conform to
the SIP.  EPA first promulgated the transportation conformity rule on
November 24, 1993 (58 FR 62188), and subsequently published several
other amendments.  See EPA’s website at   HYPERLINK
"http://www.epa.gov/otaq/stateresources/transconf/index.htm"
http://www.epa.gov/otaq/stateresources/transconf/index.htm  for further
information.

B.	Why Are We Issuing This Final Rule?

	On August 10, 2005, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed
into law (Public Law 109-59).  SAFETEA-LU section 6011 amended Clear Air
Act section 176(c) by:

changing the required frequency of transportation conformity
determinations from three years to four years;

providing two years to determine conformity after new SIP motor vehicle
emissions budgets are either found adequate, approved or promulgated;

adding a one-year grace period before the consequences of a conformity
lapse apply;

providing an option for reducing the time period addressed by conformity
determinations;

streamlining requirements for conformity SIPs; and

providing procedures for areas to use in substituting or adding
transportation control measures (TCMs) to approved SIPs.

SAFETEA-LU section 6011(g) requires that EPA revise the

transportation conformity rule as necessary to address the new statutory
provisions.  This final rule addresses the relevant changes that
SAFETEA-LU made to the Clean Air Act.

This final rule replaces the joint EPA-DOT interim guidance issued
February 14, 2006, which provided guidance to areas subject to
transportation conformity on implementing the changes to the Clean Air
Act made by SAFETEA-LU.  This final rule is consistent with the February
2006 guidance.

	DOT is our federal partner in implementing the transportation
conformity regulations.  EPA has consulted with DOT on the development
of this final rule, and DOT concurs with its content.

	EPA received comments on the proposed rule from 16 different entities,
though some commenters submitted comments jointly.  Commenters included
state DOTs, MPOs, state and local air quality agencies, government
associations, and industry associations.

	The majority of commenters supported EPA’s proposal in general, and
specific provisions in particular, which are discussed below.  EPA is
addressing these and other comments in the relevant sections of the
preamble and in the responses to comments document, which can be found
in the public docket for this final rule.

III.	Frequency of Conformity Determinations

A.	Description of Final Rule

EPA is changing §93.104(b)(3) to require that the MPO and DOT determine
conformity of a transportation plan at least every four years, and
§93.104(c)(3) to require that the MPO and DOT determine conformity of a
transportation improvement program (TIP) at least every four years.  The
pre-existing regulations required these determinations to be made at
least every three years.

B.	Rationale and Response to Comments

	These changes to §93.104 are needed to make the conformity regulation
consistent with the law.  In SAFETEA-LU, Congress amended Clean Air Act
section 176(c)(4)(D)(ii) to require that conformity be determined with a
frequency of four years, unless the MPO decides to update its
transportation plan or TIP more frequently, or the MPO is required to
determine conformity in response to a trigger (see Section IV.).  The
Clean Air Act previously required transportation plan and TIP conformity
to be determined every three years.  These Clean Air Act provisions have
been in effect as of August 10, 2005.

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

	As already stated, and as other commenters noted, this change is
necessary to make the regulation consistent with the law.  Furthermore,
EPA believes that despite this change in the required frequency of
conformity determinations, the transportation conformity program still
achieves its purpose in ensuring transportation actions conform to the
SIP.  Transportation plans and TIPs must still conform before they are
adopted.

Several commenters suggested that EPA also change “three years” to
“four years” in §93.104(d) of the conformity rule.  This provision
describes the circumstances when a conformity determination for a
project is needed, one of which is when more than three years have
elapsed since the most recent major step to advance the project.
Commenters requested that three years be changed to four years to be
consistent with SAFETEA-LU provisions of determining conformity on TIPs
and transportation plans every four years.

EPA is not changing §93.104(d) in this rulemaking.  First, this change
was not proposed, as it was not required by the Clean Air Act as amended
by SAFETEA-LU.  SAFETEA-LU aligned transportation plan, TIP, and the
frequency of transportation plan and TIP conformity determinations to
create efficiencies in the overall planning process, rather than to
allow more time when project phases are delayed.

Second, the conformity rule requires that a new conformity determination
be done for a project if more than three years have elapsed since a
major step has occurred to be consistent with the regulations under the
National Environmental Policy Act (NEPA), rather than with the frequency
of conformity determinations for transportation plans and TIPs.  The
NEPA regulations require reevaluation of NEPA documents for projects
which have not had major action for three years.  Please refer to “H.
Time Limit on Project-Level Determinations” in the preamble of the
November 24, 1993, conformity rule (58 FR 62200) for more explanation of
this point.

C.	Overlap with Transportation Planning Frequency Requirements

In addition to changing the required frequency of conformity
determinations from at least every three years to every four years,
SAFETEA-LU also changed the required frequency for updating
transportation plans and TIPs for transportation planning purposes.
Prior to SAFETEA-LU, transportation plans in nonattainment and
maintenance areas had to be updated every three years and TIPs updated
every two years; now both transportation plans and TIPs must be updated
every four years in these areas.  However, MPOs can voluntarily update
their transportation plans and TIPs more frequently.  Consequently,
conformity may still need to be determined more frequently than every
four years, because an updated or amended transportation plan or TIP
still must conform before it is adopted, regardless of the last time a
conformity determination was done.  Further discussion of the
implementation of the SAFETEA-LU statewide and metropolitan
transportation planning requirements can be found in DOT’s February
14, 2007, final rulemaking on metropolitan and statewide transportation
planning (72 FR 7224).

	Today’s change to the required frequency of transportation plan and
TIP conformity determinations does not change other details for
implementing conformity and planning frequency requirements.  Both the
transportation planning update clock and the conformity update clock
continue to be reset on the date of the FHWA and FTA conformity
determination for the respective transportation plan and/or TIP.  For
more information, see DOT’s May 25, 2001, guidance, available on
EPA’s Website at
http://www.epa.gov/otaq/stateresources/transconf/policy.htm and on
DOT’s Website at   HYPERLINK
"http://www.fhwa.dot.gov/environment/conformity/planup_m.htm"
http://www.fhwa.dot.gov/environment/conformity/planup_m.htm .

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

1.	Description of Final Rule

EPA is revising §93.120(a)(2) to allow projects in the first four years
of the conforming transportation plan and TIP, rather than the first
three years of the conforming transportation plan and TIP, to proceed
after final EPA disapproval of a control strategy SIP without a
protective finding, i.e., when a conformity freeze occurs.  In this
section of the regulation, EPA is changing the two instances of “three
years” to “four years,” similar to the changes made in
§§93.104(b)(3) and (c)(3), the other sections of the rule affected by
the change in the required frequency of conformity determinations.
Though the final regulation at §93.120(a)(2) differs from the language
that was proposed, it is the same in substance as the proposed rule.

2.	Rationale and Response to Comments

EPA is making this change to be consistent with the general
implementation of SAFETEA-LU, which requires transportation plans and
TIPs to be updated every four years and requires TIPs to cover a period
of four years. EPA had proposed to generalize this language to allow a
project to proceed during a freeze if it was included in the conforming
TIP in order to account for the transition to new SAFETEA-LU
transportation planning requirements.  EPA believed the proposed
language would be useful during the transition to SAFETEA-LU’s
planning requirements.  We believed that when the rule became final,
some MPOs would still have three-year TIPs prior to developing four-year
TIPs for SAFETEA-LU.  See the preamble to the May 2, 2007, proposed rule
(72 FR 24475) for EPA’s full rationale.  Several commenters supported
the language we had proposed, because it accounted for the transition to
SAFETEA-LU’s planning requirements.  EPA received no comments opposing
it.

However, the transition period ended on July 1, 2007, and therefore the
proposal’s rationale is no longer relevant.  EPA believes the better
update to §93.120(a)(2) is simply to change the instances of “three
years” to “four years,” as it is more consistent with the prior
regulatory language.

Today’s final rule at §93.120(a)(2) is consistent with the proposed
rule for this section.  Though the proposed language had eliminated the
reference to a conforming transportation plan, EPA did not intend to
change other rule requirements.  In fact, EPA stated so in the preamble
to the May 2, 2007, proposed rule:

However, this proposed general language is not intended to change other
rule requirements.  Although EPA’s change to §93.120(a)(2) would no
longer include the phrase “conforming transportation plan,” the
requirements of §93.114 continue to apply.  Specifically, there must
still be a currently conforming transportation plan in place to approve
projects during a conformity freeze (except as noted in Section V.E.,
below).  (72 FR 24475)

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

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

A.	Description of the Final Rule

EPA is revising §93.104(e), which requires a new transportation plan
and TIP conformity determination to be made after actions that establish
a new motor vehicle emissions budget for conformity, also known as
“triggers.”  The revision gives MPOs and DOT two years, increased
from 18 months, to determine conformity of a transportation plan and TIP
when a new budget is established.  An MPO and DOT must make a conformity
determination within two years of the effective date of:

EPA’s finding that a motor vehicle emissions budget(s)
(“budget(s)”) in a submitted SIP is adequate (40 CFR 93.104(e)(1));

EPA’s approval of a SIP, if the budget(s) from that SIP have not yet
been used in a conformity determination (40 CFR 93.104(e)(2)); and

EPA’s promulgation of a federal implementation plan (FIP) with a
budget(s) (40 CFR 93.104(e)(3)).

B.	Rationale and Response to Comments

This change makes the conformity regulation consistent with the current
law.  In SAFETEA-LU, Congress amended the Clean Air Act to give MPOs and
DOT two years before conformity must be determined in response to one of
the conformity triggers above.  Several commenters generally supported
this change, noting that it is necessary to be consistent with the
current law.  This Clean Air Act provision has been in effect as of
August 10, 2005.

The regulation’s description of events that trigger a new conformity
determination have not been changed because they were already consistent
with the amendments made to the Clean Air Act in SAFETEA-LU, for the
reasons described in the preamble to the May 2, 2007, proposed rule (72
FR 24475-6).  EPA also notes that no change is necessary for the point
at which the two-year clocks begin.  The two-year clocks begin on the
effective date of EPA’s adequacy finding or the effective date of
EPA’s SIP approval or FIP promulgation action.  (For more details
regarding the triggers, see Section III. of the August 6, 2002, final
rule at 67 FR 50810 and Section XIX. of the July 1, 2004, final rule, at
69 FR 40050).

V.	Lapse Grace Period

A.	Description of the Final Rule

EPA is adding a one-year grace period before a conformity lapse occurs
when an area misses an applicable deadline.  The applicable deadlines
are those that result from:

the requirements to determine conformity of a transportation plan and
TIP every four years under §93.104(b)(3) and §93.104(c)(3) (see
Section III.), and

the requirement to determine conformity within two years of a trigger
under §93.104(e) (see Section IV.).

EPA notes that the regulatory changes discussed in Section V. of this
preamble do not impact isolated rural nonattainment or maintenance
areas, because these areas do not include an MPO with a transportation
plan or TIP conformity determination that would lapse.  Isolated rural
areas continue to be covered by the requirements in 40 CFR 93.109(l).

	To provide the rules to allow projects to meet conformity requirements
during the lapse grace period, EPA is adding a new provision to the
regulation, §93.104(f).

New §93.104(f)(1) allows non-exempt FHWA/FTA projects to be found to
conform during the lapse grace period if they are included in the
currently conforming transportation plan and TIP.

New §93.104(f)(2) allows non-exempt FHWA/FTA projects to be found to
conform during the lapse grace period if they were included in the most
recent conforming transportation plan and TIP.  However, even though
§93.104(f)(2) allows a project to be found to conform when the
transportation plan and TIP have expired, a project must also meet
DOT’s planning requirements to receive federal funding or approval.

Today’s rulemaking does not change how exempt projects and traffic
signal synchronization projects are addressed under the transportation
conformity rule.  These projects are able to proceed during the lapse
grace period, and for that matter during a conformity lapse, because
exempt projects and traffic signal synchronization projects do not
require project-level conformity determinations per 40 CFR 93.126 and
93.128, respectively.

	In addition, EPA is revising §§93.114, 93.115, and 93.121 by
including a reference to §93.104(f) to account for the lapse grace
period:

Section 93.114 requires that there be a currently conforming
transportation plan and TIP at the time of project approval, except
during the lapse grace period, when a non-exempt project must come from
the most recent conforming transportation plan and TIP.  (A project must
also meet DOT’s planning requirements to receive federal funding or
approval.  See Section V.C. below for further discussion.)

Section 93.115 requires that non-exempt FHWA/FTA projects come from a
conforming transportation plan and TIP, except during the lapse grace
period, when a project could come from the most recent conforming plan
and TIP.  (A project must also meet DOT’s planning requirements to
receive federal funding or approval.  See Section V.C. below for further
discussion.)

Similarly, §93.121 requires that regionally significant non-federal
projects either come from the currently conforming transportation plan
and TIP, or the regional emissions analysis that supports such a
transportation plan and TIP, except during the lapse grace period, when
such projects could be approved if they are from the most recent
conforming transportation plan and TIP, or the regional emissions
analysis that supported the most recent conforming transportation plan
and TIP.

	Note that the lapse grace period only applies to transportation
conformity, and not to DOT’s transportation planning requirements.
DOT and EPA agree that planning requirements still must be met during
the lapse grace period in order for DOT to fund or approve a project as
discussed further in C. of this section.

B.	Rationale and Response to Comments

These changes are necessary to make the conformity regulation consistent
with the amended law and the intentions of Congress.  In SAFETEA-LU,
Congress amended the Clean Air Act to provide a one-year grace period
before the consequences of a conformity lapse apply in section 176(c)(9)
and added a definition of “lapse” in section 176(c)(10).  The
changes to the law have been in effect as of August 10, 2005.  See the
preamble to the May 2, 2007, proposed rule (72 FR 24476-8) for EPA’s
full rationale supporting this provision of the final rule.

Six of the seven commenters who commented on the lapse grace period
supported EPA’s proposal.  These commenters generally believe that
EPA’s proposal to incorporate the lapse grace period into the
conformity rule is consistent with the Clean Air Act as amended by
SAFETEA-LU.  One commenter stated that the lapse grace period allows
time and flexibility for areas to comply with Clean Air Act
requirements.  Another commenter who supported the lapse grace period
specifically agreed with EPA’s interpretation that Congress meant to
allow conformity requirements to be satisfied for projects during the
lapse grace period, even if there is no conforming transportation plan
and TIP at the time.  This commenter opined that any other
interpretation renders Clean Air Act section 176(c)(9) meaningless.

Two commenters requested that EPA clarify the commenters’
interpretation that the lapse grace period applies to projects not from
a conforming transportation plan and TIP as long as the requirements of
40 CFR 93.115(b)(2) are addressed.  EPA disagrees with the commenters’
interpretation; merely meeting §93.115(b)(2) and nothing more would not
be sufficient for a project to proceed during the lapse grace period.
To be found to conform during the lapse grace period, a project must be
from a conforming transportation plan and TIP (§93.104(f)(1)), or from
the most recent conforming transportation plan and TIP (§93.104(f)(2)).

Section 93.115(b) describes the circumstances under which a project is
considered to be from a conforming transportation plan.  Paragraph
(b)(2) provides that if a project is not specifically identified in the
transportation plan, it can be considered to be “from” the plan as
long as it “is consistent with the policies and purpose of the
transportation plan and will not interfere with other projects
specifically included in the transportation plan.”

A project that meets only the requirements of §93.115(b)(2) can be
considered to be from a conforming transportation plan.  But to proceed
during the lapse grace period, it must also be from a conforming or most
recent conforming TIP as well, as required by Clean Air Act sections
176(c)(2)(D) and (c)(2)(C)(i).

The one commenter who opposed EPA’s proposal for the lapse grace
period thought that it was counter to EPA’s mission to protect public
health.  The commenter stated that on-road mobile source emissions are
important and thought that the lapse grace period would increase these
emissions.  In response, first EPA notes that Congress added the lapse
grace period in its amendments to the Clean Air Act, and EPA is simply
revising the regulations to make them consistent with the current law.
Second, EPA does not believe that the lapse grace period will result in
increased emissions because it only allows projects to be found to
conform.  A project cannot actually proceed to completion unless there
is a valid, i.e., currently conforming, TIP that also meets
transportation planning requirements.  Therefore, the project’s
emissions would have been considered in the conformity determination for
this TIP, eliminating the possibility of unanticipated emissions
increases.

D.	How Does the Grace Period Work In Practice?

The one-year conformity lapse grace period begins when the conformity
determination required for a transportation plan or TIP is not made by
the applicable deadline.  As described above, during the grace period, a
project may meet conformity requirements as long as it was included in
either the currently conforming transportation plan and TIP or the most
recent conforming transportation plan and TIP and other project-level
conformity requirements are met.

An FHWA/FTA project must also meet DOT’s planning requirements to
receive federal funding or approval.  Specifically, 23 U.S.C. 134(j)(3)
and 49 U.S.C. 5303(j)(3) require a TIP to be in place and 23 U.S.C.
135(g)(4) and 49 U.S.C. 5304(g)(4) require a statewide TIP (STIP) to be
in place for DOT to authorize transportation projects.  The STIP
contains all of the metropolitan area TIPs in the state.

Three specific scenarios are presented below to show how expiration of
the transportation plan and/or STIP/TIP at the time of the missed
deadline affects the ability to advance FHWA/FTA projects during the
conformity lapse grace period.

Scenario 1:  If the transportation plan has expired, but the STIP/TIP
are still in effect, FHWA/FTA can continue to authorize and take action
on projects in the STIP/TIP throughout the duration of the grace period
or the duration of the STIP/TIP, whichever is shorter.  The TIP and
affected portion of the STIP cannot be amended once the transportation
plan expires.  Prior to transportation plan expiration, an MPO and state
should ensure that the STIP/TIP include the desired projects from the
transportation plan to continue to operate during the conformity lapse
grace period.

	Scenario 2:  If the transportation plan is still in effect, but the
STIP/TIP have expired, FHWA/FTA cannot authorize FHWA/FTA projects.  In
order to advance projects, a new STIP/TIP would have to be developed
that contains only projects that are consistent with the transportation
plan.  A conformity determination would have to be made for the new TIP
unless it includes only exempt projects, traffic signal synchronization
projects, or TCMs in an approved SIP.  For example, if a new TIP
included a non-exempt project from later years of the transportation
plan, the new TIP would require a conformity determination. (However,
the determination could rely on the previous regional emissions analysis
as long as the requirements of 40 CFR 93.122(g) are met.)

	Scenario 3:  If both the transportation plan and the STIP/TIP have
expired, FHWA/FTA will not authorize projects under the planning
regulations.

	Regardless of the scenario, in addition to transportation planning
requirements, project-level conformity requirements must also be met
during the lapse grace period including any required hot-spot analysis.
Refer to the Table 1 in 40 CFR 93.109 for the conformity criteria and
procedures that apply to projects.

D.	Newly Designated Nonattainment Areas

The lapse grace period provision in Clean Air Act section 176(c)(9) does
not apply to the deadline for newly designated nonattainment areas to
make the initial transportation plan/TIP conformity determination within
12 months of the effective date of the nonattainment designation.  The
lapse grace period in Clean Air Act section 176(c)(9) applies prior to
when a lapse occurs, and Clean Air Act section 176(c)(10) and 40 CFR
93.101 define the term “lapse” to mean that the conformity
determination for a transportation plan or TIP has expired.  Therefore,
the lapse grace period does not apply unless an area has already had a
conforming transportation plan and TIP that has expired; it does not
apply to a newly designated area that has not yet made its initial
conformity determination for a transportation plan and TIP for a new
pollutant or air quality standard.

Although the lapse grace period does not apply to newly designated
areas, these areas already have similar existing flexibility because
Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) give newly
designated areas one year before conformity applies, starting from the
effective date of final nonattainment designation.

Although the statutory and regulatory definitions of lapse do not apply
to newly designated areas, once conformity applies, the identical
restrictions of a conformity lapse will exist for any newly designated
nonattainment area that does not have a conforming transportation plan
and TIP in place one year after the effective date of EPA’s
designation.  EPA and DOT will continue to use the term “lapse”
informally to describe these situations.

E.	Conformity Freezes

EPA also notes the interaction of conformity lapse grace periods and
conformity freezes.  A conformity freeze occurs if EPA disapproves a
control strategy SIP without a protective finding for the budgets in
that SIP (see §93.120(a)(2)).  During a freeze, some projects can be
advanced, but the area cannot adopt a new transportation plan or TIP
until a new SIP is submitted with budgets that EPA approves or finds
adequate.  If conformity of a transportation plan and TIP has not been
determined using a new control strategy SIP with budgets that EPA
approves or finds adequate within two years of EPA’s SIP disapproval,
highway sanctions apply (under Clean Air Act section 179(b)(1)) and the
freeze becomes a lapse.

The lapse grace period would apply during a freeze only if the
transportation plan/TIP expire before highway sanctions apply.  The
lapse grace period would apply in this case because the grace period
applies when an area misses an applicable deadline to determine
conformity for the transportation plan and TIP.  The transportation plan
and TIP would remain in a freeze even once the lapse grace period
begins, and would remain frozen until either a conformity determination
is made to new adequate or approved SIP budgets as described above, or
highway sanctions apply.

An area that is in a conformity freeze and subsequently enters the lapse
grace period would lapse at the end of the grace period (one year after
the missed deadline), or when highway sanctions apply, whichever comes
first.  As described above, however, a project must also meet DOT’s
planning requirements to receive federal funding or approval during the
lapse grace period.

If a freeze becomes a lapse because two years transpire from the
effective date of EPA’s disapproval of the SIP (when highway sanctions
are applied), the area cannot use the lapse grace period.  A lapse that
occurs because two years have transpired since EPA’s disapproval of a
SIP is not a lapse that results from missing an applicable deadline to
determine conformity.  Thus, the lapse grace period would not apply by
its own terms when sanctions are applied.

VI.	Timeframes for Conformity Determinations

A.	Overview

Through SAFETEA-LU, Congress added new paragraph (7) to Clean Air Act
section 176(c) to allow areas to elect to shorten the period of time
addressed by their transportation plan/TIP conformity determinations, or
“timeframe.”  Prior to this change, every conformity determination
for a transportation plan and TIP has had to cover the entire timeframe
of the transportation plan.  Transportation plans cover a period of 20
years or longer.  Because of the requirement to determine conformity of
the entire transportation plan, the last year of the transportation plan
has had to be analyzed in all transportation plan or TIP conformity
determinations, as well as other earlier years in the timeframe of the
transportation plan.

Under the amended Clean Air Act, an MPO continues to demonstrate
conformity for the entire timeframe of the transportation plan unless
the MPO elects to shorten the conformity timeframe.  An election to
shorten the conformity timeframe could be made only after consulting
with the state and local air quality agencies and soliciting public
comment and considering such comments.  If an MPO makes this election,
the conformity determination does not have to cover the entire length of
the transportation plan, but in some cases an informational analysis is
also required.

This provision giving areas the option to shorten their conformity
timeframe took effect on August 10, 2005, when SAFETEA-LU became law.
Note, however, that transportation plan/TIP conformity determinations
must cover the entire length of the transportation plan unless an
election is made to shorten the timeframe.

Today EPA is finalizing several changes in the regulatory language to
provide the rules for shortening the conformity timeframe, and most of
these changes are found in §93.106(d).  This section discusses these
changes and is organized as follows:

Metropolitan areas that do not have an adequate or approved second
maintenance plan (Section VI.B.).

Metropolitan areas with adequate or approved second maintenance plans
(Section VI.C.).

How elections are made in metropolitan areas to either shorten the
conformity timeframe, or revert to the original conformity timeframe
once the timeframe has been shortened (Section VI.D.).

Isolated rural areas (Section VI.E.).

Conformity implementation in all areas under a shortened conformity
timeframe, including which years must be analyzed (Section VI.F.).

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

1.	Description of Final Rule

Transportation plan and TIP conformity determinations must cover the
timeframe of the transportation plan, unless an MPO elects to shorten
the timeframe.  This requirement is found in §93.106(d)(1).  In areas
without an adequate or approved second maintenance plan (i.e., a
maintenance plan addressing Clean Air Act section 175A(b)), the Clean
Air Act requires that a shortened conformity determination must extend
through the latest of the following years:

The first 10-year period of the transportation plan;

The latest year for which the SIP (or FIP) applicable to the area
establishes a motor vehicle emission budget; or

The year after the completion date of a regionally significant project
if the project is included in the TIP, or the project requires approval
before the subsequent conformity determination.

	These requirements are found in EPA’s regulation at
§93.106(d)(2)(i).  The final language in §93.106(d)(2)(i) is
consistent with the proposed language, although minor clarifications
have been made in response to comments.  Specifically, the regulation at
§93.106(d)(2)(i) states, “The shortened timeframe of the conformity
determination must extend at least to the latest of the following
years.”  The proposed wording was, “The shortened timeframe of the
conformity determination must be the longest of the following.”

	The final regulation at §93.106(d)(2)(i)(B) is also slightly different
than proposed, but the same in substance as the proposed rule.  This
provision now reads, “The latest year for which an adequate or
approved motor vehicle emissions budget(s) is established in a submitted
or applicable implementation plan” rather than the proposed wording,
“The latest year in the submitted or applicable implementation plan
that contains an adequate or approved motor vehicle emissions
budget(s).”

Note that an MPO that has shortened its conformity timeframe does not
choose which of these three timeframes it prefers to examine in the
conformity determination; it must examine the longest of them.  Such an
MPO would have to determine which timeframe is the longest for each
conformity determination, as the longest timeframe could change from
determination to determination, because for example new budgets have
been established or new regionally significant projects have been added
to the TIP since the previous conformity determination.

2.	Rationale and Response to Comments

These provisions to allow MPOs to shorten the timeframe covered by a
conformity determination are necessary to make the conformity regulation
consistent with the law.  In SAFETEA-LU, Congress amended the Clean Air
Act by adding section 176(c)(7), which allows MPOs to elect to shorten
the timeframe of conformity determinations.  EPA’s regulation at
§93.106(d)(1) requires that conformity determinations cover the
timeframe of the transportation plan unless the MPO makes an election to
shorten the timeframe.  The Clean Air Act section 176(c)(7)(A)
specifically states, “Each conformity determination… shall require a
demonstration of conformity for the period ending on either the final
year of the transportation plan, or at the election of the metropolitan
planning organization, …” a shorter timeframe.

EPA’s regulation at §93.106(d)(2)(i), which requires that a shortened
timeframe must cover the longest of the three periods specified, also
comes directly from the Clean Air Act. Specifically, section
176(c)(7)(A) states that a shortened conformity determination must
cover:

the longest of the following periods:

(i) The first 10-year period of any such transportation plan.

(ii)  The latest year in the implementation plan applicable to the area
that contains a motor vehicle emissions budget.

(iii) The year after the completion date of a regionally significant
project if the project is included in the transportation improvement
program or the project requires approval before the subsequent
conformity determination.

	EPA received several comments in support of the flexibility to shorten
the timeframe of the conformity determination.

	EPA is clarifying the language in §93.106(d)(2)(i) and
§93.106(d)(2)(i)(B) from the proposal based on the suggestion of three
commenters, although the meaning is the same as in the proposal.  As a
result, the final rule clarifies that the shortened timeframe must
extend through the latest year of the three periods.  EPA modified some
of the commenters’ suggested language to be consistent with the
statute.

	The same commenters also suggested we change the language in
§93.106(d)(2)(i)(B) to refer to the latest year for which a budget is
established, rather than the latest year that “contains” a budget.
EPA has taken this suggestion because this language likewise improves
clarity.

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

1.	Description of Final Rule

In areas that have an adequate or approved maintenance plan under Clean
Air Act section 175A(b), transportation plan and TIP conformity
determinations must cover the timeframe of the transportation plan
unless an MPO elects to shorten the timeframe.  This requirement is
found in §93.106(d)(1).  Section 175A(b) of the Clean Air Act is the
provision that describes the submission of a maintenance plan that
covers the second ten years of the maintenance period.  If an MPO with
an adequate or approved second maintenance plan elects to shorten the
timeframe, transportation plan and TIP conformity determinations would
cover the period of time through the end of the maintenance period, that
is, the period of time covered through the second maintenance plan.
This period of time is in contrast to the longest of the three periods
discussed in Section VI.B. for areas that do not have an adequate or
approved second maintenance plan.  The regulatory language for
shortening the timeframe in areas with second maintenance plans is found
in §93.106(d)(3).

2.	Rationale and Response to Comments

This rule provision for shortening the conformity timeframe in
metropolitan areas with an adequate or approved second maintenance plan
results directly from the Clean Air Act as amended by SAFETEA-LU.  Clean
Air Act section 176(c)(7)(C) specifically says that in areas with a
second maintenance plan, a shortened conformity timeframe is “required
to extend only through the last year of the implementation plan required
under section 175(A)(b)” [sic] rather than the longest of the three
periods established in Clean Air Act section 176(c)(7)(A).

Several commenters specifically noted their support for this provision.
However, one commenter suggested that the proposed language for
§93.106(d)(2)(i) should be revised to be consistent with the fact that
the Clean Air Act as amended by SAFETEA-LU allows areas with adequate or
approved second 10-year maintenance plans to determine conformity
through only the last year of the maintenance plan.  EPA’s proposed
regulation was consistent with the statutory provision for areas with
adequate or approved second maintenance plans, and the final rule is as
well.  EPA believes this commenter may have misread the organization of
this section, as we covered areas without second maintenance plans in
§93.106(d)(2), and areas with second maintenance plans in
§93.106(d)(3).

D.	Process for Elections

1.	Description of Final Rule

First, before an MPO elects to shorten the conformity timeframe, it has
to consult with state and local air quality planning agencies, solicit
public comment, and consider those comments.  These requirements are
found in §93.106(d)(2).  Consultation with the state and local air
agencies would occur early in the decision-making process.

Second, once an MPO makes an election to shorten the period of time
addressed in its transportation plan/TIP conformity determinations, the
election remains in effect until the MPO elects otherwise.  An MPO would
make its election only once for a pollutant or pollutants and any
relevant precursors, unless it chooses to elect otherwise in the future.
 An MPO that has elected to shorten the timeframe of conformity
determinations that wants to revert to analyzing the full timeframe of
the transportation plan must consult with the state and local air
quality agencies, solicit public comments, and consider such comments
before doing so.  These provisions are found in §93.106(d)(4).

EPA believes that consultation with the state and local air quality
agencies on shortening the timeframe would typically occur in the
context of the normal interagency consultation process.  EPA believes
that for this consultation to be meaningful, it needs to occur at an
early stage in the decision-making process.  Therefore, consultation
should occur when the MPO begins to consider shortening the timeframe.
For example, it may be appropriate to discuss an election to shorten the
conformity timeframe in the preliminary stages of developing the
regional emissions analysis.

MPOs should follow their normal process for public participation
regarding conformity actions when electing to shorten their conformity
timeframe.  MPOs are not required to revise their public
participation/involvement procedures required by 23 U.S.C. 134(i)(5) to
address public consultation on shortening the area’s conformity
timeframe.

	MPOs are encouraged to make their elections prior to the start of the
public comment period for their next conformity determination.  Making
the election prior to the start of the public comment period for the
next conformity determination ensures that the public will understand
that future conformity determinations will address a shorter period of
time.  Doing so will also allow the MPO to develop its next conformity
determination in a more efficient manner and avoid running analyses for
additional years, as described in the following paragraph.

	However, there may be instances when an MPO will want to take public
comments on the election to shorten the conformity timeframe at the same
time that it is taking public comment on a conformity determination.  In
those cases, the conformity information presented to the public should
include both a regional emissions analysis reflecting the election of a
shorter timeframe and a regional emissions analysis that reflects the
full length of the transportation plan.  EPA recommends that both a
shortened and a full-length analysis be included so that the MPO can
complete its conformity determination according to its desired schedule,
even if it receives negative public comment about shortening the
timeframe and decides not to do so.

2.	Rationale and Response to Comments

General process.  Clean Air Act section 176(c)(7)(A) and (C) are the
sections of the statute that allow elections to shorten the conformity
timeframe.  Both of these sections allow such elections to be made only
“after consultation with the air pollution control agency and
solicitation of public comments and consideration of such comments.”
The Clean Air Act refers only to consultation with the air agency or
agencies and does not require their concurrence.

A definition of “air pollution control agency” has been added at
Clean Air Act section 176(c)(7)(E), which EPA interprets to mean the
relevant state and local air quality agencies that have regularly
participated in the conformity consultation process, as discussed in the
preamble to the May 2, 2007, proposed rule (72 FR 24480).

EPA’s regulation states that once an election to shorten the timeframe
is made, it would remain in effect until the MPO elects otherwise,
because that statement is specifically included in the statute.  Clean
Air Act section 176(c)(7)(D) states, “Any election by a metropolitan
planning organization under this paragraph shall continue to be in
effect until the metropolitan planning organization elects otherwise.”

Changing previous elections.  EPA requested comment on two options for
the process that MPOs must follow if they have shortened the conformity
timeframe and want to revert back to determining conformity for the full
length of the transportation plan.  Option A would have required MPOs to
consult with state and local air agencies and solicit and consider
public comment before reverting back to determining conformity for the
full length of the transportation plan; Option B would have allowed MPOs
to revert to the full timeframe without additional consultation or
public comment.

EPA is finalizing Option A.  As explained in the proposal, Clean Air Act
section 176(c)(7)(D) states that a shortened timeframe remains in effect
unless an MPO “elects otherwise.”  An “election” to shorten the
timeframe under section 176(c)(7) requires consultation with the state
and local air quality agencies, solicitation of public comment and
consideration of any comments received.  EPA’s interpretation is that
an election to revert to determining conformity for the entire length of
the transportation plan is an election under this section and therefore
also includes consultation with the state and local air pollution
control agencies, solicitation of public comment, and consideration of
those comments.  Since the Clean Air Act uses the same term –
“election” – in both subsections, it is reasonable to conclude
that the same process should be followed for both actions.

	However, we expect the resource burden of this requirement to be
minimal.  MPOs can limit the additional burden of consultation with
state and local air agencies and solicitation and consideration of
public comment by using procedures developed to meet existing conformity
requirements.  Consultation with the state and local air quality
planning agencies must already occur on the conformity determination
within the interagency consultation process.  Similarly, the MPO must
already seek public comment on the conformity determination, according
to the requirements in 40 CFR 93.105(e).  By relying on these existing
consultation procedures, the MPO could avoid the additional resource
costs associated with running another interagency consultation process
or full public comment process for electing to revert to the full
conformity timeframe.

Two trade associations supported Option A, and stated that their members
appreciate the opportunity to comment on significant decisions made by
MPOs that have the potential to impact transportation projects or an
area’s ability to move forward with its transportation plans.  These
commenters thought that the public comment period should occur early in
the conformity process so that conformity timing would not be negatively
impacted.  EPA appreciates these comments and supports the ability of
the public to comment on decisions within the transportation conformity
process that affect them.

A couple of commenters supported Option B, allowing an MPO to revert to
a full-plan conformity timeframe without additional consultation or
solicitation of public comment.  Commenters opined that consultation and
public comment are already required by 40 CFR 93.105, and those
requirements already ensure that state and local air agencies will be
consulted before any decisions are made.  While MPOs can use these
existing consultation and public comment provisions when reverting to
the full transportation plan length timeframe, EPA is finalizing Option
A so that MPOs will specifically solicit comment on the length of the
conformity timeframe within these existing processes.

Other commenters offered an alternative option of using the established
interagency consultation process to decide if a new public comment
period should be required before an area elects to revert back to
determining conformity for the entire timeframe of the transportation
plan.  The commenters suggested that this option would allow areas the
flexibility to decide if a new public comment period is needed, while
minimizing resource costs.

EPA did not finalize these commenters’ suggestion because it would
have required MPOs to consult with a more extensive set of agencies to
return to the full conformity timeframe than required by the statute
when shortening the timeframe in the first place.  When an MPO elects to
shorten the timeframe, the Clean Air Act requires consultation with the
state and local air agencies.  Under the commenters’ suggestion,
before electing to revert to the full timeframe, MPOs would have to
consult not only with state and local air agencies, but also EPA, DOT,
and state and other local transportation agencies (e.g., transit
agencies), because the interagency consultation process includes all of
these agencies.  This additional consultation is beyond what is required
by this section of the statute.

 As stated above, the existing interagency consultation process can be
used to fulfill the requirement for consultation with state and local
air quality agencies, because the MPO will be meeting with or speaking
to representatives of these agencies in the context of the interagency
consultation process.  However, EPA believes that consulting with the
relevant air agencies within the existing interagency consultation
process is different, and less burdensome, than consulting with every
agency involved in the interagency process.  Second, the statute does
not separate the interagency consultation and public comment processes
as suggested by the commenters.  The Clean Air Act section 176(c)(7)
requires both consultation and public involvement whenever a timeframe
is shortened, rather than consultation without public involvement.
Rather than having agencies decide if the public would benefit by
commenting, EPA believes the better interpretation of Congress’ intent
is to offer the public the opportunity to comment in all cases.

	Placement in regulatory text.  EPA is placing the requirements for
state and local air quality agency consultation and public comment for
shortening the conformity timeframe in §93.106 because this type of
consultation would only occur when the MPO is considering electing to
shorten the timeframe.  Furthermore, placing these requirements in
§93.106, rather than in 40 CFR 93.105, assures that no states with
approved conformity SIPs have to amend them to add this provision.  (See
Section VII. for more information about the requirements for conformity
SIPs.)  EPA received no comments about this placement.  See the preamble
to the May 2, 2007, proposed rule (72 FR 24481) for EPA’s full
rationale.

E.	Isolated Rural Nonattainment and Maintenance Areas

1.	Description of Final Rule

Isolated rural nonattainment and maintenance areas do not have MPOs and
are not required to prepare transportation plans or TIPs (40 CFR
93.101).  Projects in these areas are generally included in the
long-range statewide transportation plan and the statewide TIP.
Isolated rural areas are not “donut areas.”

The final rule gives isolated rural nonattainment and maintenance areas
the flexibility to shorten the conformity timeframe in the same manner
as metropolitan areas.  The requirements for shortening the conformity
timeframe in isolated rural areas are identical to the requirements in
metropolitan areas, except the entity that would make the election to
shorten the timeframe in an isolated rural area is the state DOT, rather
than the MPO.  The rule accomplishes this result by including a sentence
in §93.109(l)(2)(i) that says, “When the requirements of §93.106(d)
apply to isolated rural areas, references to “MPO” should be taken
to mean the state department of transportation.”

2.	Rationale and Response to Comments

EPA believes it is appropriate to extend this flexibility to isolated
rural areas to be consistent with how the conformity rule has been
implemented in isolated rural areas.  The Clean Air Act amendment made
by SAFETEA-LU allowing areas to shorten their conformity timeframes does
not prohibit its use in isolated rural areas. In general, most aspects
of the conformity regulation apply consistently to metropolitan and
isolated rural areas.  Where there are differences, the differences have
given isolated rural areas additional flexibility.  See the preamble to
the May 2, 2007, proposed rule (72 FR 24482) for EPA’s full discussion
of why EPA concludes it is appropriate to give isolated rural areas the
flexibility to shorten their conformity timeframe.

Seven commenters supported allowing isolated rural areas to shorten the
timeframe of conformity determinations, and none opposed it.  Commenters
generally agreed with EPA’s rationale that Congress did not prohibit
extending the flexibility to isolated rural areas, and that these areas
are treated much like MPOs throughout the rest of the conformity rule.
One commenter noted that extending this flexibility to isolated rural
areas will have no impact on project-level requirements in these areas.

EPA proposed two options for the entity that would make the election in
isolated rural areas:  either the state DOT or the project sponsor, and
solicited input on whether there are any other alternatives.  Six
commenters supported the state DOT option, and two supported the project
sponsor option; no alternative entities were suggested.

EPA believes that assigning the ability to elect to shorten the
conformity timeframe to the state DOT makes the most sense.  First, the
state DOT prepares the statewide transportation plan and the statewide
TIP and therefore in this regard, the state DOT serves a function in an
isolated rural area that is similar to an MPO.  Two commenters that
supported the state DOT option cited this reason as well.  Also, the
state DOT may be better able to coordinate the consultation necessary to
make an election with the state and local air quality planning agencies
and with the public than any other entity in an isolated rural area.
One commenter noted that given the consultation and public participation
requirements associated with preparing transportation planning
documents, the state DOT would be in the best position to satisfy
similar requirements for electing to shorten the timeframe.

Though the state DOT is typically the project sponsor who prepares the
conformity determination, several commenters were concerned about the
possibility of there being more than one project sponsor in an area.
Commenters noted that there may be multiple small entity project
sponsors in an area, which could possibly lead to conflicts.  A couple
of commenters thought that the project sponsor option could result in
confusion, inconsistent decisions in a state, and unpredictability.

The two commenters that supported the project sponsor option thought
that project sponsors would be more closely attuned to local concerns.
However, these commenters recognized that if there were multiple project
sponsors, conflicts could arise, and recommended that in those cases,
the state DOT should have the ability to shorten the timeframe.  In
considering these comments, EPA solicited input from EPA and DOT field
offices, and concluded that in all recent cases, the state DOT is in
fact the project sponsor for all FHWA/FTA projects in isolated rural
areas.  These areas are different than donut areas where county agencies
sometimes are the project sponsor.

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

F.	Specific Analysis Requirements Under a Shortened Timeframe

1.	Description of Final Rule

EPA is including most of the necessary regulatory language for
shortening the conformity timeframe within §93.106, and is also
updating §§93.118 and 93.119.  Note that these provisions apply to
both metropolitan and isolated rural areas.

First, §93.106 is being renamed as “Content of transportation plans
and timeframe of conformity determination.”

Second, §93.106(a)(1) is being amended to update the horizon years that
apply when an area shortens the conformity timeframe.  (Section
93.106(a)(1) only applies to serious, severe or extreme ozone and
serious CO nonattainment areas with urbanized populations greater than
200,000.)

Third, EPA is updating §§93.118 and 93.119 to indicate that particular
years must be analyzed only if they are in the conformity timeframe and
to include the requirements for any needed informational analyses.

Areas that use the budget test.  In areas that have budgets that choose
to shorten the timeframe, the requirements for demonstrating consistency
with budgets, and analyzing specific years, are similar to requirements
that have existed, and still exist, for areas that determine conformity
for the full length of the transportation plan.  Under a shortened
timeframe, consistency with, and an analysis for, the attainment year is
necessary only if the attainment year is both within the timeframe of
the transportation plan and conformity determination.  In addition,
under a shortened timeframe, instead of analyzing the last year of the
transportation plan for the conformity determination, the analysis must
be done for the last year of the shortened timeframe.

In areas that do not have an adequate or approved second maintenance
plan budget, the conformity determination must also be accompanied by a
regional emissions analysis for the last year of the transportation
plan, as well as for any year where the budgets were exceeded in a
previous regional emissions analysis if that year is later than the
shortened conformity timeframe.  These regional emissions analyses must
be done in a manner consistent with how the budget test is performed and
all relevant requirements of the transportation conformity regulation
(e.g., 40 CFR 93.110, 93.111, and 93.122).  However, these analyses
would be for informational purposes only, and emissions would not have
to meet the budgets in these years.  Documentation of any informational
analysis should clearly state that its purpose is informational only,
and that conformity is not required to be demonstrated for the last year
of the transportation plan or any year where the budgets were exceeded
in a previous regional emissions analysis if that year is later than the
shortened conformity timeframe.  There is no similar requirement for
information-only analyses in areas with an adequate or approved second
maintenance plan budget, for the reasons described below.

Areas that use the interim emissions tests.  In areas that do not have
budgets and use the interim emissions tests, the requirements for
analysis years in areas that shorten their conformity timeframe are
similar to the requirements in §93.119 that have applied and still
apply under a full transportation plan-length conformity determination.
Under a shortened timeframe, instead of analyzing the last year of the
transportation plan, the analysis would be done for the last year of the
shortened timeframe.

	The conformity determination must be accompanied by a regional
emissions analysis for the last year of the transportation plan in areas
that use the interim emissions tests.  This regional emissions analysis
would be for informational purposes only, and must be done in a manner
consistent with all relevant requirements of the transportation
conformity regulation (e.g., 40 CFR 93.110, 93.111, and 93.122).  Note
that there is no requirement for an informational regional emissions
analysis for years where the interim tests were not met in a previous
regional analysis, as there is for areas that use the budget test that
do not have adequate or approved second maintenance plans.

	EPA proposed three options for the informational analysis for the last
year of the transportation plan in areas that use the interim emissions
tests:  to compare estimated emissions to the interim emissions test(s)
used in the conformity determination (Option X), to compare estimated
emissions to either interim emissions test (Option Y), or just to
estimate emissions without comparing them to either test (Option Z).
EPA is finalizing Option Z.

	While the final rule requires only an estimate of regional emissions
for the transportation system that would exist in the last year of the
transportation plan, EPA encourages MPOs and state DOTs to present this
informational analysis in context so that it is truly informative for
members of the public or state and local air agencies who are reviewing
it.  One possible way of doing so is to present a summary table of all
of the years for which an analysis was run, including both the years
analyzed in the conformity determination and the last year analyzed for
informational purposes only.  Another possible method would be to
present a comparison with the emissions level from the baseline year
(e.g., 2002), as is done for the baseline year test under 40 CFR 93.119.
 Furthermore, it would also be acceptable for an area to complete the
build/no-build test as well, if desired.  Documentation of any
informational analysis should clearly state that its purpose is
informational only, and that conformity is not required to be
demonstrated for the last year of the transportation plan.

2.	Rationale and Response to Comments

	General.  EPA has made these changes to the conformity regulation
because SAFETEA-LU has amended the Clean Air Act to allow MPOs to
shorten their conformity timeframes.  EPA is implementing the specific
requirements of the new Clean Air Act provision in today’s regulatory
changes.  These changes for required analysis years for conformity
determinations with shortened timeframes are generally consistent with
what has been current practice when conformity is determined for the
full length of the transportation plan.

Given that the statute did not specify the years that must be analyzed
in a conformity determination with a shortened timeframe, EPA reasonably
concluded that the existing conformity requirements should apply.
Therefore, in areas that use the budget test, a shortened conformity
determination would have to include the attainment year if it is in the
timeframe of the conformity determination, similar to the existing
requirement to include the attainment year if it is in the timeframe of
the transportation plan.  In areas that use the interim emissions test,
a shortened conformity determination would include an analysis year no
more than five years into the future, just as full-length conformity
determinations do.

In addition, regardless of the test used under a shortened timeframe,
the last year of the conformity determination would need to be analyzed.
 This requirement is similar to the existing one to analyze the last
year of the transportation plan.  Likewise, under a shortened timeframe,
analysis years would be no more than ten years apart, just as under a
full-length conformity determination.  No comments were received on
these general provisions.

Areas that use the budget test. If the conformity timeframe is shortened
in an area that does not have an adequate or approved second maintenance
plan, EPA’s regulation requires that the conformity determination be
accompanied by an informational analysis.  The rule language for the
regional emissions analysis for the last year of the transportation
plan, and for any year where the budgets were exceeded in a previous
regional emissions analysis if that year is later than the shortened
conformity timeframe, is also based in the new statutory language.
Clean Air Act section 176(c)(7)(B) requires that the conformity
determination “be accompanied by a regional emissions analysis” for
these years.  Absent a definition for “regional emissions analysis”
in the statute, EPA assumes that the phrase has its usual meaning in the
context of transportation conformity.  Therefore, these analyses need to
be done in a manner consistent with all the general requirements of the
conformity regulations for such analyses.

This same statutory language is the reason that these analyses do not
need to meet the required conformity tests.  The statutory language
makes it clear that these emissions analyses only “accompany” the
conformity determination, and thus are not part of the conformity
determination.  Therefore, EPA concludes that conformity need not be
demonstrated with respect to these analyses.

Areas that use the interim emissions tests.  In areas that use the
interim emissions tests, an informational analysis is required only for
the last year of the transportation plan.  In contrast, areas that use
budgets also must do an informational analysis for any years that
exceeded the budgets in a prior analysis.  Such years would be years
that extended beyond the shortened timeframe of prior conformity
determinations, which were analyzed for informational purposes only.
This result is because Clean Air Act section 176(c)(7)(B) states that
these information-only regional emissions analyses are to be done “for
the last year of the transportation plan and for any year shown to
exceed emissions budgets by a prior analysis, if such year extends
beyond” the end of the shortened timeframe.  Areas subject to the
interim emissions tests for a given pollutant or precursor do not have
budgets for that pollutant or precursor.  Therefore, there will not be
any years for which a prior analysis shows the budget will be exceeded,
and as such there is no statutory requirement for these areas to perform
an informational regional emissions analysis for any year other than the
last year of the transportation plan.

EPA requested comment on three options for what an information-only
regional emissions analysis would consist of in an area that uses the
interim emissions test.  Option X would have required that emissions be
compared to the same interim emissions test (i.e., build/no-build and/or
the baseline year test(s)) as is used in the conformity determination.
Option Y would have required that emissions be compared to either
interim emissions test.  Option Z, which we finalized, requires simply
the estimate of emissions in the last year of the transportation plan
with no comparison to either interim emissions test.

The statutory language is ambiguous regarding the information-only
regional emissions analysis prior to the establishment of SIP budgets.
Section 176(c)(7)(B) states that the regional emissions analysis that
accompanies the conformity determination must be performed for the last
year of the transportation plan, but does not specify that the interim
emissions tests be conducted.  The Congressional report language for
this section states, “Generating this information will be helpful in
ensuring that conformity is maintained,” but does not include any
direction on how this goal should be met in those areas that use the
interim emissions tests.

Five commenters provided opinions on these options.  One commenter
preferred Option X (i.e., to use the same test(s) as in the conformity
determination) because it involves use of similar information to that
presented elsewhere in the determination.  This commenter thought that
presenting the estimate of emissions in context of the interim emissions
tests is helpful in informing state and local agencies and the public
about future emissions trends, and is consistent with the intent of
Congress.

The remaining four commenters preferred Option Z.  Some of these
commenters thought that comparisons to the interim emissions tests could
be confusing to stakeholders if a test is not met for the informational
analysis.  One of these commenters thought that EPA should allow for the
presentation of these results at the discretion of the MPO and state DOT
after interagency consultation.  This commenter thought that states and
MPOs understand the local context for transportation conformity and are
best suited for determining what information should be presented for the
last year of the transportation plan under a shortened timeframe.

As described above, EPA is finalizing Option Z to be consistent with the
statute, which does not require that the interim emissions tests be
performed for informational purposes.  Under the final rule, MPOs and
state DOTs have the discretion in presenting the results of the
informational analysis for the last year of the transportation plan, and
EPA encourages them to provide useful information to other involved
agencies and the public.  See Section F.1. above for additional
suggestions on how to present such analyses to the public.

Areas with second maintenance plans that shorten their conformity
timeframe.  No information-only analyses is required in areas with an
adequate or approved second maintenance plan, given Clean Air Act
section 176(c)(7)(C).  The statute labels this section, which applies to
areas that have an adequate or approved second maintenance plan, as
“Exception.”  EPA interprets section 176(c)(7)(C) to mean that areas
with adequate or approved second maintenance plans that shorten their
conformity timeframe do not have to comply with the requirements of
Clean Air Act section 176(c)(7)(A) or (B), and section 176(c)(7)(C)
itself does not require any informational analyses.  Therefore, areas
with a second maintenance plan that shorten their conformity timeframe
do not have to perform a regional emissions analysis for the last year
of their transportation plans, or for a year shown to exceed budgets by
a prior analysis, as required by Clean Air Act section 176(c)(7)(B) for
other areas that have shortened their timeframe.  EPA received no
comments on this particular point.

VII.	Conformity SIPs

A.	Description of Final Rule

EPA is changing 40 CFR 51.390 to streamline the requirements for state
conformity SIPs.  A conformity SIP is different from a control strategy
SIP or maintenance plan, as a conformity SIP only includes state
conformity procedures and not motor vehicle emissions budgets or air
quality demonstrations.

EPA is finalizing requirements for states to submit conformity SIPs that
address only the following sections of the pre-existing federal rule.
These three sections that need to be tailored to a state’s individual
circumstances:

40 CFR 93.105, which addresses consultation procedures;

40 CFR 93.122(a)(4)(ii), which states that conformity SIPs must require
that written commitments to control measures be obtained prior to a
conformity determination if the control measures are not included in an
MPO’s transportation plan and TIP, and that such commitments be
fulfilled; and

40 CFR 93.125(c), which states that conformity SIPs must require that
written commitments to mitigation measures be obtained prior to a
project-level conformity determination, and that project sponsors comply
with such commitments.

Prior to SAFETEA-LU, states were required to address these provisions as
well as all other federal conformity rule provisions in their conformity
SIPs.  The rule had previously required states’ conformity SIPs to
include most of the sections of the federal rule verbatim.

In addition, EPA is also deleting the requirement for states to submit
conformity SIPs to DOT.  States must continue to submit conformity SIPs
to EPA.  EPA is also reorganizing the conformity SIP regulatory language
to improve clarity and readability.  The regulatory language in §51.390
is re-ordered to more naturally fall into three topics: purpose and
applicability, conformity implementation plan content, and timing and
approvals.  The language retains existing requirements with appropriate
modifications based on the new Clean Air Act amendment from SAFETEA-LU.

B.	Rationale and Response to Comments

EPA is primarily changing §51.390 to make the transportation conformity
regulation consistent with the law, which has been in effect since
August 10, 2005.  In SAFETEA-LU, Congress amended the Clean Air Act so
that states are no longer required to adopt much of the federal
transportation conformity rule into their SIPs.  Instead, Clean Air Act
section 176(c)(4)(e) now requires states to include in their conformity
SIPs:

criteria and procedures for consultation required by subparagraph
(D)(i), and enforcement and enforceability (pursuant to section
93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations)
in accordance with the Administrator’s criteria and procedures for
consultation, enforcement, and enforceability.

Subparagraph (D)(i) in Clean Air Act section 176(c)(4) requires EPA to
write regulations that address consultation procedures to be undertaken
by MPOs and DOT with state and local air quality agencies and state DOTs
before making conformity determinations.  EPA’s regulations governing
consultation are found at 40 CFR 93.105.  Therefore, in effect the
statute now requires states to address and tailor only the three
sections of the conformity rule noted above in their conformity SIPs.

EPA believes that the new conformity SIP requirements will reduce the
administrative burden for state and local agencies significantly,
because the new requirements will result in fewer required conformity
SIP revisions in most areas.  Four commenters supported these changes.
Three commenters specifically agreed that these changes streamline the
conformity SIP process and preclude the need for a state to update its
conformity SIP each time the federal rule is revised.  These commenters
requested that EPA urge states to include only the three required
sections in their conformity SIPs to minimize the possibility of having
to revise the SIP when the federal rule is updated.  EPA agrees with
this point.  However, the fourth commenter also requested that states
still be able to incorporate the rest of the transportation conformity
rule by reference. This option is further discussed in Section D.2
below.

EPA is removing the requirement for states to submit conformity SIPs to
DOT to be consistent with SAFETEA-LU's changes.  In revising the Clean
Air Act's previous conformity SIP requirements, Congress did not retain
the previous requirement that "each State shall submit to the
Administrator and the Secretary of Transportation...a revision to its
implementation plan..."  The new statutory language in Clean Air Act
section 176(c)(4)(E) does not include this previous requirement, and
therefore, we are removing this requirement to reduce state and local
air agency processing of their conformity SIPs.  However, EPA does not
believe that this proposal will substantively change DOT's involvement
in conformity SIP development.  This does not change the existing
conformity rule's requirement that EPA provide DOT with a 30-day comment
period on conformity SIP revisions.

The re-organizational changes to §51.390 are for clarity and
readability and not related to changes in the law.  EPA is making these
changes to make this section more user-friendly, and the changes do not
affect the substance of the pre-existing regulatory requirements.

C.	How Does the Final Rule Impact States?

1.	Areas That Have Never Submitted a Conformity SIP

States that have never submitted a conformity SIP are required to
address only the three provisions noted above in their conformity SIPs
according to any existing conformity SIP deadline (see D. of this
section below).

2.	Areas That Have Submitted a Conformity SIP That Was Never Approved

In some cases, states have submitted conformity SIPs to EPA for
approval, but EPA has not yet acted on them.  These states can write
their EPA Regional Office and request that EPA approve only the three
provisions that are required to be included in their SIPs and that EPA
take no action on the remainder of the submission.  States can also
leave the full conformity SIP pending before EPA for rulemaking action.
However, if EPA approves the full SIP, states could not apply any
subsequent changes that EPA makes to the federal rule without first
revising their state conformity SIP and obtaining EPA’s approval.

3.	Areas With Approved Conformity SIPs

States with EPA-approved conformity SIPs that decide to eliminate the
provisions that are no longer mandatory would need to revise the SIP to
eliminate those provisions.  EPA would have to approve the changes to a
state’s conformity SIP through the Federal Register rulemaking
process.  Such a SIP revision should not be controversial because the
provisions are no longer required by the Clean Air Act as amended by
SAFETEA-LU.  In addition, their elimination from a state’s conformity
SIP would not change conformity’s implementation in practice because
the federal conformity rule applies for any provision not addressed in a
state’s conformity SIP.  States are encouraged to work with their EPA
Regional Office as early in the process as possible to ensure the SIP
submission meets all requirements and is fully approvable.

4.	Areas That Submit a Partial Conformity SIP

A state may choose to submit a conformity SIP that addresses only one or
two of the three required sections of the federal rule.  In this
situation, EPA could approve the submitted section(s) if it sufficiently
addresses the requirement it is intended to fulfill.  However, the Clean
Air Act as amended by SAFETEA-LU requires states to address all three
sections in their conformity SIP, so a state that addresses only one or
two of the requirements would still have an outstanding requirement.

D.	When Are Conformity SIPs Due?

SAFETEA-LU did not create any new deadlines for conformity SIPs.  Any
nonattainment or maintenance area that has missed earlier deadlines to
submit conformity SIP revisions (e.g., after previous conformity
rulemakings, or new nonattainment designations) continues to be subject
to these previous deadlines, but only in regard to the three provisions
now required by the Clean Air Act. Two scenarios are described below.

1.	Areas With Conformity SIPs That Address Only the Three Required
Provisions

Once a state has an approved conformity SIP that addresses only the
three sections that the Clean Air Act now requires, the state would need
to revise its conformity SIP only if EPA revises one of these sections
of the conformity rule, or the state chooses to revise one of these
three provisions.  Any future changes to the federal conformity rules
beyond these three provisions would apply in any state that has only
these three provisions in its approved conformity SIP, and these changes
would not need to be adopted into the state’s SIP.

2.	Areas That Choose to Either Retain or Submit Additional Sections of
the Conformity Rule

A state with a previously approved conformity SIP may decide to retain
all or some of the federal rule in its SIP or a state without an
approved conformity SIP could choose to submit for EPA approval all or
some of the other sections of the federal rule.  As noted above, one of
the commenters expressly asked that EPA retain this option presumably so
its state could avoid revising its conformity SIP.  In such a case, the
state should be aware that the conformity determinations in the state
continue to be governed by the state’s approved conformity SIP.  Such
a state would need to revise its conformity SIP when EPA makes changes
to the federal rule in order to have those changes apply in the state.
As stated earlier, EPA strongly encourages states to only include the
three required provisions in a conformity SIP to take advantage of the
streamlining flexibilities provided for by the Clean Air Act, as amended
by SAFETEA-LU.  On [date], EPA issued guidance on conformity SIPs and
the guidance is available at:    HYPERLINK
"http://www.epa.gov/otaq/stateresources/transconf/policy.htm"
http://www.epa.gov/otaq/stateresources/transconf/policy.htm  .  State
and local agencies that need to prepare a conformity SIP should review
this guidance and consult with the appropriate EPA Regional Office.

VIII.	Transportation Control Measure Substitutions and Additions

SAFETEA-LU section 6011(d) amended the Clean Air Act by adding a new
section 176(c)(8) that establishes specific criteria and procedures for
replacing TCMs in an approved SIP with new TCMs and adding TCMs to an
approved SIP.

EPA is revising the definition of a TCM in §93.101 to clarify that TCMs
as defined for conformity purposes also include any TCMs that are
incorporated into the SIP through this new TCM substitution and addition
process.  However, EPA has determined that no additional revision of the
transportation conformity regulations is necessary to implement the TCM
substitution and addition provision.  EPA did not receive any comments
on this portion of the proposed rulemaking.

EPA concluded no implementing regulations are necessary for the reasons
explained in the preamble to the May 2, 2007 proposed rule (72 FR
24485-6).

EPA is updating our previous guidance on TCM substitutions and
additions.  The guidance will be available on EPA’s Website at:
http://www.epa.gov/otaq/stateresources/transconf/policy.htm.  This
guidance is consistent with the TCM substitution and additions portion
(Section 5) of the EPA-DOT February 2006 Interim Guidance for
implementing SAFETEA-LU.  State and local agencies considering TCM
substitutions or additions should review this guidance and consult with
the appropriate EPA Regional Office.

Clean Air Act section 176(c)(8) requires that the EPA Administrator
consult and concur on TCM substitutions and additions.  However, as has
been done with most other responsibilities related to the approval of
SIP revisions, the Administrator has delegated this authority to the
Regional Administrators.  On September 29, 2006, the EPA Administrator
signed a delegation of authority (Delegation of Authority 7-158:
Transportation Control Measure Substitutions and Additions) providing
EPA Regional Administrators with the authority to consult and concur on
TCM substitutions and additions.  The delegation of authority allows the
Regional Administrators to further delegate these responsibilities to
the regional air division directors, but no further.

IX.	Categorical Hot-spot Findings for Projects in Carbon Monoxide
Nonattainment and Maintenance Areas

A.	Background

	Since the initial conformity rule was promulgated in 1993, a hot-spot
analysis has been required for all project-level conformity
determinations in CO nonattainment and maintenance areas (40 CFR 93.116
and 93.123(a)).  A CO hot-spot analysis is an estimation of likely
future localized pollutant concentrations and a comparison of those
concentrations to the CO national ambient air quality standards
(“standards”) (40 CFR 93.101).  A hot-spot analysis assesses air
quality impacts on a scale smaller than the entire nonattainment or
maintenance area, such as a congested roadway intersection.

	A CO hot-spot analysis must show that a non-exempt FHWA/FTA project
does not cause any new violations of the CO standards or increase the
frequency or severity of existing violations (40 CFR 93.116(a)).  Until
a CO attainment demonstration or maintenance plan is approved,
non-exempt FHWA/FTA projects must also eliminate or reduce the severity
and number of localized CO violations in the area substantially affected
by the project (40 CFR 93.116(b).  These existing requirements remain
unchanged by today’s final rule.

The type of CO hot-spot analysis varies depending on the type of project
involved.  Section 93.123(a)(1) requires quantitative hot-spot analyses
for projects of most concern; section 93.123(a)(2) requires either a
quantitative or qualitative hot-spot analysis for all other projects.
These existing requirements also remain unchanged by today’s final
rule.

Hot-spot analyses are also required for certain projects in PM2.5 and
PM10 nonattainment and maintenance areas.  The conformity rule allows
DOT, in consultation with EPA, to make a “categorical hot-spot
finding” in PM2.5 and PM10 nonattainment and maintenance areas if
there is appropriate modeling that shows that a particular category of
highway or transit projects will meet applicable Clean Air Act
conformity requirements without further analysis (40 CFR 93.123(b)(3)).
If DOT makes such a finding, then no further hot-spot analysis to meet
40 CFR 93.116(a) is needed for any project that fits the category
addressed by the finding.  A project sponsor would simply reference a
categorical hot-spot finding in the project-level conformity
determination to meet hot-spot analysis requirements.  See EPA’s March
10, 2006, final rule for further information (71 FR 12502-12506) on
categorical hot-spot findings in PM2.5 or PM10 areas.

B.	Description of Final Rule

EPA is extending the categorical hot-spot finding provision that applies
in PM areas to CO nonattainment and maintenance areas in today’s final
rule.  This provision allows DOT, in consultation with EPA, to make
categorical hot-spot findings for appropriate cases in CO nonattainment
and maintenance areas if appropriate modeling shows that a type of
highway or transit project does not cause or contribute to a new or
worsened local air quality violation of the CO standards, as required
under 40 CFR 93.116(a).  The regulatory text for this provision is found
in §93.123(a)(3).

Any DOT categorical hot-spot finding would have to be supported by a
credible quantitative modeling demonstration showing that all potential
projects in a category satisfy statutory requirements without further
hot-spot analysis.  Such modeling would need to be derived in
consultation with EPA, and consistent with EPA’s existing CO
quantitative hot-spot modeling requirements, as described in 40 CFR
93.123(a), and approved emissions model requirements in 40 CFR 93.111.
Modeling used to support a categorical hot-spot finding could consider
the emissions produced from a category of projects based on potential
project sizes, configurations, and levels of service.  Modeling could
also consider the emissions produced by a category of projects and the
resulting impact on air quality under different circumstances.

The new provision does not affect the requirement for conformity
determinations to be completed for all non-exempt projects in CO areas.
The modeling on which a categorical finding is based would serve to
fulfill the hot-spot analysis requirements for qualifying projects.  The
modeled scenarios used by DOT to make categorical hot-spot findings
would be derived through consultation and participation by EPA.

Existing interagency consultation procedures for project-level
conformity determinations also must be followed (40 CFR 93.105).  Any
project-level conformity determination that relies on a categorical
hot-spot finding is also still subject to existing public involvement
requirements, during which commenters could address all appropriate
issues relating to the categorical findings used in the conformity
determination.  See D. of this section for further information on how
EPA and DOT will implement this new provision.

C.	Rationale and Response to Comments

	EPA believes it is both appropriate and in compliance with the Clean
Air Act for DOT to be able to make categorical hot-spot findings where
modeling shows that such projects will not cause or contribute to new or
worsened air quality violations.  As long as modeling shows that all
potential projects in a category meet the current conformity rule’s
hot-spot requirements (40 CFR 93.116(a)) – either through an analysis
of a category of projects or a hot-spot analysis for a single project
– then certain Clean Air Act conformity requirements are met.

	Clean Air Act section 176(c)(1)(B) is the statutory criterion that must
be met by all projects in CO nonattainment and maintenance areas that
are subject to transportation conformity.  Section 176(c)(1)(B) states
that federally-supported transportation projects must not “cause or
contribute to any new violation of any standard in any area; increase
the frequency or severity of any existing violation of any standard in
any area; or delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area.”

	EPA has not amended the existing CO hot-spot requirements in 40 CFR
93.116(a) that ensure areas meet Clean Air Act section 176(c)(1)(B)
requirements.  Today’s provision for DOT to make categorical hot-spot
findings simply allows future information to be taken into account in an
expedited manner, so that further CO hot-spot analyses are not performed
on an individual basis for projects where it is determined to be
unnecessary to meet certain statutory requirements.  Making hot-spot
findings for certain projects on a category basis may reduce the
resource burden for state, regional and local agencies, and provide
greater certainty and stability to the transportation planning process,
while still ensuring that all projects meet Clean Air Act requirements.

	As noted above, CO categorical hot-spot findings under today’s final
rule could not be used to meet an additional hot-spot requirement for CO
areas without approved attainment demonstrations or maintenance plans.
Clean Air Act section 176(c)(3)(B)(ii) requires projects in these CO
areas to also “eliminate or reduce the severity and number of
violations of the carbon monoxide standards in the area substantially
affected by the project.”  This criterion is stipulated by 40 CFR
93.109(f)(1) and 93.116(b) for  FHWA/FTA projects in these CO areas.
EPA believes that this criterion is more appropriately met by evaluating
the unique circumstances of an individual project, rather than based on
a broader analysis of a category of projects.  Since most CO areas
already have approved attainment demonstrations or maintenance plans,
there should be limited practical impact of this aspect of today’s
proposal.

Six commenters supported this provision.  These commenters agreed that
allowing DOT to make categorical hot-spot findings, in consultation with
EPA, provides an opportunity to streamline hot-spot analyses in all CO
areas for certain projects.

Additionally, commenters thought these categorical hot-spot findings
would be consistent with the practice in many states already, and would
reduce resource burdens while still ensuring that projects meet Clean
Air Act requirements.

Some commenters thought that allowing DOT to make categorical hot-spot
findings in CO areas would offer flexibility in satisfying the intent of
the Clean Air Act.  A commenter recognized that categorical hot-spot
findings would have to be supported by credible quantitative modeling,
and the scenarios modeled by DOT to make categorical findings would be
derived through consultation and participation by EPA.  EPA notes that
the commenter’s understanding is correct; see Section IX.D. below for
further description of how modeling would be developed.

While six commenters supported allowing DOT to make categorical hot-spot
findings for projects in CO areas, one commenter was concerned that the
provision to allow US DOT to make categorical hot-spot findings would be
a requirement, rather than an option.  This provision is an optional
flexibility and not a requirement.  Once DOT has made a finding for a
category of projects, a sponsor of a project in that category can choose
whether to rely on DOT’s modeling, or do its own project-level
analysis.  In other words, a project sponsor can always decide to do its
own project-level analysis, even for a project that belongs to a
category that DOT has already analyzed.

This same commenter thought that this provision is unnecessary.  The
commenter thought that the similar provision that applies in PM areas
was created because of uncertainties regarding PM and because
interagency consultation is needed to determine which projects are
“projects of air quality concern” and what constitutes a
“significant number of diesel vehicles.”  This commenter also opined
that the PM provision for categorical hot-spot analyses was developed
because there are not acceptable modeling tools for PM2.5 or PM10.  In
contrast, the commenter explained that the parameters used to identify
the need for a CO hot-spot analysis are clearly stated under
§93.123(a), and the technology for CO hot-spot analyses is accepted by
EPA and FHWA.

EPA disagrees with the commenter and believes it is useful to have a
provision for categorical hot-spot analyses in CO areas.  This provision
will be useful because all non-exempt projects in CO areas that belong
to a category for which DOT has made a hot-spot finding will have a
hot-spot analysis available for use in future conformity determinations.
 As noted above, project sponsors have discretion on whether they want
to model each project even if DOT has already made a categorical
hot-spot finding for projects of that type.  Furthermore, the fact that
CO hot-spot modeling tools currently exist is another reason that it is
worthwhile to offer this provision.

This same commenter also states that interagency consultation on CO
analyses simply adds a layer of costly and inefficient bureaucracy that
is unnecessary to complete the analysis.  EPA disagrees with the
commenter on this point as well.  No additional layer of bureaucracy
will be added to project-level conformity determinations in CO areas as
a result of this provision.  EPA and DOT’s coordination on modeling
for categorical hot-spot findings will occur separately from any
particular project’s conformity determination.

D.	General Implementation for Categorical Hot-spot Findings

	EPA and DOT will implement the CO categorical hot-spot finding
provision similar to the implementation of PM2.5 and PM10 categorical
hot-spot findings, as described in the March 10, 2006, final rule.  A
project-level conformity determination continues to be required for all
non-exempt FHWA/FTA projects in CO areas.  Modeling used to support a
categorical hot-spot finding would be based on appropriate motor vehicle
emissions factor models, dispersion models, and EPA’s existing
requirements for quantitative CO hot-spot modeling as specified in 40
CFR 93.123(a)(1) (40 CFR part 51, Appendix W (Guideline on Air Quality
Models)).  Categorical hot-spot findings and modeling to support such
findings would primarily involve EPA and DOT headquarters offices rather
than field offices.  Such coordination at the headquarters level will
ensure national consistency in applying §93.123(a)(3) and (b)(3).

	In the March 2006 final rule (71 FR 12505), EPA and DOT described the
general process for categorical hot-spot findings to be as follows:

	FHWA and/or FTA, as applicable, would develop modeling, analyses, and
documentation to support the categorical hot-spot finding.  This would
be done with early and comprehensive consultation and participation with
EPA.

	FHWA and/or FTA would provide EPA an opportunity to review and comment
on the complete categorical hot-spot finding documentation.  Any
comments would need to be resolved in a manner acceptable to EPA prior
to issuance of the categorical hot-spot finding.  Consultation with EPA
on issue resolution would be documented.

	FHWA and/or FTA would make the final categorical hot-spot finding in a
memorandum or letter, which would be posted on EPA’s and DOT’s
respective conformity websites.

Subsequently, transportation projects that meet the criteria set forth
in the categorical hot-spot finding would reference that finding in
their project-level conformity determination, which would be subject to
interagency consultation and the public involvement requirements of the
National Environmental Policy Act (NEPA) process and the conformity rule
(40 CFR 93.105(e)).  The existing consultation and public involvement
processes would be used to consider the categorical hot-spot finding for
a particular project.

X.	Deletion of Regulation 40 CFR 93.109(e)(2)(v)

A.	Description of Final Rule

EPA is removing a provision of the transportation conformity rule that
was vacated by the U.S. Court of Appeals for the District of Columbia
Circuit (Environmental Defense v. EPA, et al., D.C. Cir. No. 04-1291) on
October 20, 2006.  This provision, 40 CFR 93.109(e)(2)(v), allow  SEQ
CHAPTER \h \r 1 ed 8-hour ozone areas to use the interim emissions
test(s) for conformity instead of 1-hour ozone SIP budgets where the
interim emissions test(s) was determined to be more appropriate to meet
Clean Air Act requirements.  The court vacated this provision and
remanded it to EPA.

B.	Rationale and Response to Comments

As discussed in the July 1, 2004, preamble (69 FR 40025), EPA
anticipated that this provision would be used infrequently but that
there would be some cases where using the interim emissions test(s)
would be more appropriate to meet Clean Air Act requirements.  Because
of the court’s decision on this provision, 8-hour ozone areas can no
longer rely on §93.109(e)(2)(v) to use an interim emissions test(s)
instead of using 1-hour ozone budget(s).  Areas must now use all
relevant existing 1-hour ozone budgets in future conformity
determinations until 8-hour ozone emissions budgets are found adequate
or are approved for a given analysis year. EPA received one comment
agreeing that the deletion is consistent with the court ruling.

The court’s decision has minimal impact since most 8-hour ozone areas
are already either using their 1-hour or 8-hour ozone SIP budgets.  EPA,
in cooperation with DOT, has already provided assistance to the limited
number of areas affected by the recent court decision.

XI.  Miscellaneous Revisions

A.	Minor Revision to §93.102(b)(4)

EPA is making a minor revision to §93.102(b)(4), which addresses the
period of time that transportation conformity applies in maintenance
areas.  This is the period of time during which the requirements of the
conformity rule apply in an area, and not the timeframe any one
conformity determination examines, as discussed in Section VI.,
“Timeframes for Conformity Determinations.”

Section 93.102(b)(4) had previously stated that conformity applied in
“maintenance areas for 20 years from the date EPA approves the
area’s request under section 107(d) of the CAA for redesignation to
attainment, unless the applicable implementation plan specifies that the
provisions of this subpart shall apply for more than 20 years.”  We
are clarifying this section to ensure that conformity would apply in
maintenance areas through the last year of their approved Clean Air Act
section 175A(b) maintenance plan (i.e., the area’s second 10-year
maintenance plan), unless the applicable implementation plan specifies
that conformity would continue to apply beyond the end of that
maintenance plan.  We received two comments that supported this
clarification.

EPA is only clarifying §93.102(b)(4) because the previous regulation
may have been read to not account for the situation where a maintenance
area submits a second maintenance plan that establishes a budget for a
year more than 20 years beyond the date of EPA’s approval of the
area’s redesignation request and first maintenance plan.

For example, suppose an area’s redesignation request and first
maintenance plan are approved in 2006 and the maintenance plan
establishes budgets for 2016.  This area submits a second maintenance
plan that extends through 2030 and establishes budgets for that year.
Under the previous regulatory language, conformity applied in this area
“for 20 years from the date EPA approves” the area’s redesignation
to maintenance, i.e., until 2026, despite the fact that the area would
have budgets for 2030.  This result would have been inconsistent with
the Clean Air Act, which requires that transportation activities conform
to the SIP.  EPA’s clarification that conformity applies through the
last year of the approved second maintenance plan ensures that
conformity applies throughout the time period covered by the SIP
budgets.  In this example, conformity would apply until 2030.

This revision will not change the implementation of conformity
requirements in maintenance areas.  The Clean Air Act requires that
maintenance plans cover a period of 20 years from the year that EPA
approves the area’s redesignation request.  With this change in the
regulation, conformity would continue to apply in maintenance areas for
at least 20 years beyond the date of EPA’s redesignation of an area to
maintenance.  This clarification is consistent with EPA’s intention as
expressed in the preamble to the 1993 final transportation conformity
rule, which stated, “If the maintenance plan establishes emissions
budgets for more than twenty years, the area would be required to show
conformity to that maintenance plan for more than twenty years” (58 FR
62206).

B.	Technical Corrections to §§93.102(b)(2)(v) and 93.119(f)(10)

EPA is making corrections to §§93.102(b)(2)(v) and 93.119(f)(10) to
change “sulfur oxides” to “sulfur dioxide” and  “SOx” to
“SO2.”  In the May 6, 2005, transportation conformity final rule (70
FR 24279), EPA finalized requirements for PM2.5 precursors.  In that
final rulemaking, we included “sulfur oxides” as one of the
precursors and referred to sulfur oxides as SOx.  Since that rulemaking
was finalized, EPA has finalized the PM2.5 implementation rule (72 FR
20586) and indicated that sulfur dioxide (SO2) would be regulated as a
PM2.5 precursor rather than all sulfur oxides.  We are making these
corrections to the transportation conformity rule in order to make it
consistent with EPA’s broader PM2.5 implementation strategy.  We
received two comments that supported these corrections.  This change
will not impact current conformity practice.

C.	Revisions to “Table 2 – Exempt Projects” in §93.126

EPA is making several minor clarifications to “Table 2 – Exempt
Projects” in §93.126, under the category of “Safety.”
Specifically, EPA is updating the following terms:

“Hazard elimination program” is now “Projects that correct,
improve, or eliminate a hazardous location or feature;”

“Safety improvement program” is now “Highway Safety Improvement
Program implementation;” and

“Pavement marking demonstration” is now “Pavement marking.”

EPA is updating these terms to make them consistent with the terms in 23
U.S.C. 148, which has been amended by SAFETEA-LU section 1401.  These
revisions to Table 2 of the conformity regulation do not change the
types of safety projects that are exempt from transportation conformity
requirements.  These revisions would only update the terminology to be
consistent with the changes made by SAFETEA-LU to 23 U.S.C. 148.  For
more details see Section XI. C. “Revisions to ``Table 2--Exempt
Projects'' in §93.126” in the May 2, 2007, notice of proposed
rulemaking  (72 FR 24488).

We received five comments on this portion of the proposal.  Several of
the commenters indicated that they support the changes to the list of
exempt projects.

One commenter asked if EPA had considered revising the list of exempt
projects in 40 CFR 93.126 to further clarify the types of projects that
are exempt or non-exempt under “Transportation Enhancement
Activities.”  FHWA’s guidance on activities that may be funded with
Transportation Enhancement Activities is available on DOT’s Website
at: http://www.fhwa.dot.gov/environment/te/guidance.htm#eligible.  After
reviewing this guidance, we have concluded that 40 CFR 93.126 is correct
and additional changes are not required.

Some commenters recommended additions to the list of exempt projects in
§93.126.  Given that we did not propose and request public comment on
these additional changes to the list of exempt projects, these comments
are outside the scope of today’s rulemaking.

D.	Definitions

Today’s final rule revises the definitions of “metropolitan planning
organization (MPO)” and “transportation improvement program (TIP)”
to reflect the definitions in SAFETEA-LU sections 3005(a) and 6001(a).
Pursuant to SAFETEA-LU, the term “MPO” now refers to the policy
board for the organization that is designated under 23 U.S.C. 134(d) and
49 U.S.C. 5303(d).  EPA is revising the definitions of these terms in
§93.101 to be consistent with the new statutory definitions.  These
changes have no practical impact in conformity implementation.

EPA received three comments supporting the revisions to the definitions
of MPO and TIP because these changes make the transportation conformity
regulation consistent with SAFETEA-LU.

E.	Minor Clarifications for Hot-spot Analyses

	EPA is incorporating two minor clarifications to the conformity
rule’s hot-spot analysis provisions.  These changes do not
substantively change current requirements but should improve
understanding and implementation of the conformity rule, in light of
other rule changes.  Three commenters supported these changes related to
hot-spot analyses.

First, EPA is making minor changes to §§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.  Specifically, EPA’s minor change to §93.116(a) ensures
that hot-spot analyses cover the timeframe of the transportation plan in
metropolitan and donut nonattainment and maintenance areas.  The
addition to §93.109(l)(2)(i) ensures that hot-spot analyses in isolated
rural areas examine a project’s air quality impact over the timeframe
of the long-range statewide transportation plan.

As discussed in Section VI., today’s final rule allows MPOs to elect
to shorten the timeframe addressed by transportation plan and TIP
conformity determinations, and allows state DOTs to elect to shorten the
timeframe addressed by regional emissions analyses in isolated rural
areas.  The minor changes to §§93.116(a) and 93.109(l)(2)(i) ensure
that project-level hot-spot analyses examine the appropriate time
period, even if the timeframe of the long-range transportation plan or
TIP conformity determination or regional emissions analysis is
shortened.  The Clean Air Act provisions that allow an election to
shorten the timeframe covered by conformity determinations apply only to
transportation plan and TIP conformity determinations, or regional
emissions analyses in isolated rural areas, and do not apply to hot-spot
analyses.

Second, today’s final rule incorporates a technical clarification to
§93.123(b)(1)(i) to address some confusion in the field since our March
10, 2006, final rule (71 FR 12468).  Section 93.123(b)(1)(i) requires
PM2.5 or PM10 hot-spot analyses to be completed for “New highway
projects that have a significant number of diesel vehicles, and expanded
projects that have a significant increase in the number of diesel
vehicles.”  The prior wording was “New or expanded highway projects
that have a significant number of or significant increase in diesel
vehicles.”

	Since the March 2006 final rule was promulgated, EPA and DOT have
received several questions regarding what types of new and expanded
highway projects are covered by §93.123(b)(1)(i).  For example, some
state and local transportation agencies have asked how the current
rule’s reference to a “significant increase in diesel vehicles”
applies to new highway projects.  Although EPA and DOT have answered
these and other questions, clarifying this provision of the conformity
rule will assist planners as they implement the rule in the future.  The
technical clarification in today’s final rule does not change the type
of new or expanded highway projects that would require PM2.5 or PM10
hot-spot analyses for transportation conformity purposes; we are simply
clarifying the provision through a grammatical change.

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

	EPA is finalizing a minor revision to how §§93.104(b)(2) and
93.105(c)(1)(v) describe transportation plan changes that require
conformity determinations, but are not comprehensive transportation plan
updates.  EPA is changing references for transportation plan
“revision(s)” to be transportation plan “amendment(s),” to be
consistent with the revised planning definitions in DOT’s February 14,
2007, final transportation planning regulations (72 FR 7224).  Today’s
changes provide consistency between how mid-cycle transportation plan
and TIP changes are currently described in the conformity rule.  The
revision does not change the substantive requirements for when a
conformity determination is required for transportation plan changes.
In addition, the minor wording change to §93.105(c)(1)(v) does not
necessitate a conformity SIP revision.  Three commenters supported the
changes.

G.	Minor Revision to Reference for Public Consultation Provision

	EPA is updating a reference in §93.105(e) of the conformity rule to be
consistent with DOT’s transportation planning regulations.  Section
93.105(e) describes the procedures for consulting with the general
public on conformity determinations.  This provision now refers to 23
CFR 450.316(a)of DOT’s transportation planning regulations, which
describes how public involvement occurs during the development of
transportation plans and TIPs.  In its February 14, 2007, final rule (72
FR 7224), DOT reorganized 23 CFR 450.316 to reflect the new SAFETEA-LU
statute.  DOT moved the public consultation procedures that EPA has
historically relied upon in the conformity rule from 23 CFR 450.316(b)
to 23 CFR 450.316(a).  Today’s final rule reflects this change in
DOT’s transportation planning regulations.  Three commenters supported
this change.

This revision does not change the substantive requirements for the
public consultation requirements for conformity determinations.  In
addition, today’s change does not cause states to revise their
conformity SIPs, since the revision involves an administrative change to
one reference in DOT’s regulations.  EPA has not required conformity
SIP revisions for similar reference changes in the past; the public
participation requirements in existing approved conformity SIPs can be
implemented as intended even if they do not reflect the most current
citation in DOT’s regulations.

XII.	Statutory and Executive Order Reviews

A. 	Executive Order 12866: Regulatory Planning and Review

	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

Transportation conformity determinations are required under Clean Air
Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally
supported highway and transit project activities are consistent with
(“conform to”) the purpose of the SIP.  Conformity to the purpose of
the SIP means that transportation activities will not cause or
contribute to new air quality violations, worsen existing violations, or
delay timely attainment of the relevant air quality standards.
Transportation conformity applies under EPA’s conformity regulations
at 40 CFR parts 51.390 and 93 to areas that are designated nonattainment
and those redesignated to attainment after 1990 (“maintenance areas”
with SIPs developed under Clean Air Act section 175A) for
transportation-source criteria pollutants.  The Clean Air Act gives EPA
the statutory authority to establish the criteria and procedures for
determining whether transportation activities conform to the SIP.

This action does not impose any new information collection burden or any
new information collection requirements.  The Office of Management and
Budget has previously approved the information collection requirements
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.  The information collection requirements of EPA’s existing
transportation conformity rule and the revisions in today’s action are
addressed by two information collection requests (ICRs).  Requirements
for carbon monoxide, PM10, nitrogen dioxide, and 1-hour ozone
nonattainment and maintenance areas are covered under the DOT ICR
entitled, “Metropolitan and Statewide Transportation Planning,” with
the OMB control number of 2132-0529.  Requirements related to 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.
 EPA is currently revising its ICR to cover all transportation
conformity burden (EPA ICR No. 2130.03, OMB Control No. 2060–0561),
and this ICR will incorporate the efficiencies in today’s final rule.

	Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a federal agency.  This includes the time needed
to review instructions; develop, acquire, install and utilize technology
and systems for the purposes of collecting, validating, verifying,
processing, maintaining, disclosing, and providing information; adjust
the existing ways to comply with any previously applicable instructions
and requirements; train personnel to be able to respond to a collection
of information; search data sources; complete and review the collection
of information; and transmit or otherwise disclose the information.

	An agency may not collect information, and a person is not required to
respond to an agency’s request for information unless it has a
currently valid OMB control number.  The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C.  	Regulatory Flexibility Act

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

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

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

D. 	 Unfunded Mandates Reform Act

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

	 EPA has determined that this rule itself does not contain a federal
mandate that may result in expenditures of $100 million or more by
state, local, and tribal governments, in the aggregate, or the private
sector in any one year.  The primary purpose of this rule is to amend
the conformity rule to be consistent with Clean Air Act section 176(c)
as amended by SAFETEA-LU.  The Clean Air Act amendments made by
SAFETEA-LU were intended to reduce the burden of demonstrating
conformity in designated nonattainment and maintenance areas subject to
conformity requirements.  Thus, although this rule explains how to
implement these Clean Air Act amendments, it merely implements already
established law that imposes conformity requirements and does not itself
impose requirements that may result in expenditures of $100 million or
more in any year.  Thus, today’s rule is not subject to the
requirements of sections 202 and 205 of the UMRA and EPA has not
prepared a statement with respect to budgetary impacts.

EPA has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments.  This
rule   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.  Additionally, this rule explains how to
implement Clean Air Act requirements, as such it merely implements
already established law that imposes conformity requirements and does
not itself impose requirements.

E. 	Executive Order 13132: Federalism

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

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

	Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments

	Executive Order 13175: “Consultation and Coordination with Indian