[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Proposed Rules]
[Pages 44790-44799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21405]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5284-5]
RIN 2060-AF95


Transportation Conformity Rule Amendments: Miscellaneous 
Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes in this action to make several changes to its 
current regulation requiring certain transportation actions to conform 
to the state's air quality plan. This action proposes to amend the 
November 24, 1993, transportation conformity rule in order to allow 
transportation control measures (TCMs) to proceed even if the 
conformity status of the transportation plan and program has lapsed, 
provided the TCM is included in an approved state implementation plan 
or federal implementation plan and was included in a previously 
conforming transportation plan and program. Such TCMs would be halted 
under the existing transportation conformity rule should a conformity 
lapse occur.
    This proposal would also extend the grace period before which areas 
must determine conformity to a submitted control strategy 
implementation plan. This extension would provide relief most 
immediately to some moderate and above ozone nonattainment areas, for 
which conformity otherwise would lapse on November 15, 1995, should 
such areas fail to demonstrate conformity.
    This action proposes to align the date of conformity lapse with the 
date of application of Clean Air Act highway sanctions for any failure 
to submit or submission of an incomplete control strategy state 
implementation plan (SIP).
    This proposal would also correct the nitrogen oxides (NOX) 
provisions of the transportation conformity rule consistent with 
previous commitments made by EPA in Federal Register notices concerning 
transportation conformity NOX waivers. This proposal to change the 
statutory authority for NOX waivers is also published as an 
interim final rule in the final rule section of today's Federal 
Register, and is effective immediately.
    Finally, this action proposes to establish a grace period before 
which transportation plan and program conformity must be determined in 
newly designated nonattainment areas; clarify certain wording; and make 
certain technical corrections.
    EPA proposes that a transportation conformity SIP revision 
consistent with these amendments would be required to be submitted to 
EPA by 12 months following the date of publication of the final rule.

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

ADDRESSES: Interested parties may submit written comments (in 
duplicate, if possible) to: Air and Radiation Docket and Information 
Center, U.S. Environmental Protection Agency, Attention: Docket No. A-
95-05, 401 M Street, S.W., Washington, DC 20460.
    Materials relevant to this proposal have been placed in Public 
Docket A-95-05 by EPA. The docket is located at the above address in 
room M-1500 Waterside Mall (ground floor) and may be inspected from 8 
a.m. to 4 p.m., Monday through Friday, including all non-government 
holidays.

FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Emission Control 
Strategies Branch, Emission Planning and Strategies Division, U.S. 
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 
48105. (313) 668-4441.

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

I. Background on Transportation Conformity Rule
II. Transportation Control Measures (TCMs)
III. Requirement to Redetermine Conformity to Submitted Control 
Strategy SIP
IV. Grace Period for Use of Submitted Motor Vehicle Emissions 
Budgets
V. Alignment With Clean Air Act Highway Sanctions
VI. Applicability of Nitrogen Oxides (NOX) Provisions
VII. Grace Period for Newly Designated Nonattainment Areas
VIII. Wording Clarifications to 40 CFR 51.448 and 93.128
IX. Technical Corrections to 40 CFR 51.452 and 93.130
X. Conformity SIPs
XI. Administrative Requirements

I. Background on Transportation Conformity Rule

    The transportation conformity rule, ``Criteria and Procedures for 
Determining Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Funded or Approved Under 
Title 23 U.S.C. or the Federal Transit Act,'' was published November 
24, 1993, (58 FR 62188) and amended 40 CFR parts 51 and 93. The Notice 
of Proposed Rulemaking was published on January 11, 1993 (58 FR 3768). 

[[Page 44791]]

    Required under section 176(c) of the Clean Air Act, as amended in 
1990, the transportation conformity rule established the criteria and 
procedures by which the Federal Highway Administration, the Federal 
Transit Administration, and metropolitan planning organizations 
determine the conformity of federally funded or approved highway and 
transit plans, programs, and projects to SIPs. According to the Clean 
Air Act, federally supported activities must conform to the 
implementation plan's purpose of attaining and maintaining the national 
ambient air quality standards.
    On February 8, 1995, EPA published an interim final rule entitled, 
``Transportation Conformity Rule Amendments: Transition to the Control 
Strategy Period.'' This interim final rule, which was effective 
immediately and applied until August 8, 1995, aligned the dates of 
certain adverse consequences that are imposed by the transportation 
conformity rule with the date that Clean Air Act section 179(b) highway 
sanctions become effective. A proposal to make the alignment of these 
dates permanent was also published February 8, 1995, and the final rule 
was published **.
    Since publication of the transportation conformity rule in November 
1993, EPA, DOT, and state and local air and transportation officials 
have had considerable experience implementing the criteria and 
procedures in the rule. It is that mutual experience which leads to the 
amendments which EPA is proposing today. In each case, the amendments 
are needed to clarify ambiguities, correct errors, or make the 
conformity process more logical and feasible.
    EPA intends to propose further amendments to the transportation 
conformity rule to address concerns raised by conformity stakeholders, 
such as the build/no-build test, non-federal projects, adding projects 
between plan/TIP cycles, and rural nonattainment areas.

II. Transportation Control Measures (TCMs)

A. Background

    The November 1993 transportation conformity rule does not allow 
TCMs to be federally funded, accepted, or approved without a conforming 
transportation plan and transportation improvement program (TIP) in 
place.
    Clean Air Act sections 176(c)(2) (C) and (D) require that 
conforming transportation plans and TIPs be used to determine whether 
projects are in conformity. According to the November 1993 
transportation conformity rule, the only federally funded or approved 
projects which may proceed in the absence of a conforming plan and TIP 
are those which have already been found to conform and those which the 
rule exempts because of their de minimis emission impacts. TCMs in 
general are not exempt projects.
    EPA acknowledged in the preamble to the final rule that it may 
appear intuitively counterproductive to delay transportation projects 
which benefit air quality just because an area is unable to develop a 
conforming transportation plan and TIP. However, EPA asserted that 
allowing project-by-project approvals in the absence of a conforming 
transportation plan and TIP is contrary to the underlying philosophy 
that transportation actions must be planned and evaluated for emissions 
effects in the aggregate and for the long term. If TCMs proceeded 
outside the context of the transportation plan and TIP, EPA feared that 
there would be no assurance that the analysis of reasonable 
alternatives had been properly conducted and that the effect of the TCM 
on the flow within the network had been properly accounted for.
    Furthermore, EPA stated its concern that allowing TCMs to proceed 
without a conforming transportation plan and TIP may undermine the 
cooperative transportation planning process. All constituencies should 
have a stake in the development of a conforming transportation plan and 
TIP, particularly given that compromises and tradeoffs among involved 
parties are often necessary.

B. Description of Proposal for TCMs

    This proposal would allow TCMs which are in an approved SIP and 
have been included in a previously conforming transportation plan and 
TIP to proceed even if the conformity status of the current 
transportation plan or TIP lapses. Specifically, it would allow a 
project-level conformity determination to be made for a TCM 
specifically included in an approved SIP even if there were no 
currently conforming transportation plan and TIP in place (as presently 
required by 40 CFR 51.420 and 93.114), provided that the TCM was 
previously included in a conforming plan and TIP and all other relevant 
criteria for a project from a transportation plan and TIP have been 
satisfied (e.g., hot-spot analysis was performed as necessary).
    According to this proposal, a TCM that had been included in a 
conforming plan and TIP would be considered to come from a plan and TIP 
(as required by 40 CFR 51.422 and 93.115) even if the conformity status 
of that transportation plan and TIP had subsequently lapsed. However, 
the other requirements in 40 CFR 51.422 and 93.115 defining what 
projects ``come from'' a transportation plan and TIP would continue to 
apply, including the requirement that the project's design concept and 
scope have not changed significantly from those which were described in 
the transportation plan/TIP.

C. Rationale

    Even if an area's conformity status lapses, this proposal would 
allow work to continue on TCMs which have completed the metropolitan 
transportation planning process and are included in an approved SIP, 
but have not completed the National Environmental Policy Act process. 
EPA believes that it would be counterproductive to overcoming future 
difficulties in demonstrating conformity to halt progress on a TCM 
which has been approved through the air quality planning process and 
has met the metropolitan transportation planning process' requirements. 
Such a TCM has been endorsed by both the transportation and air quality 
communities as a project beneficial for air quality, and stopping its 
progress would make it more difficult to implement the SIP, develop a 
revised plan and TIP which can be found to conform, and attain the 
national ambient air quality standards.
    EPA's previously expressed concerns about allowing TCMs to proceed 
in the absence of a conforming transportation plan and TIP do not apply 
in the context of this proposal, because this proposal's applicability 
is limited to TCMs which have been in a conforming transportation plan 
and TIP. Such TCMs have been considered in the long term and in the 
aggregate, in the context of the transportation plan and TIP and the 
cooperative transportation planning process. This amendment would not 
allow TCMs to circumvent the metropolitan transportation planning 
process; it would simply prevent the consequences of conformity 
failures from disrupting further project development activities for the 
implementation of TCMs.
    Furthermore, EPA believes that this proposal is consistent with the 
Clean Air Act conformity provisions. Conformity is defined in Clean Air 
Act section 176(c)(1) as conformity to the implementation plan's 
purpose. Accordingly, implementation of a measure specifically included 
in the implementation plan should conform. 

[[Page 44792]]
The subsequent requirement in section 176(c)(2)(C)(i) for a project to 
come from a conforming plan and program is an elaboration of the 
general definition in section 176(c)(1) and should not prevent actions 
obviously consistent with the general definition from proceeding.

D. Impact

    At the present time, few control strategy SIPs (e.g., attainment 
demonstrations, 15% volatile organic compound emission reduction SIPs) 
have been approved by EPA. As a result, there are currently few TCMs 
which would be affected by this proposal. However, EPA expects that in 
the future there will be a number of TCMs which are included in an 
approved SIP and have been included in a conforming transportation plan 
and TIP which might be jeopardized by subsequent plan/TIP conformity 
lapses.
    In particular, major highway and transit infrastructure projects 
which have been designated as TCMs in the SIP frequently have a lengthy 
period for project planning and development, including the federal 
environmental review. As a result, these major infrastructure 
investments are especially susceptible to being delayed by future 
lapses in transportation plan and TIP conformity status, despite their 
role in contributing to the conformity status of previously approved 
transportation plans and TIPs. This proposal would allow such projects 
to complete the project development process even if subsequent 
conformity difficulties caused an area's plan or TIP conformity status 
to lapse.

III. Requirement to Redetermine Conformity to Submitted Control 
Strategy SIP

A. Background

    40 CFR 51.448(a)(1) and 93.128(a)(1) require the transportation 
plan and TIP to be found to conform to a submitted control strategy SIP 
revision within one year from the date the Clean Air Act requires its 
submission. Thus, in areas required to submit ozone attainment/3% rate-
of-progress SIPs, which were generally due November 15, 1994, the 
current transportation conformity rule requires conformity to those 
SIPs to be determined by November 15, 1995, or else conformity status 
will lapse.

B. Description of Proposal
    This proposal would amend 40 CFR 51.448(a)(1) and 93.128(a)(1) to 
allow areas 18 months to determine conformity, starting from the date 
of the State's initial submission to EPA of a control strategy SIP 
revision establishing a motor vehicle emissions budget. If conformity 
is not demonstrated within 18 months following such submission, the 
conformity status of the transportation plan and TIP will lapse, and no 
new project-level conformity determinations may be made.
    This deadline for determining conformity to a submitted control 
strategy SIP would apply to the initial submission of each type of 
control strategy SIP. Ozone 15% SIPs, ozone 3% rate-of-progress SIPS, 
and attainment demonstrations (for any pollutant) are all control 
strategy SIPs whose initial submission would require conformity to be 
determined within 18 months.
    The 18-month time period for determining conformity would not be 
affected by subsequent changes to the submitted control strategy SIP. 
For example, if within the 18-month period the initial submission is 
revised before conformity has been determined, the 18-month clock would 
not be restarted. However, when conformity is eventually determined, 
the relevant motor vehicle emissions budget must be used. If conformity 
to the initial submission has been demonstrated and that submission is 
subsequently revised, no 18-month clock would be started until, as 
required in Sec. 51.400(a)(3) (93.104(a)(3)), ``Frequency,'' the SIP is 
approved by EPA.

C. Rationale

    This proposal is consistent with the existing transportation 
conformity rule in that it imposes a one-time requirement to determine 
conformity after the initial submission of a control strategy SIP. EPA 
is proposing to redefine the beginning and length of the grace period 
before conformity to a newly submitted SIP must be demonstrated in 
order to be consistent with flexibility EPA is allowing on submission 
deadlines for ozone attainment SIPs.
    EPA has provided flexibility regarding the deadline for submission 
of ozone attainment/3% SIPs because of unavoidable delays in their 
development (see March 2, 1995, memorandum from Mary D. Nichols, 
Assistant Administrator for Air and Radiation, to EPA Regional 
Administrators, titled, ``Ozone Attainment Demonstrations''). The 
existing conformity rule requires conformity to these SIPs to be 
determined by November 15, 1995, but many ozone areas have not even 
submitted such SIPs yet. As a result, EPA believes it is more 
appropriate to begin the grace period with a State's actual submission, 
rather than the Clean Air Act deadline for submission.
    In addition, EPA is proposing to extend the grace period from 12 
months to 18 months because experience with the existing conformity 
rule indicates that 18 months is a more reasonable timeframe. Also, the 
18-month grace period is consistent with the grace period allowed in 40 
CFR 51.400 and 93.104 after publication of the final rule and after EPA 
approval of control strategy SIP revisions.
    EPA notes that there is a possibility that the agency will be 
unable to complete final rulemaking on these proposed amendments by 
November 15, 1995, in light of the date of this proposal and the need 
to respond to any comments submitted on the proposal. However, EPA 
believes that even should this proposed change not be effective by 
November 15, 1995, the conformity status of plans and TIPs would not 
lapse for certain areas taking advantage of the flexibilities provided 
in the March 2, 1995, memorandum. This is because in the March 2 
memorandum EPA interpreted the statute as not requiring such areas to 
submit attainment demonstrations on November 15, 1994.
    In the March 2 memorandum, EPA acknowledged that circumstances 
beyond the control of the States had precluded the States from 
completing the SIP submittals within the deadline (November 15, 1994) 
prescribed in the Act. Moreover, the deadline had passed and States 
could not reasonably be expected to complete the submissions in the 
immediate future. EPA emphasized that much of the problem stemmed from 
technical issues that arose in compiling the inventories and conducting 
modeling, particularly in light of the complexities of accounting for 
ozone transport.
    In light of this unique situation, EPA implemented the statutory 
requirements for SIP submissions in a more flexible manner. EPA, in 
effect, extended the submission date and established new, staggered 
submission deadlines for various components of the required submittals. 
The lapsing provisions of the current conformity rule impose a lapse 
one year from the date the Clean Air Act requires submission of a 
control strategy implementation plan revision. Since under EPA's 
interpretation of the Act in the circumstances just described the 
statute does not require submissions for such states in November 1994, 
the conformity status of plans and TIPs in such areas will not lapse in 
November 1995, but rather would lapse one year from the various dates 
described in the March 2, 1995, policy referred to above. Prior to any 
of those dates, EPA will 

[[Page 44793]]
have ample time to complete final action on the rule change proposed 
today.
    However, those areas which are not taking advantage of the 
flexibility of the March 2 memorandum are still required under the 
current rule to determine conformity by November 15, 1995. These areas 
will lapse on November 15, 1995, if final action on this proposal is 
not effective by then and they have not determined conformity.

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

    The current conformity rule requires conformity to submitted 15% 
SIPs to be demonstrated by November 15, 1994. Conformity status in some 
areas has already lapsed because of failure to meet this deadline. This 
proposal would affect the deadline to determine conformity to submitted 
15% SIPs in only a very few areas, because most 15% SIPs were submitted 
more than 18 months ago. For the few areas that submitted very late 15% 
SIPs, this proposal would extend by a few months the time allowed to 
demonstrate conformity to the 15% SIP.

IV. Grace Period for Use of Submitted Motor Vehicle Emissions 
Budgets

    This proposal would clarify the existing transportation conformity 
rule's 90-day grace period before motor vehicle emissions budgets in 
newly submitted control strategy SIPs are required to be used to 
demonstrate conformity (presently section 51.448(a)(1)(ii) and 
93.128(a)(1)(ii)).
    This proposal clarifies that although areas are not required to use 
motor vehicle emissions budgets in the first 90 days following their 
submission, they may do so if EPA agrees the budgets are adequate for 
transportation conformity purposes. Newly submitted motor vehicle 
emissions budgets are required to be used in transportation conformity 
determinations beginning 90 days after their submission, provided EPA 
has not rejected the use of such submitted budgets for the purposes of 
transportation conformity.

V. Alignment With Clean Air Act Highway Sanctions

A. Description of Proposal

    This proposal would not impose a transportation plan/TIP conformity 
lapse as a result of failure to submit or submission of an incomplete 
ozone, CO, PM-10, or NO2 control strategy SIP until the date that 
Clean Air Act section 179(b) highway sanctions are applied as a result 
of such failure.
    The February 8, 1995, interim final rule aligned transportation 
plan/TIP conformity lapse with application of Clean Air Act highway 
sanctions only in the cases of incomplete 15% SIPs with protective 
findings, failure to submit or submission of incomplete ozone 
attainment/3% SIPs, and disapproval of control strategy SIPs with a 
protective finding. This proposal would also align with application of 
Clean Air Act highway sanctions the conformity lapse resulting from 
failure to submit a 15% SIP, submission of an incomplete 15% SIP 
without a protective finding, and failure to submit or submission of an 
incomplete CO, PM-10, or NO2 attainment SIP.
    This proposal would not align the conformity lapse resulting from 
disapproval of a control strategy SIP without a protective finding. EPA 
will continue to consider this issue in the context of future 
conformity rule amendments addressing conformity stakeholders' 
concerns.

B. Rationale

    EPA did not previously propose to align the conformity lapse in the 
cases of failure to submit a 15% SIP or incomplete 15% SIP without a 
protective finding because in these cases there is no other motor 
vehicle emissions budget to be used for the purposes of demonstrating 
transportation conformity. Since the February 8, 1995, interim final 
rule, EPA has made protective findings for all incomplete 15% SIPs, and 
areas which failed to submit required 15% SIPs are expected to submit 
such SIPs very shortly. As a result, aligning conformity lapse with 
highway sanctions for these cases will have no real impact, and by 
aligning conformity lapse for all ozone control strategy SIPs, the 
complexity of the regulatory text is greatly reduced.
    EPA did not previously propose to align conformity lapse with 
application of highway sanctions for failure to submit or submission of 
incomplete CO, PM-10 and NO2 attainment SIPs because there were no 
such SIP failures, and these cases therefore did not qualify for the 
interim final rule's emergency exception to the Administrative 
Procedures Act. The CO, PM-10 and NO2 attainment SIPs required to 
date are complete, and there are some PM-10 attainment SIPs which are 
not due yet. Aligning conformity lapse and highway sanctions for these 
control strategy SIPs would reduce the complexity of the conformity 
regulation and is not anticipated to have any other significant impact.

C. Federal Implementation Plans (FIPs)

    This proposal would prevent or remove the conformity lapse imposed 
as a result of a control strategy SIP failure on the date EPA 
promulgates a FIP with motor vehicle emissions budget(s) addressing 
that failure. Promulgation of a FIP with motor vehicle emissions 
budget(s) would serve as an appropriate basis for conformity 
determinations. EPA does not believe it is appropriate to impose a 
conformity lapse where a budget is in place against which conformity 
can be assessed. Moreover, nothing in section 176(c) suggests that such 
a lapse would be appropriate.
VI. Applicability of Nitrogen Oxides (NOx) Provisions

A. Background

    Clean Air Act section 176(c)(3)(A)(iii) requires that 
transportation plans and TIPs contribute to emissions reductions in 
ozone and carbon monoxide areas before control strategy SIPs are 
approved. This requirement is implemented in 40 CFR 51.436 through 
51.440 (and 93.122 through 93.124), which establishes the so-called 
``build/no-build test.'' This test requires a demonstration that the 
``Action'' scenario (representing the implementation of the proposed 
transportation plan/TIP) will result in lower motor vehicle emissions 
than the ``Baseline'' scenario (representing the implementation of the 
current transportation plan/TIP). In addition, the ``Action'' scenario 
must result in emissions lower than 1990 levels.
    The November 1993 final transportation conformity rule does not 
require the build/no-build test and less-than-1990 test for NOx as an 
ozone precursor in ozone nonattainment areas where the Administrator 
determines that additional reductions of NOx would not contribute to 
attainment. Clean Air Act section 176(c)(3)(A)(iii), which is the 
conformity provision requiring contributions to emission reductions 
before SIPs with emissions budgets are approved, specifically 
references Clean Air Act section 182(b)(1). That section requires 
submission of State plans that, among other things, provide for 
specific annual reductions of VOC and NOx emissions ``as necessary'' to 
attain the ozone standard by the applicable attainment date. Section 
182(b)(1) further states that its requirements do not apply in the case 
of NOx for those ozone nonattainment areas for which EPA determines 
that additional reductions of NOx would not contribute to attainment.
    On June 17, 1994 (59 FR 31238), EPA issued guidance in the form of 
a general preamble specifically focusing on how the agency intended to 
process 

[[Page 44794]]
conformity NOx waiver requests for nonclassifiable ozone nonattainment 
areas located outside the Ozone Transport Region. For other ozone 
nonattainment areas, the process for submitting waiver requests and the 
criteria used to evaluate them are explained in the December 1993 EPA 
document ``Guidelines for Determining the Applicability of Nitrogen 
Oxides Requirements Under Section 182(f),'' and the May 27, 1994, and 
February 8, 1995, memoranda from John S. Seitz, Director of the Office 
of Air Quality Planning and Standards, to Regional Air Division 
Directors, entitled ``Section 182(f) NOx Exemptions--Revised Process 
and Criteria.''

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

    This proposal would make it clear that consistency with NOx motor 
vehicle emissions budgets in control strategy SIPs and maintenance 
plans is still required in ozone nonattainment or maintenance areas 
which previously received a conformity NOx waiver. Although the NOx 
build/no-build test and less-than-1990 test would not apply for ozone 
nonattainment areas with a conformity NOx waiver, consistency with the 
NOx motor vehicle emissions budget in a submitted control strategy SIP 
(e.g., attainment demonstration) or approved maintenance plan would be 
required for transportation conformity demonstrations, regardless of 
the conformity NOx waiver. Before approving any conformity NOx waivers, 
EPA stated in the June 17, 1994, Federal Register notice that EPA 
intended to propose to amend the transportation conformity rule in this 
manner. In addition, the Natural Resources Defense Council, on behalf 
of several environmental groups, commented on this issue during EPA's 
rulemaking process for granting area-specific NOx waivers, and EPA in 
its response to comments acknowledged the error in EPA's transportation 
conformity rule and stated EPA's intent to propose amending the rule.
    Although when EPA promulgated the November 24, 1993, final 
conformity rule EPA intended the conformity NOX waiver to provide 
relief from the NOX build/no-build test only, due to a drafting 
oversight in the final conformity rule, none of the provisions related 
to NOX apply under that rule if an area had received a conformity 
NOX waiver. This proposal would delete the phrase ``unless the 
Administrator determines that additional reductions of NOX would 
not contribute to attainment'' in the ``Applicability'' section of the 
rule (40 CFR 51.394(b)(3)(i) and 93.102(b)(3)(i)) and in the ``Motor 
vehicle emissions budget (transportation plan)'' section (40 CFR 
51.428(b)(1)(ii) and 93.118(b)(1)(ii)). A revised version of this 
phrase would be retained only in the sections requiring the build/no-
build and less-than-1990 tests, in order to continue to allow relief 
from that requirement if a NOX waiver is granted, consistent with 
EPA's original intent.
    EPA is proposing this change in order to properly implement the 
Clean Air Act. The requirement for consistency with the SIP's motor 
vehicle emissions budget is required in section 176(c)(2)(A) of the 
conformity provisions. That section specifically requires conformity 
determinations to show that ``emissions expected from implementation of 
plans and programs are consistent with estimates of emissions from 
motor vehicles and necessary emission reductions contained in the 
applicable implementation plan.'' SIP demonstrations of reasonable 
further progress, attainment, and maintenance contain these emissions 
estimates and ``necessary emission reductions.'' Since the Act 
specifically requires an emissions-based comparison between the 
transportation plan/TIP and the SIP, EPA believes the emissions budget 
is the appropriate mechanism for carrying out the demonstration of 
consistency. This is true even with respect to regional-scale 
pollutants, since the air quality analysis in the SIP can be relied 
upon to show that the SIP emission levels will not cause or exacerbate 
violations.
    EPA believes that it is crucial for areas with attainment 
demonstrations or maintenance plans to demonstrate consistency with the 
NOX motor vehicle emissions budgets in those plans in order to 
demonstrate conformity with the SIP. EPA requires ozone attainment 
demonstrations and most ozone maintenance plans to include estimates of 
NOX emissions in order to adequately demonstrate attainment of the 
ozone standard by the Clean Air Act deadline or maintenance of the 
ozone standard. The resulting motor vehicle NOX emissions budgets 
may not necessarily represent reductions in motor vehicle NOX 
emissions, but these budgets are the motor vehicle NOX emission 
levels consistent with attainment and/or maintenance, and they must not 
be exceeded.

C. Authority for NOX Waivers and Process for Application and 
Approval

1. Change in Authority From Clean Air Act Section 182(f) to 182(b)(1)
    This proposal would also change the conformity rule's reference to 
Clean Air Act section 182(f) as the authority for waiving the NOX 
build/no-build and less-than-1990 tests for certain areas based on 
EPA's determination that additional reductions of NOX would not 
contribute to attainment. This change is also made in an interim final 
rule that is published in the ``Final rules'' section of today's 
Federal Register and is effective immediately.
    As described in paragraph V.A. ``Background,'' above, the stated 
authority for such a determination to provide relief from the interim-
reductions requirements of the Clean Air Act is actually Clean Air Act 
section 182(b)(1), which is specifically referenced in section 
176(c)(3)(A)(iii) of the conformity provisions. The Natural Resources 
Defense Council brought this to EPA's attention in its comments on 
EPA's rulemakings for area-specific NOX waivers.
    EPA agrees with the commenters, but also notes that section 
182(b)(1), by its terms, only applies to moderate and above ozone 
nonattainment areas. Consequently, EPA believes that the interim-
reductions requirements of section 176(c)(3)(A)(iii), and hence the 
authority provided in section 182(b)(1) to grant relief from those 
interim-reductions requirements, apply only with respect to those areas 
that are subject to section 182(b)(1). As explained further below, for 
areas not subject to section 182(b)(1) (e.g., marginal and below ozone 
nonattainment areas), EPA intends to continue to apply the 
transportation conformity rule's build/no-build test and less-than-1990 
tests for purposes of implementing the requirements of section 
176(c)(1), and EPA intends to continue to provide relief from these 
requirements under section 182(f). In addition, because general federal 
actions are not subject to section 176(c)(3)(A)(iii), which explicitly 
references section 182(b)(1), EPA will also continue to offer relief 
under section 182(f) from the applicable NOX requirements of the 
general conformity rule.
    In order to demonstrate conformity, transportation-related federal 
actions that are taken in ozone nonattainment areas not subject to 
section 182(b)(1) (and hence, not subject to section 176(c)(3)(A)(iii)) 
must still be consistent with the criteria specified under section 
176(c)(1). Specifically, these actions 

[[Page 44795]]
must not, with respect to any standard, cause or contribute to new 
violations, increase the frequency or severity of existing violations, 
or delay attainment. In addition, such actions must comply with the 
relevant requirements and milestones contained in the applicable SIP, 
such as reasonable further progress schedules, assumptions specified in 
the attainment or maintenance demonstration, numerical emissions limits 
or prohibitions. EPA believes that the build/no-build and less-than-
1990 tests provide an appropriate basis for such areas to demonstrate 
compliance with the above criteria.
    As stated earlier, EPA intends to continue to offer relief under 
section 182(f) from the interim NOX requirements of the conformity 
rules that would apply under section 176(c)(1) for the areas not 
subject to section 182(b)(1). EPA believes this approach is consistent 
both with the way NOX requirements in ozone nonattainment areas 
are treated under the Act generally, and under section 182(f) in 
particular. The basic approach of the Act is that NOX reductions 
should apply when beneficial to an area's attainment goals, and should 
not apply when unhelpful or counterproductive. Section 182(f) reflects 
this approach but also includes specific substantive tests which 
provide a basis for EPA to determine when NOX requirements should 
not apply. There is no substantive difference in the technical analysis 
required to make an assessment of NOX impact on attainment in a 
particular area with respect to mobile source or stationary source 
NOX emissions. Moreover, where EPA has determined that NOX 
reductions will not benefit attainment or would be counterproductive in 
an area, the Agency believes it would be unreasonable to insist on 
NOX reductions for purposes of meeting reasonable further progress 
or other milestone requirements. Thus, even as to the conformity 
requirements of section 176(c)(1), EPA believes it is reasonable and 
appropriate, first, to offer relief from the applicable NOX 
requirements of the general and transportation conformity rules in 
areas where such reductions would not be beneficial and, second, to 
rely in doing so on the exemption tests provided in section 182(f).
2. Implications of Change in Statutory Authority
    The change in authority for granting NOX waivers from section 
182(f) to section 182(b)(1) for areas subject to section 182(b)(1) has 
different impacts depending on whether the petitioning area is relying 
on ``clean'' air quality data or on modeling data. According to EPA's 
current information, almost all areas which intended to request a 
conformity NOX waiver have already applied. Most areas that are 
eligible for a conformity NOX waiver on the basis of ``clean 
data'' have already applied for (and in most cases, received) their 
waivers. There are less than ten areas which are eligible for a ``clean 
data'' conformity NOX waiver but which have not applied and do not 
have a pending redesignation request.
    Moderate and above ``clean data'' areas that have pending 
redesignation requests and are subject to section 182(b)(1) could be 
relieved of the NOX build/no-build and less-than-1990 tests under 
section 182(f) when EPA takes final action implementing its recently-
issued policy concerning, among other things, the applicability of 
section 182(b)(1) requirements for the areas that are demonstrating 
attainment of the ozone standard based on ``clean data.'' The May 10, 
1995, memorandum from John Seitz, Director of EPA's Office of Air 
Quality Planning and Standards, entitled ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' should be referred to for a more thorough discussion. The 
aspect of the policy that is relevant here is EPA's determination that 
the section 182(b)(1) provisions regarding reasonable further progress 
and attainment demonstrations may be interpreted so as not to require 
the SIP submissions otherwise called for in section 182(b)(1) if an 
ozone nonattainment area that would otherwise be subject to those 
requirements is in fact attaining the ozone standard (i.e., attainment 
of the standard is demonstrated with three consecutive years of 
complete, quality-assured air-quality monitoring data). Any such 
``clean data'' areas, under this interpretation, would no longer be 
subject to the requirements of section 182(b)(1) once EPA takes final 
rulemaking action adopting the interpretation in conjunction with its 
determination that the area has attained the standard. At that time, 
such areas would be treated like ozone nonattainment areas classified 
marginal and below, and hence eligible for NOX waivers from the 
interim-period transportation conformity requirements by obtaining a 
waiver under section 182(f), as described above.
    For moderate and above ozone nonattainment areas which are relying 
on modeling data in petitioning for a transportation conformity 
NOX exemption, the proposed change affects the process for 
applying for such waivers. Unlike section 182(f)(3), section 182(b)(1) 
requires that EPA approve a NOX waiver (i.e., determine that 
additional reductions of NOX would not contribute to attainment) 
as part of a SIP revision. In discussing the NOX (and VOC) 
reductions required under its provisions, section 182(b)(1) states that 
SIP revisions must be submitted which provide for ``such specific 
annual reductions in emissions of volatile organic compounds and oxides 
of nitrogen as necessary to attain the national primary ambient air 
quality standard for ozone'' by the applicable attainment date. The 
requirement does not apply in the case of NOX if the EPA makes a 
determination that additional reductions of NOX would not 
contribute to attainment. The Act also states that this determination 
must be made ``when the Administrator approves the plan or plan 
revision.'' The phrase ``the plan or plan revision'' clearly refers to 
the plan required under this subsection that must provide for the 
specific annual VOC and NOX reductions determined to be necessary 
for the area to attain the ozone national ambient air quality standard. 
EPA believes, consistent with its existing NOX exemption guidance, 
that this language can be interpreted to encompass approvals of SIP 
submittals containing NOX exemption requests based on adequate 
modeling. If the modeling demonstration for such requests is submitted 
as part of a SIP revision and provides adequate evidence that for the 
relevant area specific additional annual reductions of NOX are not 
``necessary'' for that area to attain the NAAQS, EPA believes such a 
demonstration would be consistent with the requirements of the NOX 
exemption test provided in section 182(b)(1).
3. New Process for Conformity NOX Waiver Application
    As discussed in the previous section, under Clean Air Act section 
182(b)(1), petitions for transportation conformity NOX waivers for 
areas subject to that section must be submitted as formal SIP revisions 
by the Governor (or designee) and following a public hearing. As 
explained previously, EPA will continue to process and approve under 
section 182(f)(3) conformity NOX waivers for areas not subject to 
section 182(b)(1), without public hearings or submission by the 
Governor.
    Except for the requirement for modeling data petitions to be 
submitted as part of a SIP revision for ozone areas subject to section 
182(b)(1), previous guidance on section 182(f) NOX waivers 
continues to apply for the purpose of 

[[Page 44796]]
conformity NOX waivers. As described in paragraph V.A. 
``Background,'' above, this guidance includes the June 17, 1994 (59 FR 
31238), general preamble entitled, ``Conformity; General Preamble for 
Exemption for Nitrogen Oxides Provisions,'' the December 1993 EPA 
document ``Guidelines for Determining the Applicability of Nitrogen 
Oxides Requirements Under Section 182(f),'' and the May 27, 1994, and 
February 8, 1995 memoranda from John S. Seitz, Director of the Office 
of Air Quality Planning and Standards, to Regional Air Division 
Directors, entitled ``Section 182(f) NOX Exemptions--Revised 
Process and Criteria.''
    EPA believes that the new procedural requirement for a public 
hearing and submission by the Governor (or designee) for these ozone 
nonattainment areas will not adversely affect states applying for 
transportation conformity NOX waivers since only two areas are 
awaiting an exemption based on modeling data.
4. General Conformity
    As noted earlier, the NOX provisions of the general conformity 
rule, ``Determining Conformity of General Federal Actions to State or 
Federal Implementation Plans'' (58 FR 63214, November 30, 1993), would 
not be affected by this proposal. A NOX waiver under Clean Air Act 
section 182(f) removes the NOX general conformity requirements 
entirely and would continue to do so. The Clean Air Act's provision for 
transportation conformity NOX waivers stems from section 
176(c)(3)(A)(iii), which addresses only transportation conformity, and 
not general conformity. Therefore, the statutory authority for general 
conformity NOX waivers is not required to be Clean Air Act section 
182(b) for any areas and may continue to be section 182(f) for all 
areas.

VII. Grace Period for Newly Designated Nonattainment Areas

    This proposal would allow areas which have been redesignated from 
attainment to nonattainment a 12-month grace period after final 
redesignation during which to determine the conformity of the 
transportation plan and TIP.
    Section 176(c)(3)(B)(i) of the Clean Air Act as amended in 1990 
allowed a similar grace period for 12 months after the date of 
enactment of the Clean Air Act Amendments of 1990. EPA believes it is 
appropriate to allow newly designated nonattainment areas this grace 
period to determine transportation plan/TIP conformity. Otherwise, no 
transportation projects could be found to conform in a newly designated 
nonattainment area until the conformity of the transportation plan and 
TIP had been demonstrated. Transportation plan/TIP conformity 
determinations take time, particularly for an area's first time, and 
EPA believes not allowing a grace period would unduly disrupt 
implementation of transportation projects.
    EPA believes it has authority under Sierra Club v. EPA, 719F.2d 436 
(DC Cir. 1983) to provide grandfathering from new requirements where 
the new rule is an abrupt departure from prior practice parties have 
relied on, the application of the new rule would impose a burden on 
parties, and there is not a strong interest in applying the new rule 
immediately.
VIII. Wording Clarifications to 40 CFR 51.448 and 93.128

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

    This proposal would clarify EPA's original intention that if 
conformity status lapses due to failure to redetermine conformity after 
a control strategy SIP submission, that lapse is remedied when 
transportation plan and TIP conformity to the new submission is 
eventually determined (although lapsing for other reasons would not be 
remedied). There is no reason to maintain a conformity lapse once 
conformity to a new budget has been demonstrated.

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

    Paragraph (g) in Secs. 51.448 and 93.128 would be deleted, because 
the other amendments in this proposal make paragraph (g)'s 
clarifications irrelevant and unnecessary.

IX. Technical Corrections to 40 CFR 51.452 and 93.130

A. Consistency With SIPs

    The preamble to the November 1993 transportation conformity rule 
states that for all areas there must be consistency between the SIP and 
the conformity analysis regarding temperature, season, time period, and 
other inputs (58 FR 62195, November 24, 1993). However, this regulatory 
requirement is by error stated in section 51.452(b) (93.130(b)), which 
applies only to serious, severe, and extreme ozone nonattainment areas 
and serious carbon monoxide areas after January 1, 1995.
    EPA indicated in an October 14, 1994, memorandum from Philip A. 
Lorang to EPA Branch Chiefs entitled ``Transportation Conformity Q & 
A's'' that EPA's intent was for this requirement to apply to all areas. 
This proposal would redesignate paragraph (b)(5) as paragraph (a)(6), 
because paragraph (a) is titled ``General requirements.'' This would 
clarify that the provision applies in all areas pursuant to EPA's 
original intention as stated in the preamble to the November 1993 rule.

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

    As EPA has indicated in the October 14, 1994, ``Transportation 
Conformity Q & A's'' memorandum cited above, section 51.452(c)(1) 
(93.130(c)(1)), contains two incorrect references to paragraph (a). It 
should instead reference paragraph (b) of section 51.452 (93.130). 
EPA's intent was to require areas not subject to paragraph (b) (ozone 
and CO areas not serious and above or before January 1, 1995) to 
continue using the procedures which satisfy some or all of the 
requirements of paragraph (b) (applying to serious and above ozone and 
CO areas after January 1, 1995) where those procedures have been the 
previous practice of the MPO. The current cross-reference does not make 
sense because it refers to ``General requirements,'' which apply to all 
areas. This proposal would correct the incorrect reference.

X. Conformity SIPs

    A conformity SIP revision consistent with these amendments would be 
required to be submitted to EPA 12 months from the date of publication 
of the final rule. Section 176(c)(4)(C) of the Clean Air Act as amended 
in 1990 allowed States 12 months from the promulgation of the original 
transportation conformity rule to submit conformity SIP revisions. EPA 
believes that it is consistent with the statute to provide states a 
similar time period to revise their conformity SIPs.

XI. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or 

[[Page 44797]]
State, local, or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866. EPA has 
submitted this action to OMB for review. Changes made in response to 
OMB suggestions or recommendations will be documented in the public 
record.

B. Reporting and Recordkeeping Requirements

    This rule does not contain any information collection requirements 
from EPA which require approval by OMB under the Paperwork Reduction 
Act of 1980, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires federal agencies to 
identify potentially adverse impacts of federal regulations upon small 
entities. In instances where significant impacts are possible on a 
substantial number of these entities, agencies are required to perform 
a Regulatory Flexibility Analysis (RFA).
    EPA has determined that today's regulations will not have a 
significant impact on a substantial number of small entities. This 
regulation affects federal agencies and metropolitan planning 
organizations, which by definition are designated only for metropolitan 
areas with a population of at least 50,000.
    Therefore, as required under section 605 of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation 
does not have a significant impact on a substantial number of small 
entities.

D. Unfunded Mandates

    Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
EPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to State, 
local, or tribal governments in the aggregate.
    EPA has determined that to the extent this rule imposes any mandate 
within the meaning of the Unfunded Mandates Act, this final action does 
not include a mandate that may result in estimated costs of $100 
million or more to State, local, or tribal governments in the aggregate 
or to the private sector. This proposal consists of additional 
flexibilities and clarifications. Therefore, EPA has not prepared a 
statement with respect to budgetary impacts.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

40 CFR Part 93

    Administrative practice and procedure, Air pollution control, 
Carbon monoxide, Intergovernmental relations, Ozone.

    Dated: August 17, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR parts 51 and 93 are 
proposed to be amended as follows:

PARTS 51 AND 93--[AMENDED]

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

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

    2. The identical text of Secs. 51.392 and 93.101 is amended by 
adding a definition in alphabetical order to read as follows:


Sec.  .       Definitions.

* * * * *
    Protective finding means a determination by EPA that the control 
strategy contained in a submitted control strategy implementation plan 
revision would have been considered approvable with respect to 
requirements for emissions reductions if all committed measures had 
been submitted in enforceable form as required by Clean Air Act section 
110(a)(2)(A).
* * * * *
    3. The identical text of Secs. 51.394 and 93.102 is amended by 
revising paragraph (b)(3)(i) and adding paragraph (d) to read as 
follows:


Sec.  .       Applicability.

* * * * *
    (b) * * *
    (3) * * *
    (i) Volatile organic compounds and nitrogen oxides in ozone areas;
* * * * *
    (d) Grace period for new nonattainment areas. For areas which have 
been in attainment for either ozone, CO, PM-10 or NO2 since 1990 
and are subsequently redesignated to nonattainment for any of these 
pollutants, the provisions of this subpart shall not apply for 12 
months following the date of final designation to nonattainment for 
such pollutant.
    4. Sec. 51.396(a) is amended by adding a sentence after the second 
sentence to read as follows:


Sec. 51.396  Implementation plan revision.

    (a) * * * Further revisions to the implementation plan required by 
amendments to this subpart must be submitted within 12 months of the 
date of publication of final amendments to this subpart.* * *
* * * * *
    5. Sec. 51.420 is revised to read as follows:


Sec. 51.420  Criteria and procedures: Currently conforming 
transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval. This 
criterion applies during all periods. It is satisfied if the current 
transportation plan and TIP have been found to conform to the 
applicable implementation plan by the MPO and DOT according to the 
procedures of this subpart.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous 
transportation plan or TIP expire once the current plan or TIP is found 
to conform by DOT. The conformity determination on a transportation 
plan or TIP will also lapse if conformity is not determined according 
to the frequency requirements of Sec. 51.400.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that the TCM was included in a 
transportation plan and TIP previously found to conform, and all other 
relevant criteria of this subpart are satisfied.
    6. Section 93.114 is revised to read as follows:


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

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project 

[[Page 44798]]
approval. This criterion applies during all periods. It is satisfied if 
the current transportation plan and TIP have been found to conform to 
the applicable implementation plan by the MPO and DOT according to the 
procedures of this subpart.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous 
transportation plan or TIP expire once the current plan or TIP is found 
to conform by DOT. The conformity determination on a transportation 
plan or TIP will also lapse if conformity is not determined according 
to the frequency requirements of Sec. 93.104.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that the TCM was included in a 
transportation plan and TIP previously found to conform, and all other 
relevant criteria of this subpart are satisfied.
    7. The identical text of Secs. 51.422 and 93.115 are amended by 
adding a sentence to the end of paragraph (a) and by adding paragraph 
(d) to read as follows:


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

    (a) * * * Special provisions for TCMs are provided in paragraph (d) 
of this section.
* * * * *
    (d) TCMs. If the conformity status of the transportation plan or 
TIP has lapsed, a TCM may be considered to satisfy this criterion if it 
meets the requirements of paragraphs (b) and (c) of this section with 
respect to a previously conforming transportation plan and TIP.
    8. The identical text of Secs. 51.428 and 93.118 is amended by 
revising paragraph (b)(1)(ii) to read as follows:


Sec. .       Criteria and procedures: Motor vehicle emissions budget 
(transportation plan).

* * * * *
    (b) * * *
    (1) * * *
    (ii) NOX as an ozone precursor;
* * * * *
    9. Section 51.448 is amended by removing paragraph (g), 
redesignating paragraphs (h) and (i) as (g) and (h), and revising 
paragraphs (a) through (d) and the newly designated paragraph (g) to 
read as follows:


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

    (a) Control strategy implementation plan submissions. (1) The 
transportation plan and TIP must be demonstrated to conform by eighteen 
months from the date of the State's initial submission to EPA of each 
control strategy implementation plan establishing a motor vehicle 
emissions budget. If conformity is not determined by 18 months from the 
date of submission of such control strategy implementation plan, the 
conformity status of the transportation plan and TIP will lapse, and no 
new project-level conformity determinations may be made, until the 
transportation plan and TIP have been demonstrated to conform.
    (2) For areas not yet in the control strategy period for a given 
pollutant, conformity shall be demonstrated using the motor vehicle 
emissions budget(s) in a submitted control strategy implementation plan 
revision for that pollutant beginning 90 days after submission, unless 
EPA declares such budget(s) inadequate for transportation conformity 
purposes. The motor vehicle emissions budget(s) may be used to 
determine conformity during the first 90 days after its submission if 
EPA agrees that the budget(s) are adequate for conformity purposes.
    (b) Disapprovals. (1) If EPA disapproves the submitted control 
strategy implementation plan revision and so notifies the State, MPO 
and DOT, which initiates the sanction process under Clean Air Act 
sections 179 or 110(m), the conformity status of the transportation 
plan and TIP shall lapse 120 days after EPA's disapproval, and no new 
project-level conformity determinations may be made. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (2) Notwithstanding paragraph (b)(1) of this section, if EPA 
disapproves the submitted control strategy implementation plan revision 
but makes a protective finding, the conformity status of the 
transportation plan and TIP shall lapse on the date that highway 
sanctions as a result of the disapproval are imposed on the 
nonattainment area under section 179(b)(1) of the Clean Air Act. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (c) Failure to submit and incompleteness. For areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit or 
submission of an incomplete control strategy implementation plan 
revision, which initiates the sanction process under Clean Air Act 
sections 179 or 110(m), the conformity status of the transportation 
plan and TIP shall lapse on the date that highway sanctions are imposed 
on the nonattainment area for such failure under section 179(b)(1) of 
the Clean Air Act, unless the failure has been remedied and 
acknowledged by a letter from the EPA Regional Administrator.
    (d) Federal implementation plans. When EPA promulgates a federal 
implementation plan that contains motor vehicle emissions budget(s) as 
a result of a State failure, the conformity lapse imposed by this 
section because of that State failure is removed.
* * * * *
    (g) Nonattainment areas which are not required to demonstrate 
reasonable further progress and attainment. If an area listed in 
Sec. 51.464 submits a control strategy implementation plan revision, 
the requirements of paragraphs (a) and (e) of this section apply. 
Because the areas listed in Sec. 51.464 are not required to demonstrate 
reasonable further progress and attainment the provisions of paragraphs 
(b) and (c) of this section do not apply to these areas at any time.
* * * * *
    10. Section 93.128 is amended by removing paragraph (g), 
redesignating paragraphs (h) and (i) as (g) and (h), and revising 
paragraphs (a) through (d) and the newly designated paragraph (g) to 
read as follows:


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

    (a) Control strategy implementation plan submissions.
    (1) The transportation plan and TIP must be demonstrated to conform 
by eighteen months from the date of the State's initial submission to 
EPA of each control strategy implementation plan establishing a motor 
vehicle emissions budget. If conformity is not determined by 18 months 
from the date of submission of such control strategy implementation 
plan, the conformity status of the transportation plan and TIP will 
lapse, and no new project-level conformity determinations may be made, 
until the transportation plan and TIP have been demonstrated to 
conform.
    (2) For areas not yet in the control strategy period for a given 
pollutant, conformity shall be demonstrated using the motor vehicle 
emissions budget(s) in a submitted control strategy implementation plan 
revision for that pollutant beginning 90 days after submission, unless 
EPA declares such budget(s) inadequate for transportation conformity 
purposes. The motor vehicle 

[[Page 44799]]
emissions budget(s) may be used to determine conformity during the 
first 90 days after its submission if EPA agrees that the budget(s) are 
adequate for conformity purposes.
    (b) Disapprovals. (1) If EPA disapproves the submitted control 
strategy implementation plan revision and so notifies the State, MPO 
and DOT, which initiates the sanction process under Clean Air Act 
sections 179 or 110(m), the conformity status of the transportation 
plan and TIP shall lapse 120 days after EPA's disapproval, and no new 
project-level conformity determinations may be made. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (2) Notwithstanding paragraph (b)(1) of this section, if EPA 
disapproves the submitted control strategy implementation plan revision 
but makes a protective finding, the conformity status of the 
transportation plan and TIP shall lapse on the date that highway 
sanctions as a result of the disapproval are imposed on the 
nonattainment area under section 179(b)(1) of the Clean Air Act. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (c) Failure to submit and incompleteness. For areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit or 
submission of an incomplete control strategy implementation plan 
revision, which initiates the sanction process under Clean Air Act 
sections 179 or 110(m), the conformity status of the transportation 
plan and TIP shall lapse on the date that highway sanctions are imposed 
on the nonattainment area for such failure under section 179(b)(1) of 
the Clean Air Act, unless the failure has been remedied and 
acknowledged by a letter from the EPA Regional Administrator.
    (d) Federal implementation plans. When EPA promulgates a federal 
implementation plan that contains motor vehicle emissions budget(s) as 
a result of a State failure, the conformity lapse imposed by this 
section because of that State failure is removed.
* * * * *
    (g) Nonattainment areas which are not required to demonstrate 
reasonable further progress and attainment. If an area listed in 
Sec. 93.136 submits a control strategy implementation plan revision, 
the requirements of paragraphs (a) and (e) of this section apply. 
Because the areas listed in Sec. 93.136 are not required to demonstrate 
reasonable further progress and attainment the provisions of paragraphs 
(b) and (c) of this section do not apply to these areas at any time.
* * * * *


Secs. 51.452, 93.130  [Amended]

    11. The identical text of Secs. 51.452 and 93.130 is amended by 
redesignating paragraph (b)(5) as paragraph (a)(6); and in paragraph 
(c)(1) by revising the references, ``paragraph (a)'' to read 
``paragraph (b)'' in two places.

[FR Doc. 95-21405 Filed 8-28-95; 8:45 am]
BILLING CODE 6560-50-P