UMTED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20460
MEMORANDUM                                                OFF1CE OF
ifMH-rf*-*"

SUBJECT:   Interim Conformity Guidance

FROM:     Richard D.  Wilson, Director
          Office of Mobile  Sources

TO:       Air Management Division Directors
          Regions 1,  3,  5,  9

          Air and Waste  Management Division Director
          Region 2

          Air and Toxics Division Directors
          Regions 7,  8,  10

          Air, Pesticides,  and Toxics Management Divisions
          Directors Regions 4,  6


     Attached is  the  Joint EPA/DOT  Guidance for Determining
Conformity  of Transportation  Plans, Programs,  and Projects
with Clean Air Act Implementation Plans  During Phase 1 of the
Interim Period.   We  have come to  agreement with DOT for the
purpose of  issuing this guidance,  although  several  issues
with  strong  regional  concern   have  not   been  closed
definitively.

     The guidance contains language explaining  that we still
disagree over the application of conformity  to non-federal
projects and  attainment areas.   Until  this is  settled in a
final  rule  on  conformity  criteria  and  procedures   (due
November 15,  1991),  we  anticipate  that DOT  will' apply its
interpretation.   In addition,  discussions of  implementation
of   previous  TCM   commitments  now   quote   the  statute
(transportation  improvement  programs  must  provide  for
expeditious  implementation of TCM's)  rather  than provide
resolution on whether all federally  assistable TCM's actually
must  be  included in  the  TIP,  or whether  a  TIP  can be
considered  to "provide  for" a locally  funded  TCM merely by
not  interfering.  The  distinction  was  important to  some
commenters  but  should  be of  little  immediate  practical
import.   EPA Regional Offices  meanwhile  are  free to press for
actual inclusion  in  the TIP.   Finally,  the guidance states
that N02 and PM10  conformity determinations are  required, but
through November 15,  1991,  EPA, DOT,  and the affected MPO can

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                             -2-
agree that  the Determinations may  be qualitative  in  nature
instead of  quantitative.   Since the  rulemaking  process  will
allow extra time to identify and expand  issues  and will  also
enjoy the benefit  of  public comment on the NPRM,  we  felt  it
was best to leave  these issues unresolved  during Phase 1 and
seek closure in the fina.1  rule.

          Also  included  is  draft   guidance  for   making
conformity  determinations  of  highway and transit projects
which do not involve  FHWA or UMTA,  but do  require some other
type of federal permit, action,  or  approval.   In keeping  with
DOT's preference that they  not  be  involved in  any  way,  this
additional guidance was developed separately by us  (OMS).   We
are only starting to coordinate  this guidance  with your stzff
and other agencies, particularly the Coast  Guard and th«  Army
Corps of Engineers. It should be treated only as  a draft.

Attachment

cc:  Mike Shapiro,  OAR
     Rob Brenner, OPAR

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               U.S.  Environmental  Protection  Agency
                 U.S.-  Department  of  Transportation
           GUIDANCE FOR DETERMINING CONFORMITY OF
    TRANSPORTATION PLANS,  PROGRAMS AND PROJECTS WITH
              CLEAN AIR  ACT IMPLEMENTATION PLANS
              DURING  PHASE  1  OF THE INTERIM PERIOD
1.0 PURPOSE AND LEGAL STATUS

The purpose of this document is to provide guidance  regarding the
criteria  and procedures to  be followed by Metropolitan Planning
Organizations (MPOs), other recipients of funds designated under Title
23  United States Code (U.S.C.) or the Urban Mass Transportation Act (49
U.S.C. 1601  et seq)1, and the United States Department of Transportation
(DOT) in making conformity determinations  regarding transportation
plans2,  programs3, and projects during the first  part  of the interim
period referred to in §176(c)(3)  of the  Clean Air  Act  (the  Act),  as
amended by the  Clean Air  Act Amendments  (the Amendments) of  19904.
These conformity determinations must  be made with respect to the
1 In most urban  areas,  the organization or governmental  unit that performs  the
transportation planning required under §134 of Title  23  U.S.C. is not  designated as
an MPO under state law.  For purposes of clarity in this  guidance, references  to
MPOs will include  these planning units  in their MPO-like role if treated  as an MPO
by DOT.   Where 'other recipients  of funds' is specifically referenced,  it  refers  to
State and local  transportation  officials that  receive funds under Title 23  U.S.C. or
the Urban Mass Transportation  Act.
2Only those transportation  plans  developed  pursuant to Title 23 U.S.C. or the  Urban
Mass  Transportation Act.
3Only those  transportation  improvement programs developed  pursuant to Title  23
U.S.C. or the Urban Mass Transportation Act.
4Unless  otherwise  specified,  all  section  references  throughout  the guidance  will
be to  the Act as amended.

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applicable implementation  plan5  developed to control those  pollutants
for  which national ambient air quality standards  (NAAQS) exist6.

This guidance is  a joint interpretation of  the Act by the United  States
Environmental  Protection Agency (EPA) and DOT  as it  applies during
'Phase  1' of the interim period7.   There is  no statutory requirement  for
this guidance,  and it should,vnot be construed as  regulatory in nature.  It
is not  a final action by either EPA or DOT, but rathei  a first  step  toward
the development  of productive interactions between the transportation
and air quality planning processes.   It is meant to assist MPOs,  other
recipients of funds, and DOT in determining  the  conformity of
transportation  plans,  programs, and  projects  during the  transition from
criteria  and procedures in  use prior to November 15, 1990 (date of
enactment of the 1990 Amendments), to  those promulgated  criteria  and
procedur3s  which  will ultimately govern the  conformity process.  It is
also meant to assist  EPA and State/local  air quality  officials in
reviewing proposed conformity  determinations during the same  period.

This guidance does  not establish  or  affect  legal  rights or obligations.   It
does  not establish a  binding norm and it is  not  finally determinative of
the issues addressed.   Agency  decisions  in any particular case will be
made by applying the applicable  law and regulations to the  specific
facts  of that case.  In  any proceeding  in which  the policy articulated in
this guidance may be applied, the Agencies will  thoroughly consider the
policy's  applicability to the  facts, the  underlying validity of  the policy,
and whether changes  should be made in the policy based on  submissions
made by any person.

It should be noted that in  accordance with the General Savings  Clause
(§193), this  interim guidance does not supersede criteria and
procedures  which may already have been included  in an implementation
plan.   Any  such criteria and procedures must  still be met along with
those contained in this  guidance  until  the  implementation plan  revision
referred to in paragraph (4)(C) is approved by EPA and  DOT.  It also does

5The term 'applicable implementation plan' is defined in §302(q)  as  "the portion
(or  portions)  of the implementation plan,  or most  recent revision thereof,  which
has  been approved under section 110,  or  promulgated under section 110(c).  or
promulgated  or  approved  pursuant  to  regulations promulgated under section
301(d)  and which  implements the  relevant requirements  of this Act".
6NAAQS pollutants  which  are of interest  in any discussion of mobile sources
include ozone and NO2  precursors (VOC and/or NOx), carbon monoxide  (CO), and
particulate matter  (PM10).
7Phase  1 of  the interim  period is defined in  section 2.0  of this guidance.

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not supersede any agreements reached prior to its issuance among EPA,
DOT, and MPOs regarding analytical  methodologies, approval criteria,  or
completed  MPO conformity  findings.
2.0 DEFINITION OF THE INTERIM PERIOD
AND RELATIONSHIP TO THE CONTROL STRATEGY PERIOD
2.1   Definition  of The Interim Period

Section 176(c)(3) of the Act provides criteria that apply "until  such
time as the implementation plan  revision  referred to  in  paragraph  (4)(C)
is approved."   Paragraph (4)(C) refers to  the implementation plan
revision which  States must submit by November  15, 1992, and  which
must  contain specific criteria and procedures for assessing the
conformity  of  transportation plans, programs, and projects.

However,  the  full measure  of  §176(c) conformity requirements  cannot
be applied to  any pollutant until EPA approves the implementation  plan
revision containing  specific strategies for controlling  and  reducing  its
emissions in accordance with §182, §187, or §189 of the Act,  therefore
the actual length of the interim period may extend beyond the time EPA
approves the paragraph (4)(C)  plan revisions.  As a result, there will be
two distinct phases  of  the  interim period:

     Phase 1:   The period between enactment  and  promulgation
     of the  EPA/DOT final rule containing criteria and procedures
     for determining conformity as required by §176(c)(4)(A).   The
     criteria and procedures for determining conformity of
     transportation plans,  programs, and projects during  Phase  1
     is discussed in sections 4, 5, and 6 (respectively)  of this
     guidance.

     Phase 2:   The period between promulgation of the EPA/DOT
     final  rule and EPA approval of the ozone/CO/PMio  control
     strategy implementation plan revisions.  The EPA/DOT final
     rule  will  contain criteria and  procedures  for determining
     conformity of transportation  plans,  programs, and   projects
     during  Phase 2  and, if necessary, any subphases  of  Phase 2.

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Once the control strategy  implementation  plan revisions  and conformity
procedures have been approved by EPA, the full requirements of §176(c)
will apply, and  conformity determinations  of  transportation  plans,
programs, and projects will be  dependent upon the area-wide
transportation emissions  budget for each pollutant established  in the
implementation  plan.  This  control strategy pariod will remain  in  effect
until the area is redesignated as an attainment area,  at which point the
requirements  for conformity determinations  will be based  on the
maintenance  plan approved  for the area in  accordance with  the  criteria
and procedures established in the  EPA/DOT final rule.
2.2  Relationship  of the  Interim and Control Strategy Periods

The  1990 Amendments give States several years to develop new
implementation  plan  revisions  which  contain  sufficient  emission
control  strategies  to  assure attainment by the  applicable deadlines.
The  Amendments  also contain many new provisions and  requirements  to
assist  States  in meeting these  dates, including the §176(c) conformity
review process  (especially  as it applies  in  the case of  transportation
plans,  programs, and  projects).   Although some conformity  requirements
apply immediately upon  enactment, the ultimate purpose and function of
conformity is  best understood  in  terms  of  its  application after States
have revised  their implementation  plans  to  include control strategies
and  emissions  projections8.  Only then  will it be possible to calculate
the contribution of transportation  sources to the reduction  of  emissions
annually until attainment is achieved,  and the  full  requirements of
§176(c)(2) can  be applied  to conformity  determinations  regarding
transportation plans and transportation improvement programs (TIPs).

In most urbanized  areas, the transportation planning process is the
most practical means for  identifying transportation  measures which
benefit  air quality and for  incorporating  these strategies into an area's
transportation plans and  programs so that they conform  to the
applicable implementation plan.  Among  the most  effective  strategies
are those which reduce  the amount of emissions from  single occupant
vehicles.  This can be achieved  in a number of  ways including reducing
the actual number  of trips  made by single occupant vehicles, the
construction  and operation  of better facilities and/or services,   the use
8An  emissions budget will be available for  moderate  and  above areas which submit
new  attainment  demonstrations.   For other areas,  an  emissions budget will  likely
be established as  part  of  the maintenance demonstration,  if not sooner.

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of positive or negative monetary  incentives, or even outright
restrictions on the use of single occupant vehicles.   In the long  run,
local  governments  participating in the transportation planning process
can also influence  the demand for transportation  by their own growth
management policies.

Depending on the severity ^pf the  air quality problem, the local
population  and economic growth forecasts,  the number and character of
non-transportation sources, and local preferences,  the  new attainment
plan may rely to a  greater or lesser extent on transportation control
measures to  reduce single occupant vehicle usage and emissions.  In all
areas, the attainment strategy  will  include  a  specific estimate  or
budget for emissions in  the nonattainment  area  allocated to mobile-
sources.   Should actual  emissions exceed these budgeted levels,
prngresc- toward  attainment would be slower than planned, jeopardizing
attainment by the required  dates  unless changes  were instituted.  In
this  context, the  transportation conformity  review  process  will  serve
three primary functions:  (1) it  will  prevent  changes to  transportation
systems  that exacerbate air quality problems, (2) it will provide  for the
expeditious implementation of  transportation control measures  (TCMs)
in the applicable implementation  plan,  and  (3) most importantly,  the
periodic  review  requirement  [§176(c)(4)(B)(ii)j will  ensure that
transportation plans and HP's  in nonattainment areas will  remain
consistent  with the  budgets established  in the applicable
implementation plan, in  tight  of actual transportation demand due to
population and economic growth.

The transportation  and air  quality planning  processes are part of  the
larger urban  planning process and are influenced by  many dynamic,
sometimes conflicting variables.  It is impossible  to develop
comprehensive long-term plans that precisely predict future conditions,
no matter how carefully  each variable is incorporated,  since local
conditions are  constantly changing to  reflect  emerging  constraints  and
opportunities.  Therefore, it should be expected that future realities and
conditions may not resemble those forecasted in the implementation
plans.  The  conformity  review  process requires the transportation
system plan  to change in order to continue to meet  the  overall
emissions  budget in the applicable implementation  plan, unless that
implementation plan  is revised  to allocate  a greater percentage of  the
area's total allowable emissions to  mobile  sources  or to require a
reduction in  per  vehicle  emissions.  Should  neither  of these courses of
action occur, and the area exceeds its attainment date,  it would be

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reclassified  to  a higher category, thereby providing extra  time  to  reduce
vehicle  emissions,  albeit at a  cost of  more  restrictive  control
requirements on various other sources  of emissions.

The  conformity  of transportation plans and TIPs must be assured
through periodic demonstrations (by law not  less than every  three
years, although  EPA and DOT may specify a  shorter period) that
resultant motor vehicle emissions are  within the  implementation  plan
budget limits.   Failure to provide such  assurance will prevent MPO
endorsement or DOT acceptance of,  and conformity findings for,  new
transportation  plans and TIPs, and will  result in a  loss  of federal  funds
for transportation projects  until  the situation is  corrected.

Once an area has achieved attainment of the NAAQS for any  pollJtant(s)
for which- the  area is currently in a  nonattainment status, it  may
request  formal  redesignation as an attainment area and submit to EPA a
plan  for the maintenance of the  ambient standard(s) which have  been
achieved.   The  maintenance plan will  resemble the attainment plan  by
containing  a budget of allowable emissions allocated to stationary  and
mobile sources.  The conformity review process  will continue during  the
maintenance period using this  budget as a target.

Section  176(c)(3)  allows   transportation-related  conformity
determinations  to be  made for a period of time after enactment with
special interim  criteria and  procedures that are not the same as those
in §176(c)(2).   The special interim criteria recognize both the need for a
transition period to allow for new analyses or revisions of  previously
planned transportation  activities,  and the  temporary lack of an  overall
air quality  improvement strategy consistent  with  the new Clean Air Act
requirements as discussed  above.  It is  not necessary to the purpose of
the Act that this interim guidance become,  in effect, a  requirement for
more accelerated development  of control  strategies.  Congress  clearly
intended that  previously planned transportation control measures be
implemented without delay  during the interim  period.   It  appears to have
accepted the need  for a new planning period for additional measures,
however.   A variation of a year  or two in their implementation will not
affect their long term  impact  too greatly.   However, capital facilities
once constructed can rarely, if ever, be  reversed.  Therefore,  there  is a
need  during the interim period to ensure  that capital  projects which
would be adverse to air quality do not proceed before they can be
considered  by  the  conformity review process  and  modified or mitigated,
unless offsetting projects are  also implemented in the same time

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frame.   The requirement  of  §176(c)(3)(A)(iii) that transportation plans
and  programs  contribute to  emission reductions  will ensure that
adverse  facility changes, if any, are  offset.

Despite the difficulty in defining a  future control  scenario  and its exact
effects on overall emissions, there is no doubt that CO, VOC, NOx, and
participate emissions  from motor vehicles will decline  between  1990
and  1995, 1996, or 2000, in  all areas, taking regional growth  into
account,  due to fleet turnover and new control measures imposed by the
Amendments.   Thus, air quality should not deteriorate in the period it
takes for States to prepare  control strategies that meet the
requirements of the new law, despite the fact that  during  the  interim
period transportation-related  emissions will  not be  required to remain
within  any  pre-determined set limit.
30 APPLICATION

Section 176(c)(1) states that  "No department, agency, or
instrumentality of the Federal Government shall engage  in, support in
any way or provide financial  assistance for,  license or permit,  or
approve, any activity which does  not  conform to an implementation plan
after it has been approved or  promulgated  under section 110.  No
metropolitan  planning  organization designated under  section  134 of
Title 23 U.S.C.,  shall give its  approval to any project, program,  or plan
which does  not  conform to an implementation plan approved or
promulgated under section 110." A project  may be approved by an MPO,
DOT, or any recipient  of  federal  transportation  assistance  under Title
23 U.S.C. or the Urban Mass Transportation Act only  if it  meets the three
tests  outlined in §176(c)(2)(C) for projects  from existing
transportation plans and  TIPs, or if it meets  the requirements  of
§176(c)(2)(D) for case-by-case  approvals  otherwise.  Yet the.title  of
§176  -  "Limitations on  Certain Federal Assistance" -  and  past
interpretations give support to a view that Congress  intended only
federally approved  or  assisted projects to be affected by the provisions
of §176(c).  Likewise,  since §176 is contained in Part D - Plan
Requirements for Nonattainment Areas,  there are arguable ambiguities
as to the geographic areas to  which §176(c) is meant to apply.   EPA and
DOT agree to interpret §176(c)  during Phase 1 as certainly applying to
conformity  determinations for transportation  plans, programs,  and

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federally-assisted9 or approved10 (hereinafter referred  to  as 'federal')
transportation  projects,  with respect to each pollutant  for  which
NAAQS exist in  the areas  designated  as nonattainment for  that
pollutant.   This  guidance will not specifically  address any  criteria and
procedures for NOz and  PMio conformity determinations, instead
deferring  guidance on these pollutants to further  discussions  between
EPA and  DOT and/or the EPA/DOT rulemaking.  In  Phase 1,  conformity
determinations for NOaand PMio may be based upon  a qualitative
assessment jointly agreed upon by the MPO, DOT, and  EPA.

EPA and  DOT do not  yet agree upon an interpretation  of the  Act language
in the case  of projects which do not receive federal  assistance or
approval,  or in the case of pollutant-specific  impacts of projects  in •
areas  which are now  in  attainment with the NAAQS  for that pohutant
ana have not in the past been in nonattainment with that  same  NAAQS.
The Notice of Proposed Rulemaking  (NPRM) will propose that §176(c)
applies to such  projects, but will  also  propose in the alternative that it
does  not  apply, and seek public  comment on the  legal and policy issues
involved.   Meanwhile, this  guidance  is  intended  to clarify procedures for
issues where agreement has  been  reached, and to  expedite
transportation planning action in nonattainment areas in general.

In addition, development of the NPRM will allow EPA and DOT  time to
further examine all issues  in greater detail,  and  as a result, the
EPA/DOT final rule  may  contain supplemental criteria and procedures
for determining  conformity  during Phase 2 of the interim period and the
subsequent  control  strategy period  that differ significantly from  this
interim guidance; affected  parties  are cautioned  that  no  guarantees  can
be  offered concerning any similarities  between guidance in effect
during Phase 1  and that  guidance which will be promulgated as part  of
the final  rule.

By  agreement between EPA and  DOT, this interim guidance does not
explicitly  apply to those  projects which do  not receive  federal
assistance or approval.  However,  both agree that  once into the control
strategy  period,  the  collective prospective  impact of regionally
significant non-federal projects  must be considered  in  periodically
9These  are  projects which receive funding assistance through  the Federal-Aid
Highway program or  the  Federal  mass transit  program.
10Some  transportation projects  may not  utilize  federal assistance, but  may require
FHWA  approval for some  aspect of the project, such  as connection  to an interstate
highway, etc.  Conformity  determinations  are required in  all such  cases.
                                  8

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determining the  conformity  {or  non-conformity) of transportation plans
and  TIPs with  respect to emissions milestones, and  may  prevent all
project  sponsors from implementing  their federal projects.   (The point
of disagreement is  essentially  whether new non-federal  projects would
be able to proceed,  or would be  stopped.)  Therefore, to exclude non-
federal  projects  from  the formal,  federally  imposed conformity process
would not  reduce the  practical  need  to include them within the local
transportation/air quality  planning process, and  MPOs should begin to
consider the emissions and VMT impacts of them as  they  prepare plan
and  program revisions  for the federal  projects.

Where the applicable implementation plan establishes a process of local
conformity  reviews, the present  lack of an EPA/DOT  agreement on t!ie
coverage of non-federal  projects  does not  in any way reduce the
applicability of  the local process from  that provided  by the
implementation  plan.
4.Q SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS FOR TRANSPORTATION PLANS
4.1   Overview

A transportation  plan describes policies,  strategies and  transportation
facilities  of  regional significance within an  urbanized  area based  on
existing and future transportation needs, with due  consideration given
to comprehensive  long-range land use plans and forecasts.  It is
developed through a  cooperative process between State and local
officials and can  be modified as future changes  in policy  dictate.  It is
required  under the regulations  implementing  §134 of Titfe  23  U.S.C., and
§8 of Title 49 U.S.C., and is intended to foster a continuing, cooperative,
and comprehensive planning process; it must  be endorsed by the MPO as
evidence of this process in order for DOT to  accept any TIP or approve
any project.  Under the old §176(c), and  DOT regulations thereunder, DOT
was  required to find  that the  transportation plan conforms to the
applicable SIP  in order to find that the TIP  also conforms.

The  Clean Air  Act requires  transportation  plans  to conform  to
applicable  implementation  plans.  Specifically,  transportation plans
must  meet the requirements set forth in §176(c)(1) and  §176(c)(2)(A),

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except that during Phase  1, the three tests  established in  §176(c)(3)(A)
may be applied instead  of the requirements of  §176(c}(2)(A).  Of the
three criteria listed  in §§176(c){1)(B)(i)-(iii),  EPA and DOT  have agreed
that only  §176(c){1)^B)(ii)  has  meaning  for a transportation plan in the
interim period in a nonattainment area.   In  all  cases, the conformity
determination must be based on the most  recent estimates  of
emissions, and those emissions estimates must be based upon the most
recent population, employment, travel,  and congestion  estimates as
determined by the MPO.  In addition, transportation plans must provide
for the  expeditious implementation of TCMs  from the applicable
implementation plan.  MPOs must make conformity  determinations for
transportation  plans developed  under their  jurisdiction and endorsed by
them prior to their transmittal to DOT.  DOT must, in turn, make a
conformity determination based upon its review of the  MPO conformity
analysis .for the transportation  plan, and  must always seek EPA
comment  before doing so; early consultation  with EPA  regarding
conformity issues will avoid the potential  for  negative comments later
in the process.  During Phase  1, there is no requirement that the
existing transportation plan be modified to  conform  under the  new
provisions  of §176(c), since projects may proceed  without a  conforming
plan as long as they  come from a conforming TIP (see section 5.2
below).  As of November 15, 1991, the lack of a conforming  plan may
become an obstacle to the funding  and approval of new  projects, and
transportation  plan conformity  must have been determined according  to
the new criteria.  MPOs may wish  to take action  on  a new transportation
plan, or to analyze  and reaffirm the conformity of their current  plan, as
soon as possible in  Phase 1 to avoid an interruption in  project funding.

Since there are no federal guidelines regulating format  and content of
existing transportation plans, planning data  on  future projects  have not
been consistently  provided, and  current plans may not  contain  sufficient
specificity, detail,  and quality  necessary to perform a  detailed
emissions analysis.   The transportation  plans now  ready  for  conformity
determinations  may not be  commitments to particular, well-described
options, and may not be easily adapted for analysis  of  air quality
emissions. Not all MPOs  have the immediate ability to perform long-
range emissions forecasts, even if their transportation  plan  is
relatively specific.   Also, during the interim period, there may be  no
applicable  implementation  plan  strategy,  hence no  emission  reduction
milestones to  avoid delaying, although the  requirement  to  contribute to
emission reductions would  still  apply.  On the other hand,  some
transportation  plans are quite  specific, and  some nonattainment areas
                                10

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have  locally adopted air quality  plans  which do contain transportation
control measure commitments  and/or emission reduction  schedules and
milestones.  Because of the  short duration of Phase 1 and the diversity
of local situations,  it does not seem possible, appropriate, or necessary
to the purpose of the Act to require MPOs to add specificity where it  is
now lacking, or to  perform  emissions analyses not previously performed
at the plan stage,  for transportation  plans  reaffirmed or adopted  during
this period.  However, MPOs should be advised that this specificity may
be required of transportation plans under the EPA/DOT final  rule.

Although the exact criteria and procedures will be  established in  the
EPA/DOT final rule, MPOs should be aware that §176(c)(2) treats
transportation  plans and transportation improvement programs with
nearly identical wording.  Also, the purpose of the Act can only oe
served if- conformity determinations are  made for plans and  programs
that  are  realistic with regard  to  resources  for implementation.
Therefore,  EPA and DOT consider it important that  in a longer time
frame, the  transportation plan should be reasonable when compared to
all likely public and private funding sources, that it affirmatively
provides  for the expeditious  implementation  of TCMs in the  applicable
implementation plan, and that  it provides  a reasonable demonstration
that  emissions estimates for at least one reasonably specific and
realistic option shown in it  are  consistent with the emissions reduction
estimates in the  applicable implementation plan over the entire  period
addressed  by  both  the transportation plan  and the applicable
implementation plan, recognizing  that the transportation plan may lack
complete network  detail for  this and other options.
4.2   Conformity  Criteria

Unlike transportation programs  and projects,  no transportation plans
are grandfathered as a result of the Amendments.  During Phase 1, this
situation does not directly affect the ability  of MPOs or other
recipients of funds,  or DOT to proceed with project funding,  approval, or
implementation,  since the Act does not  specifically require  the
existence of a conforming transportation  plan.  However, after
November 15, 1991,  any  transportation project approved by DOT must
either come from a  conforming  transportation  plan and  program, or meet
the requirements of §176(c)(2)(D).   This will require all transportation
plans to be  found to conform to the new Act in order to avoid an
interruption  in project funding.
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The  EPA/DOT final rule will include criteria  and procedures for making
conformity  determinations after November  15,  1991,  and must  also  by
law  contain a  requirement that  conformity  determinations for
transportation  plans (and programs)  be reaccomplished  periodically,
with  a frequency (to be established by EPA and DOT in the final rule) of
not less  than  every three years;  if the  conformity determination  is  not
reaccomplished, approval of. new  projects  (except  those  which the final
rule  categorically  exempts  from  the  conformity process) will  halt.
Transportation  plans endorsed by MPOs and found to conform by the MPO
and  DOT prior to November 15, 1991, and therefore subject to the
interim criteria contained in this  guidance,  will not  immediately be
superseded or voided  as a result  of promulgation of  the  final rule, but
will remain in effect  after promulgation and will expire  no  later than
November  15, 1994, depending upon the frequency for reaccompJishment
as established  in  the  final  rule.   All  initial and reaccomplished
conformity  determinations  of transportation plans after promulgation
of the final rule must meet the criteria  and  procedures established  in
the rule.   All conformity determinations reaccomplished after  the start
of the implementation plan control strategy  period will not only  be
based upon the final  rule criteria  and  procedures,  but will also be
required  to conform to  the applicable  implementation plan's control
strategy  for mobile source emissions.

In light of  the  more thorough reassessment that will occur  within a few
years, EPA and DOT suggest the  following as criteria and procedures to
use  in making conformity determinations  of transportation plans  during
Phase 1:

     1.    The MPO and DOT should determine that the
     transportation plan as endorsed  will  generally conform to the
     applicable implementation plan by  supporting its broad
     intentions of  achieving and maintaining  the NAAQS.

     2.    The MPO and DOT should assure that no goals,
     directives,  recommendations, or projects  identified in the
     transportation plan contradict in a  negative manner any
     specific requirements  or commitments  of the applicable
     implementation plan (e.g., a plan  which  states that a SIP TCM
     will not be implemented, or  which make  it impossible  to
     implement any SIP TCM) for the  area as  it exists at the time
     of the conformity determination.  This assurance is a
     precondition  for the MPO's  own conformity determination
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whenever that  determination occurs.   DOT will also require
written assurance to this effect as part of  the* next annual  (or
biennial) revision of "the  TIP, or as a  separate statement
accompanying the TIP submission.

3.    The MPO and DOT should assure that the plan provides
for  the expeditious implementation of  transportation  control
measures in the applicable implementation  plan.  If the
transportation plan lacks the  necessary specificity,  the MPO
should commit  (by a statement in  the plan or by a separate
document) that  TIP'S developed under  the  transportation plan
will provide  for the expeditious  implementation of  those
TCMs  committed to in the applicable  implementation  plan for
the area as  it  exists at  the time  of the conformity
determination for the transportation  plan.   The details of how
TIP'S  must provide for TCMs are discussed in  section  5.3.2
below.

4.    The MPO and DOT must determine that the
transportation plan contributes to reductions  in annual
emissions in carbon monoxide  and ozone nonattainment areas.
The definition  of  what constitutes a  contribution to
reductions and  the future period which must be considered are
the same as described in  section  5.3.3 below.  The 'build/no-
build' determination of such a reduction must be based upon
reasonable assumptions and logic,  and  may be  based on a
qualitative determination rather than  a quantitative  analysis.
Where they exist, quantitative  methods should be exercised
and the  results considered.

5.    EPA  and DOT agree that  satisfying  §176(c)(1)(B)(ii)  in
the interim period requires that the MPO and DOT must
determine that  the plan does  not  increase the frequency or
severity of the existing violation  of the NAAQS for which the
area is designated as nonattainment.  This can  be  based on a
finding that the plan does not increase emissions of the
relevant  pollutants in  the future,  relative  to emissions over
the same period without the plan.  This is a similar test to
the 'build/no-build' determination  on whether the  plan (and
the TIP) contribute to emissions  reductions,  except that the
criteria is that there be no  increase  (as opposed to  a
requirement for some  finite decrease) in emissions.   Also,  for
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     a transportation plan,  the  "will  not  increase the frequency or
     severity" test applies over  the  entire period of the plan.  As
     explained in  section 5  below,  in contrast, the test  for
     "contributes to reductions" strictly  applies only for the
     period up to  the  attainment deadline.  As with #4 above, this
     determination must be based upon reasonable  assumptions  and
     logic, and may be  based on a  qualitative determination rather
     than a  quantitative analysis.   Where  they exist, 'quantitative
     methods should be exercised and the results considered.
5.0 SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS FOR TRANSPORTATION IMPROVEMENT PROGRAMS
5.1  Overview

The  TIP is a program or schedule of  intended transportation
improvements (or continuations  of  current activities) usually  covering  a
three to five  year period, developed as part of the process of  applying
for Federal funds from  the  Federal  Highway Administration or  the Urban
Mass Transportation Administration. TIP acceptance  by  these  agencies
is  usually a  precondition for  funding,  with conformity a precondition to
TIP  acceptance.   Projects in the TIP  are taken from the transportation
plan  or are consistent with the plan; EPA and  DOT consider it important
that  the TIP  be  reasonable when compared to likely  available funds.
Among the requirements which must be met (section 5.3 below) in order
to  make  a conformity determination  for the TIP during Phase 1,  is a
finding regarding  the total  emissions  impacts from  federal projects  in
the TIP.   MPOs should  be advised that after the start of the control
strategy  period,  the emissions  impacts from non-federal  projects may
influence  the conformity of the TIP with respect to  emissions
milestones, and  analyses  will  need to consider all transportation
projects with regional impacts,  regardless of funding source,  in order
to  determine the cumulative  impact of transportation  related
emissions. It is  advantageous,  but  not required, to begin  analysis of
non-federal  projects  with  potential  regional impacts during  the interim
period so as to  avoid any future problems in making conformity
determinations  of federal projects.
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5.2   TIP'S  Requiring  No Further Conformity Determinations

Section  176(c)(3)(B)(i)  allows transportation  projects  to  proceed, for
12 months after  the  date of enactment without further emissions
analysis provided they come  "from  a transportation program found tc
conform within 3  years  prior to such date of enactment."  This, in
effect, grandfathers those TfPs that  were found to conform and
accepted by DOT between November 15,  1987, and November 15,  1990.
Any TIPs so affected are to be treated as if they  conform to the  new
statutory criteria  until November  15,  1991,  and require  no further
conformity  determination during  Phase  1".  After that time, all  TIPs
must have been developed and approved under the new substantive
criteria contained in section 5.3  of this guidance.  As  with
transportation plans, MPOs may wish to develop and get DOT acceptance
for a new TIP prior to November  15, 1991 so as to avoid an interruption
in project funding.  TIPs accepted by DOT after November 15, 1991 must
also meet any additional criteria which  may be promulgated in the
EPA/DOT final rule.
5.3  Conformity Criteria and Procedures For New TIP'S  and TIP
Amendments

All  TIPs  which are  not grandfathered will  require conformity
determinations in  accordance with these procedures.  In order for  MPOs
and DOT to determine that a TIP conforms to the applicable
implementation plan  during Phase 1, the TIP must meet the
requirements  of §176(c){1) and pass the three tests described in
§176(c)(3)(A).  All TIPs accepted by DOT after enactment, and all  TIPs
endorsed by MPOs and submitted to DOT prior to  enactment but which
did not receive DOT acceptance  by that date now require  a-conformity
determination that meets the requirements of the amended Act.  EPA
1' This  would  also apply to TIPs  in nonattainmeni areas  where the applicable
implementation plan did not  contain TCMs.  Under 23 CFR 770 and the June 12 1980
DOT/EPA procedures  (which treated conformity primarily as  a matter of  TCM
implementation) for conformance  of plans, programs,  and  projects, conformity  did
not  apply  in  nonatlainment areas where the  applicable  implementation  plan  did
not contain TCMs.  Since conformity  was considered as not applying, MPOs and DOT
did not make  individual findings of conformity for such TIPs.  To  deny  them
grandfather ing  now would not  be  fair  or  in  keeping  with  the apparent  inienl of
the Act.   Therefore,  these  plans,  programs, and  projects are  also  grandfathered  for
the same period.
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and  DOT agree on the following criteria and  procedures  for meeting
these tests  and making  a .conformity determination during  Phase 1:

5.3.1   Consistency With Mobile Source Emissions  Estimates

In accordance with §176(c){1)(B), all  conformity  determinations  must
be "based upon the most recent estimates of emissionr.  and  such
estimates shall be determined  from the most recent population,
employment, travel and  congestion estimates as determined  by the
metropolitan  planning organization  or other agency authorized to  make
such estimates."   The TIP documentation  must reference the  published
source of these estimates and the authority of those  sources to make
such  estimates.

Section 176(c)(3)(A)(i) also requires  TIPs to be "consistent  with  the
most  recent  estimates of mobile source emissions."  Since most
currently applicable implementation plans do not  contain projections
beyond 1987, they will  not contain estimates of emissions for the
period covered by the TIP.  Therefore,  an analysis of the emissions
impact of TIP execution  (accounting  for the  emissions  impact of  all
transportation projects)  using  the  MOBILE4  emissions  model12 will be
adequate for TtPs accepted by  DOT after enactment.  EPA is  currently
working to update the MOBILE model, with release  of MOBILE4.1
scheduled for June 1991.  All TIPs whose emissions analysis  work
starts later than 3 months after release of the  model update  must have
a conformity determination based on an emissions analysis using the
updated  model version in lieu of any earlier model versions.  TIPs with
analysis in progress may continue to use MOBILE4.  EPA Regional Office
agreement should be obtained for any exceptions made necessary  by
unusual  local circumstances.

5.3.2  Provision For Expeditious Implementation of  TCMs

Section 176(c)(3)(A)(ii)  requires transportation  plans and TIPs to
"provide  for  the expeditious  implementation  of TCMs in  the  applicable
implementation plan."  This provision does not apply in areas whose
applicable implementation plan does not contain TCMs,  or in  areas newly
12As explained in section 5.3.3 of this  guidance,  during  Phase 1,  the TIP conformity
test is based  on  a comparison of future emission  levels  for  the 'baseline' and 'new
TIP' scenarios, not on the absolute level of  those  future emissions compared to
current  (1990)  emissions.
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designated  as nonattainment for which  no implementation plan
containing  emission control  strategies  exists.

The  definition of  'expeditious implementation1 is  generally  accepted to
mean as  soon as practicable, but in no event longer than the project
would  have taken  to implement under  the original  implementation plan
schedule.  This requires current and future TIPs to provide  for the
implementation of  TCMs which  were committed to  in the applicable
implementation plan but which  have not yet been fully  implemented.

Some TCMs may be non-implementable  as a practical matter because
they are unspecific as  to the degree of  commitment (i.e., absolute vs.
contingent), proposed scale and location(s), unit  of government
responsible for implementation,  source and level  of funding,  etc.  Only
those TCMs which are  described in the applicable  implementation plan
in enough detail to allow  development  of  specific  implementation steps
are required to be  provided for by the  TIP.  Classification of  TCM
references  in the  applicable  implementation plan  as specific or  non-
specific will depend on the wording in  the implementation plan,  and
must be done in consultation and with the  agreement of the air agencies
involved13.

The TIP submission must include the status of each TCM in the
applicable implementation plan,  regardless  of funding source(s).   Such
status  must be discussed with each TIP submission until the TCMs are
fully implemented;  this  discussion  should be a document attached to,
but not part  of the TIP itself.   In  addition, SIP-related transportation
measures  must retain  a high priority, and  funding decisions must
promote  timely implementation  of eligible implementation  plan
measures to the extent that funds are available.  The projects in-the TIP
must not interfere  with or  cause delay in  the implementation of any
TCM.  Any failure  to implement  TCMs, regardless  of funding source and
unit of  government responsible,  must be recognized in  the  emissions
analysis when making  or  renewing conformity determinations14.
     general, the  test  for specificity and reality of  commitment must  be about the
same as would be  applied if EPA  or a citizen were to seek a court order for
implementation of the  specific TCM.
14A11 TCMs in  the applicable  implementation  plan require consideration under
this section and  inclusion in  the status report, except for programs which may
have in  the past  been  called TCMs  (such  as  Inspection/Maintenance)  but which
are  no longer listed in  §108 and are not eligible for  funding under Title 23 U.S.C. or
the  Urban  Mass Transportation  Act.
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If the applicable  implementation plan contains real  commitments  to
sufficiently  specific TCMs which no  longer appear to" be beneficial  to
the air quality goals -of the  area, are not consistent  with the most
recent TCM planning, or generally now appear to  be  illogical or non-
implementable,  then  the first year action in the TIP may consist of a
re-evaluation of any  such TCM,  rather than an immediate
implementation  step  involving  capital  expense.  The TIP  may still be
found to conform if it is accompanied by a commitment and  a resource
plan for the re-analysis, and the second and following  years provide for
capital and other steps of the TCM implementation process,  to be
implemented should  the TCM(s) remain in the implementation plan  after
reevaluation.

Should the re-evaluation find a particular TCM no longer appropriate, a
revision of the  applicable implementation  plan is  the only mechanism to
replace  existing commitments to obsolete  TCMs  with commitments to
current and effective measures.  For any TCM  being re-analyzed, the TIP
submission should include new TCM(s) proposed to be implemented
through a  revision to the applicable implementation plan, evidence  of
coordination with EPA and  appropriate  State and local air quality
agencies in the development of new measures, and a discussion of the
steps being taken to submit a revised implementation plan.  This
information should be included in each TIP until the TCM portion of the
applicable  implementation plan is revised.  The General  Savings  Clause
(§193 of the Act) requires emissions  reductions from  any new TCM  to be
equal to or greater than those attributable  to the  outdated TCM being
replaced in this manner.  Only after EPA approval of the implementation
plan revision containing the new TCM(s) and deleting the obsolete
TCM(s)  may subsequent TIP submissions delete obsolete TCMs.  The
provisions  of this paragraph apply only to  TCMs  eligible  for funding
under Title 23 U.S.C. or the Urban Mass Transportation  Act.,

5.3.3  Contributions  to  Annual Emissions  Reductions

Section 176(c)(3)(A)(iii) requires TIPs developed in ozone or CO
nonattainment  areas to "contribute to annual  emissions  reductions
consistent  with  sections 182(b)(1) and 187(a)(7)."   The language  in the
Amendments does not  specify a contribution of any  particular size,
however.   Legislative history  on the  subject is limited and  provides no
discussion  of the details or intended exclusions, if any,  needed to
develop  a  workable  pass/fail test for specific annual emissions
reductions.
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The  provisions of the Amendments relating to implementation plans
give  the  States up to 36 months to develop and prepare an overall
strategy  to  meet the  emission  reduction timetables specified  in
§182(b){1) and §187(a)(7) for the purpose of  achieving the NAAQS for
ozone and CO.  The States are required to have a completed 1990
inventory available 24 months after enactment; CO and  VOC control
strategies are required 24 and  36 months, respective1-/, after
enactment.   PMio plans must be submitted within 12 months of
enactment.  To  support the development  of the control  strategies, EPA
must issue  guidance on emission reductions  attributable to the new
mobile source measures contained in the  Amendments.  This guidance (in
effect,  a revision to the mobile source emission factor  model) is not
anticipated until  after the  end of Phase 1 of the interim period.   As L-
result,  in the interim period, States and MPOs will not be  able to use the
newly mandated  vehicle and  fuel  controls to demonstrate that aggregate
emissions of a TIP  conform  to a  specific,  decreasing allowable level of
emissions  from  transportation activities.

Therefore, a finding  during Phase 1 that  the  TIP  contributes to
reductions consistent with §182(b)(1) and §187(a)(7) may be made if
the future emissions that result from  implementation  of the TIP are
less  by any amount than the emissions that result in the same future
time  period  from the current  situation.   The  procedure for  performing
this  analysis is  described as follows:

     1.     Define  the 'New TIP'  Scenario:  The  'new TIP'
     scenario is defined  as the future  situation  that will  result
     from implementation of  all federal projects  scheduled  in the
     TIP and any non-federal projects which are required  to  be
     included in  the  TIP  (i.e., non-federal projects which  cannot-
     proceed without endorsement  in the form of inclusion-in the
     TIP) as a result of State or local law  or agreement.  All non-
     federal  projects that have clear funding  sources and
     commitments leading to their  implementation  and completion
     by the  analysis year should be included in the 'new TIP*
     scenario (and  in the 'baseline* scenario also, since in  the
     absence of an  EPA/DOT agreement on whether to treat  non-
     federal  projects as subject  to  conformity, it should be
     assumed that these would proceed even if the  TIP is not
     approved).   The future situation  shall reflect the  best
     estimate of future population,  employment,  travel, and
     congestion  in the area affected by the TIP projects.  Any
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     project  which will not be completed  by the year  of  analysis
     should not be included in the 'new TIP1 scenario.   Projects
     which  obviously-do not  impact regional emissions (including
     those listed in the Appendix  to this guidance) need not be
     included in the 'new TIP1 scenario for  analysis purposes.  MPOs
     should ensure that the design concept15 and  scope16 of all
     projects  is  described in' sufficient detail  to perform the
     emissions analysis described in item  3 below.  The 'new-TIP1
     scenario may not include, for emissions  credit relative to the
     'baseline1 scenario, planned but not yet adopted and/or funded
     future non-TIP TCMs such  as proposed local ordinances.  It
     does include fully adopted  regulatory  TCMs  (e.g., a new
     mandatory employer ridesharing  ordinance) and  fully funded
     non-regulatory TCMs (e.g., funding for ridesharing, or  new
     facilities for  transit and  HOVs) which will  be implemented as
     part of the TIP program over the course of the TIP period.  The
     'new-TIP1 scenario should also include TCMs adopted since
     November 15, 1990, and  any prior TCMs which have been
     amended since that date to  be more  stringent or effective,
     even  if not yet incorporated  into the  applicable
     implementation plan.  (The 'baseline'  scenario excludes these
     recent changes,  so their benefit will  be available  as an offset
     to any emissions increase from new  projects in the TIP.)
     MPOs  should submit reasonable  evidence of the resources
     available for  implementation  of all  projects in the TIP17.

     2.     Define the 'Baseline' Scenario:   The 'baseline'
     scenario  is considered  to  be the future  transportation
     situation  that would result from current  programs,  composed
     of all  in-place facilities  and  on-going travel  demand
     management  (TDM) or transportation  system  management
     (TSM)  activities,  all projects  currently under construction,
15The 'design  concept' shall mean  the type  of facility identified by the  project,
e.g.,  freeway,  expressway, arterial  highway, grade-separated or  mixed-traffic  rail.
transit, etc.
l6The 'design  scope1  shall  mean the  design  aspects  which  will  affect the proposed
facility's impact on regional emissions, usually as it relates to  vehicle or person
carrying  capacity and control,  e.g., number of lanes to be constructed or added,
location  and length  of  project, signalization. access  control,  preferential treatment
for HOVs, etc.
17The promulgated criteria  and procedures in the final EPA/DOT  rule may
establish more  explicit  requirements  for  the showing  that there  will  be funding
for all beneficial  projects  during  Phase 2 and  the  long-term period.
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     projects currently  contained in  the  annual or biennial  funding
     element of a conforming  TIP which will be completed by the
     year of analysis, and" all non-federal  projects that have  clear
     funding sources and commitments  leading toward their
     implementation and  completion  by the year  of analysis,
     except for  those projects so closely relatad  to a new  federal
     project that the local sponsor would not proceed in the
     absence of the federal project.   Projects  which  obviously do
     not impact  regional  emissions  (including  those listed in the
     Appendix to this guidance)  need not be included  in the
     'baseline1  scenario for  analysis  calculation purposes.

     3.    Perform the  Emissions Impact  Analysis:  The
     intent in describing  the 'new-TIP1 and 'baseline'  scenarios  iii
     this way is to  compare the transportation system as a whole
     in  both  cases,  to determine  the impact of  TIP approval.  An
     emissions  analysis must be  performed to estimate the
     differences in the area-wide VOC (for all ozone areas) and  CO
     (for CO areas  with an  area-wide CO problem)  emissions
     between the 'new  TIP'  and  'baseline* scenarios.   The emissions
     analysis for TIP approval should use the locally available
     transportation  models and tools, and must in all  cases be
     adequate to make a reasoned determination  of whether the
     TIP makes a  contribution to emission reductions.18

     The  analysis will  be performed in  the first  milestone  year19
     and in the attainment year.  The Act does not explicitly
     require  a  showing for dates beyond the attainment year, but
     at least for areas with a 1995  or  1996 attainment deadline,
     it is  advisable  to verify that the 'new TIP* scenario does not
     increase emissions  for 5-10 years  beyond the attainment
     date.   The difference in emissions should best be determined
     from  detailed  scenario-specific estimates of  demographic,
     employment, and  transportation variables for  the end-point
     years (e.g., VMT  and traffic speeds), followed  by application
     of MOBILE4.
18Readily available improvements to past  local practices  should  be made wherever
possible.  More rigorous analysis requirements may be developed as part of the
EPA/DOT final rule and  applied to  the remainder  of the  interim period.
19The first milestone year is defined to be 1995 for CO nonattainmeni areas as
described in §l87(a)(7) of the Act.  or 1996 for ozone  nonattainmeni areas  as
described in §l82(b)(l) of the Act.
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     4.     Make  The Conformity  Determination:   The TIP
     contributes to  emissions reductions  if emissions  with  the
     'new TIP' scenario are shown to be less than those with the
     'baseline' scenario for the  two end-point years,  and there is a
     logical basis  for  expecting that emissions from the 'new TIP*
     scenario are  lower than  the  'baseline' scenario for each of the
     intervening years.  The MPO  must consider and address any
     reasons  why  this expectation might not be valid, for example
     a project timing  problem in  which congestion is temporarily
     increased until completion of a later project.

     Any construction-related  measures that cause temporary and
     self-correcting  emissions increases or NAAQS  violations  will
     not by themselves  prevent a conformity  determination,  but
     will be subject to standard  practices  to minimize  pollution
     during construction.
6.0 SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS OF TRANSPORTATION PROJECTS
6.1  General Discussion

For the purposes  of  determining conformity, a  project is defined20
according to §111 (f) of 23 CFR 771.  This section requires  actions
evaluated under the National  Environmental Policy Act to: (1)  connect  to
logical termini and be of sufficient  length to address environmental
matters on a broad scope; (2) have independent utility or independent
significance, i.e., be usable and be a reasonable expenditure  even* if no
additional transportation  improvements in the  area are made;  and (3)
not restrict consideration of  alternatives  for other reasonably
foreseeable  transportation  improvements.

Projects which received all necessary approvals by DOT, the  MPO,  or a
State or local transportation  agency prior  to enactment may proceed
toward  completion without  further conformity determinations  under  the
20This definition of a  project  would also apply to a project as it appears in
discussions  of  plans and  programs.
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Amended Act.  All segments21 of such projects which were considered
in the pre-enactment  approval are also included,  if the segmentation
was for purposes of-funding or construction  only.  DOT  approval for this
purpose  is defined as a  Final Environmental Impact  Statement (FEIS)
with record of decision issued, a  Finding  Of No Significant  Impact
(FONSI),  or a categorical exclusion.

During Phase 1,  all  other federal projects,  and non-federal projects
which require  action by an MPO due to State or local law or agreement
must be  found to conform under  the new  Act using  the  criteria and
procedures in this guidance.   Projects  requiring conformity
determinations may be categorized  as those that do not impact regional
emissions, those that come from conforming TIP'S, and  those  that r.re
not in a  TIP for any reason.  It should be noted that the project-level
conformity determination   may not by itself  remove  the  last obstacle  to
implementation, since in  most cases DOT cannot fund projects that do
not come from an approved and conforming TIP.
6.2  Projects That Do Not  Impact  Regional or Local  Emissions

EPA and DOT agree that certain types of projects (listed in  the  Appendix
to this guidance) obviously have no  impact,  either negative or positive,
on regional CO and VOC emissions and therefore do not require  analysis
of regional impacts.  Most also have no local  CO impact, so CO analysis
is also not a requirement,  except as otherwise noted for three of the
project  types22.   Despite their lack of emissions impacts, during Phase
1 these  projects must be formally  found to conform to  the  applicable
implementation plan in  accordance with  §176(c)(3)  if from  a
grandfathered  pre-enactment TIP, or  (optionally) with  §§176(c)(2)(C)-
(D) provided the area has a  currently conforming TIP.  However, the
previous sentence notwithstanding, DOT  may make  a  categorical
conformity finding for project types on this  list, except  for the  three
identified as possible contributors to new local CO  violations.  The
NPRM for Phase 2 of the  interim  period  and the control strategy period
21 In the FEIS or FONSI. a project is defined  in its entirely  so that its total impacts
may  be determined.   As the  project proceeds toward implementation, it is of I en
split into  smaller segments or TIP line items  for funding and construction
purposes.   However,  there  is no  requirement to  analyze these  segments beyond  the
analysis for the project as defined in the FEIS or FONSI.
22These projects may  be excluded  from emissions analysis when  located in  an
urban planning  area and included in a  transportation plan  or  TIP (see sections  4.2
and 5.3.3  of  this guidance).
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will seek public comment on  a categorical  exclusion from  conformity
review for at least some  of  these projects  unless  contrary  indications
exist  in  specific cases.
6.3  Projects in  TIPs

This category  encompasses all federally assisted or approved projects
that are included in TIPs found to conform during Phase  1  according to
the procedures described elsewhere in this guidance.  These can  be
further  sub-categorized  to  include projects in grandfathered TIPs  (as
defined in section 6.3.1  below) and projects in TIP'S found to conform
since enactment (as described  in section 6.3.2 below).

In order to  make a conformity determination  for projects in this
category, the design concept and  scope  of such projects  must not have
changed significantly  since the TIP from which  they were  derived  was
found to conform.   Projects which are located in a  CO nonattainment
area must also be accompanied by an analysis showing they eliminate  or
reduce  the number and severity of CO NAAQS violations in  the area
substantially affected  by the project."   This  analysis  should extend at
least through the attainment deadline for that area.  Projects may  not
cause  or contribute to any new CO violations in an area  to which
conformity applies for CO; a seemingly new CO violation in  a CO
nonattainment area can  be considered to be merely  a relocation and
reduction of an  existing violation, but only if  it is  reasonably close to
the site(s) of previous violations  that will  be reduced in number or
severity as a result of the project.24

6.3.1   Projects in TIPs  Grandfathered Under Section  176fcM3WBMil

This sub-category includes those  projects which are grandfathered as
part of TIP'S found to conform within three  years prior to  enactment (as
described  in section 5.2 of this guidance).  Section  176(c)(3)(B)(i)
clearly  allows these projects to proceed  during  Phase  1.  All projects

23The CO analysis has in the  past  usually been completed at the HIS stage  of project
development, following approval of  the  TIP.  The Act now allows, but  does not
require,  this analysis to  be completed  prior to TIP  approval, and approved along
with the TIP.  As  the criteria are the same in  either case, it will  be necessary to
have the project defined  with adequate specificity  if the analysis is completed
prior to TIP approval.
24Possible further  mitigation of the relocated  violation should  be addressed  in the
E1S process.
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included in the TIP  are  grandfathered, even if not included in the annual
or biennial funding element.  This may be beneficial  in areas
experiencing  delays  irl adoption of a new  conforming  TIP.  The
grandfathering  provision  expires  November 15, 1991,  after which  time
all projects which have  not  yet received a DOT conformity finding  a. id
NEPA  approval must come from a TIP found to conform under the new
statutory  criteria.

6.3.2   Projects In TIPs Found to  Conform After Enactment

This sub-category includes all projects in TIPs  which are found to
conform after enactment using the criteria and procedures described in
section 5.3 of this guidance or any criteria and procedures prorr-jlgated
after thi? date.
6.4  Projects Not in a TIP For Anv Reason

This category encompasses all  projects that  are within the
nonattainment area but are not included in a conforming TIP  for any
reason.  This category can be further  sub-categorized to include any
project outside the urban planning area but within  the  nonattainment
area (as defined in  section 6.4.1 below), and projects within  the urban
planning  area that have been newly proposed  since  the last TIP was
found to conform (as defined in  section  6.4.2  below).  It also includes
any  project within an urban planning area that  has no conforming TIP  (as
defined in  section 6.4.3 below), although this may be an empty sub-
category during  Phase  1 since all areas should have at least a
grandfathered pre-enactment TIP.

Section  176(c)(2)(D) is the only  statutory  provision  that explicitly
addresses  conformity  criteria for projects not  from a conforming  TIP,
but the general provisions of §176(c)(1) also  apply, and the  provisions
of §176(c)(3)(B) may be used as a guide to statutory intent.   Since
projects  in this  category are  not included in conforming TIPs, they
require analysis similar to that of both TIPs (TCM  implementation and
area-wide  emissions analysis) and projects (localized hot-spot CO
analysis) on a project-by-project basis  during  Phase 1 in order to make
a conformity determination.   All  such  projects must therefore be
accompanied by  a finding that they do not adversely affect the
implementation of TCMs from the applicable implementation  plan, and
an analysis (resembling that for  TIPs as described in  section 5.3.3 of
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this guidance)  of  their effect  on regional emissions.   Criteria  for
regional emissions impacts  are discussed below by  sub-category.
Projects which  are located" in  CO  nonattainment areas  must also be
accompanied by an analysis showing they eliminate or reduce the
number and severity  of CO  NAAQS violations in the  area substantial!*/
affected by  the project.   These projects may not cause or contribute to
new CO violations  in an  area;  to which conformity applies for CO, unless
the new violation  is demonstrated to be merely a relocation and
reduction of an  existing violation and  it is  reasonably close to the
site(s)  of previous violations that  will  be reduced  in number or severity
as  a  result  of the project.25.  MPOs  and project sponsors should take
note  that project-by-project  approvals may not  be much  different  in
analytical requirements or criteria than a TIP amendment  since     ,•
§176(c)(2)(D) requires such projects to be considered together with all
other projects  in a conforming  plan  and program.   Therefore, the long-
term  approach requiring  the  least effort may be  to  include  in the TIP as
many projects of the types  described below as possible.

6.4.1   Projects Outside The  Urban Planning  Area
But Within  The Nonattainment  Area

This sub-category  of  projects does  not  require MPO action  under
existing federal law or DOT  regulations.  As a result, few  if any such
projects have been included in past TIPs, and therefore such projects
usually  cannot be grandfathered.  The Act does not  address  a process by
which to determine the  conformity of these  projects during the  interim
period.   Since there  is no reason not  to allow  projects with favorable
regional and local emissions impacts to proceed toward
implementation, EPA and  DOT agree during  Phase 1 to interpret
§176(c)(2)(D)26  (which  most  directly  addresses  project-by-projact
approvals during  the control strategy period, since it refers to
implementation  plan projections and schedules that exist  only  in that
period)  such that conformity determinations  may be made on a project-
by-project basis  by DOT  using the concept  of  the  interim  criteria  for
TIPs  and projects  specified  in  §176(c)(3).   That is, each project must
25See  Footnote 23.
26EPA  and DOT also interpret §176(c)(2)(D)  to require the existence of a
conforming TIP and transportation plan  in order  for projects to be found to
conform individually under that  section.   Strictly speaking,  the portion of the
nonattainment area  outside  the urban  planning  area is not now  covered by a TIP,
conforming or otherwise.  For Phase  1 of the  interim period the concept of
project-by-project  approvals may be  applied outside the urban  area,  provided (hat
the  urban area  itself has  a conforming  TIP.
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not interfere with TCMs,  must contribute to  regional emissions
reductions, and must reduce  local CO violations.

6.4.2   Projects in an  Urban Area
But Not In The Most  Recent Conforming TIP

This sub-category  includes projects which, for  whatever reason,  require
approval  (and  therefore conformity determinations)  prior to the next
TIP submission or formal TIP amendment but were not included in the
most recent conforming TIP.  EPA and DOT agree to interpret
§176(c)(2)(D)  during  Phase 1  such that conformity  determinations may
be made  on  a project-by-project basis  by the  recipient of funds and DOT
using the concept  of the  interim criteria for TIP's  and projects
specified  in  §176(c)(3).27   This applies only to  new  projects in urban
areas where  the most recent conforming  TIP is a new one found to
conform  after enactment using the criteria  and  procedures in section
5.3 of  this guidance.

The above approval criteria do not apply to new federal projects in
urban  areas  where the most  recent 'conforming* TIP  is still the one
treated as conforming  by  way  of  the  grandfathering provision  (section
5.2) of this guidance.  To  allow such  projects to proceed individually
toward implementation  during  Phase 1  would undermine the  Act's intent
that a  new round of comprehensive planning be completed soon.  They
must therefore be processed  in a TIP revision subject to the full
criteria for TIP conformity determinations  after enactment  (section 5.3
of this guidance), unless  they  fall  into the criteria for projects  that do
not impact air  quality as listed  in the Appendix  to this guidance.   Since
federal funding  in an urbanized area  usually  requires that projects come
from an  accepted TIP, for them  this  restrictive  policy has  a practical
additional impact only for  projects requiring DOT  approval  but  not
funding action.

6.4.3   Projects In Urban Areas With No Conforming TIP

This sub-category includes  projects in urban areas which do not have a
current conforming TIP.  This  could occur in Phase 1  if an MPO's draft
TIP has not been found to conform after enactment and the most recent
pre-enactment  TIP was found to conform prior to November 15,  1987.   It
is possible, even likely, there  are no areas so affected during  Phase  1.
27See  Footnote 25.
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During Phase 1,  no project in  this sub-category may be  found  to
conform, even in light of  the  project-by-project provision in
§176(c)(2)(D), becausa this  provision  requires there to be a conforming
plan and TIP at  the time of project approval.  Therefore,  these  projects
must be held for inclusion in the  next TIP submission  or amendment and
be  analyzed  in the aggregate  with all other projects in the area.
DATE:
                                                June 7,  1991
Ricfiard D. Wilson
Director, Office of Mobile Sources
Environmental  Protection  Agency
                                                      ^
                                            B^Canny
                                       Sputy Assistant Secretary  for
                                       Policy  and International Affairs
                                     Department  of  Transportation
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                           APPENDIX
      PROJECTS THAT DO NOT IMPACT REGIONAL EMISSIONS.
            AND PROJECTS'THAT ALSO  DO NOT RFQUIRE
                     LOCAL CO IMPACT ANALYSIS
Certain transportation  projects eligible for funding under  Title 23  U.S.C.
or the Urban  Mass Transportation Act have no impact on  regional,
emissions.  These  are 'neutral1 projects  that, because of  their nature,
will not affect the  outcome of any regional emissions analyses and add
no substance  to those  analyses.  As a result, DOT and EPA agree that.
during Phase  1,  such  projects may be excluded from the  regional
emissions  analyses required  in order to determine  conformity of  TIPs
(as described in section 5.3.3 of this  guidance).  With  the exception  of
those  projects marked with an asterisk on  the following  list,  DOT  and
EPA also agree  that project level analysis of local CO impacts is not
necessary.   Projects  eligible  for this  treatment  include:
SAFETY
Railroad/highway crossing
Pavement marking demonstration
Hazard elimination program
Safer off-system roads (non-Federal-aid system)
Emergency  relief   (23 U.S.C. 125)
Also specific projects for:
    intersection channelization projects*             noise attenuation
    shoulder improvements                        fencing
    truck size and weight inspection stations           skid treatments
    safety improvement program                    safety roadside rest areas
    intersection signalization projects*               other traffic control devices
    railroad/highway crossing warning devices        truck climbing lanes
    changes In vertical and horizontal alignment*       lighting improvements
    increasing sight distance                       adding medians
    guardrails, median barriers, crash cushions
    pavement resurfacing and/or rehabilitation
    widening narrow pavements or reconstructing bridges (less than one travel  lane)
   These project  types require consideration of possible new  local CO violations.
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MASS  TRANSIT
Purchase of office, shop, and operating equipment for existing facilities
Purchase of operating  equipment for vehicles (e.g., radios, fareboxes, lifts, etc.)
Construction or renovation of power, signal, and communications sys'ems
Operating assistance
Rehabilitation  of transit vehicles
Reconstruction or renovation of transit buildings and structures  (e.g.. rail or bus
   buildings, storage and maintenance facilities, stations, terminals. 2nd ancillary
   structures)
Construction of small passenger shelters and information kiosks
Rehabilitation  or reconstruction of track  structures, track, and trackbed in existing
    rights-of-way
Noise attenuation
Purchase of support vehicles (e.g., autos, vans)
Purchase of new buses and rail cars to replace existing vehicles  or for minor expansions
   of the fleet to provide new service
Construction of new bus and rail storage and maintenance facilities which meet the
   conditions for categorical exclusion specified in 23 CFR 771

AIR  QUALITY
Continuation of ride-sharing and van-pooling  promotion  activities at current levels
Bicycle projects
Pedestrian facilities

OTHER
Engineering to define elements of proposed action or alternatives to assess social, economic,
   and environmental effects
Advance land acquisitions as prescribed in 23 CFR 771
Acquisition of scenic easements
Plantings, landscaping, etc.
Sign removal
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