APPENDIX

Clean Air Act Section 176(c) and (d)

As Amended by SAFETEA-LU

NOTE:  This document includes Clean Air Act section 176(c) and (d) as
amended by SAFETEA-LU.  EPA and US DOT are providing this document for
informational purposes only as an official version of the revised
section is not yet available.

From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 7, 2003]

[Document not affected by Public Laws enacted between

  January 7, 2003 and February 12, 2003]

[CITE: 42USC7506]

 

TITLE 42--THE PUBLIC HEALTH AND WELFARE

 

CHAPTER 85--AIR POLLUTION PREVENTION AND CONTROL

 

SUBCHAPTER I--PROGRAMS AND ACTIVITIES

 

Part D--Plan Requirements for Nonattainment Areas

 

subpart 1--nonattainment areas in general

 

Sec. 7506. Limitations on certain Federal assistance

(a), (b) Repealed. Pub. L. 101-549, title I, Sec. 110(4), Nov. 15, 1990,


        104 Stat. 2470

(c) Activities not conforming to approved or promulgated plans

    (1) 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 7410 of this title. No metropolitan planning
organization designated under section 134 of title 23, shall give its
approval to any project, program, or plan which does not conform to an
implementation plan approved or promulgated under section 7410 of this
title. The assurance of conformity to such an implementation plan shall
be an affirmative responsibility of the head of such department, agency,
or instrumentality. Conformity to an implementation plan means--

        (A) conformity to an implementation plan's purpose of
eliminating or reducing the severity and number of violations of the
national ambient air quality standards and achieving expeditious 
attainment of such standards; and

        (B) that such activities will not--

            (i) cause or contribute to any new violation of any standard
in any area;

            (ii) increase the frequency or severity of any existing
violation of any standard in any area; or

            (iii) delay timely attainment of any standard or any
required interim emission reductions or other milestones in any area.

The determination of conformity shall be based on the most recent
estimates of emissions, 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.

    (2) Any transportation plan or program developed pursuant to title
23 or chapter 53 of title 49 shall implement the transportation
provisions of any applicable implementation plan approved under this
chapter applicable to all or part of the area covered by such
transportation plan or program. No Federal agency may approve, accept or
fund any transportation plan, program or project unless such plan,
program or project has been found to conform to any applicable
implementation plan in effect under this chapter. In particular--

        (A) no transportation plan or transportation improvement program
may be adopted by a metropolitan planning organization designated under
title 23 or chapter 53 of title 49, or be found to be in conformity by a
metropolitan planning organization until a final determination has been
made that emissions expected from implementation of such plans and
programs are consistent with estimates of emissions from motor vehicles
and necessary emissions reductions contained in the applicable
implementation plan, and that the plan or program will conform to the
requirements of paragraph (1)(B);

        (B) no metropolitan planning organization or other recipient of
funds under title 23 or chapter 53 of title 49 shall adopt or approve a
transportation improvement program of projects until it determines that
such program provides for timely implementation of transportation
control measures consistent with schedules included in the applicable
implementation plan;

        (C) a transportation project may be adopted or approved by a
metropolitan planning organization or any recipient of funds designated
under title 23 or chapter 53 of title 49, or found in conformity by a
metropolitan planning organization or approved, accepted, or funded by
the Department of Transportation only if it meets either the
requirements of subparagraph (D) or the following requirements--

            (i) such a project comes from a conforming plan and program;

            (ii) the design concept and scope of such project have not
changed significantly since the conformity finding regarding the plan
and program from which the project derived; and

            (iii) the design concept and scope of such project at the
time of the conformity determination for the program was adequate to
determine emissions.

        (D) Any project not referred to in subparagraph (C) shall be
treated as conforming to the applicable implementation plan only if it
is demonstrated that the projected emissions from such project, when
considered together with emissions projected for the conforming
transportation plans and programs within the nonattainment area, do not
cause such plans and programs to exceed the emission reduction
projections and schedules assigned to such plans and programs in the
applicable implementation plan.

(E) The appropriate metropolitan planning organization shall redetermine
conformity of existing transportation plans and programs not later than
2 years after the date on which the Administrator—

(i) finds a motor vehicle emissions budget to be adequate in accordance
with section 93.118(e)(4) of title 40, Code of Federal Regulations (as
in effect on October 1, 2004);

(ii) approves an implementation plan that establishes a motor vehicle
emissions budget if that budget has not yet been determined to be
adequate in accordance with clause (i); or

(iii) promulgates an implementation plan that establishes or revises a
motor vehicle emissions budget.

    (3) Until such time as the implementation plan revision referred to
in paragraph (4)(C) is approved, conformity of such plans, programs, and
projects will be demonstrated if--

        (A) the transportation plans and programs--

            (i) are consistent with the most recent estimates of mobile
source emissions;

            (ii) provide for the expeditious implementation of
transportation control measures in the applicable implementation plan;
and

            (iii) with respect to ozone and carbon monoxide
nonattainment areas, contribute to annual emissions reductions
consistent with sections 7511a(b)(1) and 7512a(a)(7) of this title; and

        (B) the transportation projects--

            (i) come from a conforming transportation plan and program
as defined in subparagraph (A) or for 12 months after November 15, 1990,
from a transportation program found to conform within 3 years prior to
November 15, 1990; and

            (ii) in carbon monoxide nonattainment areas, eliminate or
reduce the severity and number of violations of the carbon monoxide
standards in the area substantially affected by the project.

    With regard to subparagraph (B)(ii), such determination may be made
as part of either the conformity determination for the transportation
program or for the individual project taken as a whole during the
environmental review phase of project development.

    (4) Criteria and Procedures for Determining Conformity (A) No later
than one year after November 15, 1990, the Administrator shall
promulgate 

(A) In general—The Administrator shall promulgate, and periodically
update,

criteria and procedures for determining conformity (except in the case
of transportation plans, programs, and projects) of, and for keeping the
Administrator informed about, the activities referred to in paragraph
(1). No later than one year after November 15, 1990, the Administrator,
with the concurrence of the Secretary of Transportation, shall
promulgate 

(B) Transportation Plans, Programs, and Projects–The Administrator,
with the concurrence of the Secretary of Transportation, shall
promulgate, and periodically update, criteria and procedures for
demonstrating and assuring conformity in the case of transportation
plans, programs, and projects. A suit 

(C ) Civil Action to Compel Promulgation—A civil action may be brought
against the Administrator and the Secretary of Transportation under
section 7604 of this title to compel promulgation of such criteria and
procedures and the Federal district court shall have jurisdiction to
order such promulgation.

(BD) The procedures and criteria shall, at a minimum--

             (i) address the consultation procedures to be undertaken by
metropolitan planning organizations and the Secretary of Transportation
with State and local air quality agencies and State departments of
transportation before such organizations and the Secretary make
conformity determinations;

             (ii) address the appropriate frequency for making
conformity determinations, but in no case shall such determinations for
transportation plans and programs be less frequent than every three    
years; the frequency for making conformity determinations on updated
transportation plans and programs shall be every 4 years, except in a
case in which—

	(I) the metropolitan planning organization elects to update a
transportation plan or program more frequently; or

	(II) the metropolitan planning organization is required to determine
conformity in accordance with paragraph (2)(E); and

             (iii) address how conformity determinations will be made
with respect to maintenance plans.

 	(CE) Such procedures shall also include a requirement that each State
shall submit to the Administrator and the Secretary of Transportation
within 24 months of November 15, 1990, a revision to its implementation
plan that includes criteria and procedures for assessing the conformity
of any plan, program, or project subject to the conformity requirements
of this subsection. INCLUSION OF CRITERIA AND PROCEDURES IN SIP.—Not
later than 2 years after the date of enactment of the SAFETEA–LU the
procedures under subparagraph (A) shall include a requirement that each
State include in the State implementation plan criteria and procedures
for consultation required by subparagraph (D)(i), and enforcement and
enforceability (pursuant to sections 93.125(c) and 93.122(a)(4)(ii) of
title 40, Code of Federal Regulations) in accordance with the
Administrator’s criteria and procedures for consultation, enforcement
and enforceability.’’.

(DF) Compliance with the rules of the Administrator for determining the
conformity of transportation plans, programs, and projects funded or
approved under title 23 or chapter 53 of title 49 to State or Federal
implementation plans shall not be required for traffic signal
synchronization projects prior to the funding, approval or
implementation of such projects. The supporting regional emissions
analysis for any conformity determination made with respect to a
transportation plan, program, or project shall consider the effect on
emissions of any such project funded, approved, or implemented prior to
the conformity determination.

    (5) Applicability.--This subsection shall apply only with respect
to—

	(A) a nonattainment area and each pollutant for which the area is
designated as a nonattainment area; and

	(B) an area that was designated as a nonattainment area but that was
later redesignated by the Administrator as an attainment area and that
is required to develop a maintenance plan under section 7505a of this
title with respect to the specific pollutant for which the area was
designated nonattainment.

    (6) Notwithstanding paragraph 5,\1\ this subsection shall not apply
with respect to an area designated nonattainment under section
7407(d)(1) of this title until 1 year after that area is first
designated nonattainment for a specific national ambient air quality
standard. This paragraph only applies with respect to the national
ambient air quality standard for which an area is newly designated
nonattainment and does not affect the area's requirements with respect
to all other national ambient air quality standards for which the area
is designated nonattainment or has been redesignated from nonattainment
to attainment with a maintenance plan pursuant to section 7505a \2\ of
this title (including any pre-existing national ambient air quality
standard for a pollutant for which a new or revised standard has been
issued).



    (7) CONFORMITY HORIZON FOR TRANSPORTATION PLANS.—

     (A) IN GENERAL.—Each conformity determination required under this
section for a transportation plan under section 134(i) of title 23,
United States Code, or section 5303(i) of title 49, United States Code,
shall require a demonstration of conformity for the period ending on
either the final year of the transportation plan, or at the election of
the metropolitan planning organization, after consultation with the air
pollution control agency and solicitation of public comments and
consideration of such comments, the longest of the following periods:

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

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

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

(B) REGIONAL EMISSIONS ANALYSIS.—The conformity determination shall be
accompanied by a regional emissions analysis for the last year of the
transportation plan and for any year shown to exceed emission budgets by
a prior analysis, if such year extends beyond the applicable period as
determined under subparagraph (A).

(C) EXCEPTION.—In any case in which an area has a revision to an
implementation plan under section 175A(b) and the Administrator has
found the motor vehicles emissions budgets from that revision to be
adequate in accordance with section 93.118(e)(4) of title 40, Code of
Federal Regulations (as in effect on October 1, 2004), or has approved
the revision, the demonstration of conformity at the election of the
metropolitan planning organization, after consultation with the air
pollution control agency and solicitation of public comments and
consideration of such comments, shall be required to extend only through
the last year of the implementation plan required under section 175A(b).

(D) EFFECT OF ELECTION.—Any election by a metropolitan planning
organization under this paragraph shall continue in effect until the
metropolitan planning organization elects otherwise.

(E) AIR POLLUTION CONTROL AGENCY DEFINED.—In this paragraph, the term
‘air pollution control agency’ means an air pollution control agency
(as defined in section 302(b)) that is responsible for developing plans
or controlling air pollution within the area covered by a transportation
plan.

    (8) SUBSTITUTION OF TRANSPORTATION CONTROL MEASURES.—

(A) IN GENERAL.—Transportation control measures that are specified in
an implementation plan may be replaced or added to the implementation
plan with alternate or additional transportation control measures

(i) if the substitute measures achieve equivalent or greater emissions
reductions than the control measure to be replaced, as demonstrated with
an emissions impact analysis that is consistent with the current
methodology used for evaluating the replaced control measure in the
implementation plan;

(ii) if the substitute control measures are implemented—

(I) in accordance with a schedule that is consistent with the schedule
provided for control measures in the implementation plan; or 

(II) if the implementation plan date for implementation of the control
measure to be replaced has passed, as soon as practicable after the
implementation plan date but not later than the date on which emission
reductions are necessary to achieve the purpose of the implementation
plan;

(iii) if the substitute and additional control measures are accompanied
with evidence of adequate personnel and funding and authority under
State or local law to implement, monitor, and enforce the control
measures;

(iv) if the substitute and additional control measures were developed
through a collaborative process that included—

(I) participation by representatives of all affected jurisdictions
(including local air pollution control agencies, the State air pollution
control agency, and State and local transportation agencies);

(II) consultation with the Administrator; and

(III) reasonable public notice and opportunity for comment; and

(v) if the metropolitan planning organization, State air pollution
control agency, and the Administrator concur with the equivalency of the
substitute or additional control measures.

(B) ADOPTION.—

(i) Concurrence by the metropolitan planning organization, State air
pollution control agency and the Administrator as required by
subparagraph (A)(v) shall constitute adoption of the substitute or
additional control measures so long as the requirements of subparagraphs
(A)(i), (A)(ii), (A)(iii) and (A)(iv) are met.

(ii) Once adopted, the substitute or additional control measures become,
by operation of law, part of the State implementation plan and become
federally enforceable.

(iii) Within 90 days of its concurrence under subparagraph (A)(v), the
State air pollution control agency shall submit the substitute or
additional control measure to the Administrator for incorporation in the
codification of the applicable implementation plan. Nothwithstanding any
other provision of this Act, no additional State process shall be
necessary to support such revision to the applicable plan.

(C) NO REQUIREMENT FOR EXPRESS PERMISSION.—The substitution or
addition of a transportation control measure in accordance with this
paragraph and the funding or approval of such a control measure shall
not be contingent on the existence of any provision in the applicable
implementation plan that expressly permits such a substitution or
addition.

(D) NO REQUIREMENT FOR NEW CONFORMITY DETERMINATION.— The substitution
or addition of a transportation control measure in accordance with this
paragraph shall not require—

(i) a new conformity determination for the transportation plan; or

(ii) a revision of the implementation plan.

(E) CONTINUATION OF CONTROL MEASURE BEING REPLACED.—A control measure
that is being replaced by a substitute control measure under this
paragraph shall remain in effect until the substitute control measure is
adopted by the State pursuant to subparagraph (B).

(F) EFFECT OF ADOPTION.—Adoption of a substitute control measure shall
constitute rescission of the previously applicable control measure.

    (9) LAPSE OF CONFORMITY.—If a conformity determination required
under this subsection for a transportation plan under section 134(i) of
title 23, United States Code, or section 5303(i) of title 49, United
States Code, or a transportation improvement program under section
134(j) of such title 23 or under section 5303(j) of such title 49 is not
made by the applicable deadline and such failure is not corrected by
additional measures to either reduce motor vehicle emissions sufficient
to demonstrate

compliance with the requirements of this subsection within 12 months
after such deadline or other measures sufficient to correct such
failures, the transportation plan shall lapse.

    (10) LAPSE.—In this subsection, the term ‘lapse’ means that
the conformity determination for a transportation plan or transportation
improvement program has expired, and thus there is no currently
conforming transportation plan or transportation improvement
program.’’.

				

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    \1\ So in original. Probably should be ``paragraph (5),''.

    \2\ See References in Text note below.

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(d) Priority of achieving and maintaining national primary ambient air
quality standards

    Each department, agency, or instrumentality of the Federal
Government having authority to conduct or support any program with
air-quality related transportation consequences shall give priority in
the exercise of such authority, consistent with statutory requirements
for allocation among States or other jurisdictions, to the
implementation of those portions of plans prepared under this section to
achieve and maintain the national primary ambient air-quality standard.
This 

paragraph extends to, but is not limited to, authority exercised under
chapter 53 of title 49, title 23, and the Housing and Urban Development
Act.

(July 14, 1955, ch. 360, title I, Sec. 176, as added Pub. L. 95-95,
title I, Sec. 129(b), Aug. 7, 1977, 91 Stat. 749; amended Pub. L.
95-190, Sec. 14(a)(59), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101-549,
title I, Secs. 101(f), 110(4), Nov. 15, 1990, 104 Stat. 2409, 2470; Pub.
L. 104-59, title III, Sec. 305(b), Nov. 28, 1995, 109 Stat. 580; Pub.
L.104-260, Sec. 1, Oct. 9, 1996, 110 Stat. 3175; Pub. L. 106-377, Sec.
1(a)(1) [title III], Oct. 27, 2000, 114 Stat. 1441, 1441A-44.)

                       References in Text

    Section 7505a of this title, referred to in subsec. (c)(6), was in
the original ``section 175(A)'' and was translated as reading ``section
175A'', meaning section 175A of act July 14, 1955, which is classified
to section 7505a of this title, to reflect the probable intent of
Congress.

    The Housing and Urban Development Act, referred to in subsec. (d),
may be the name for a series of acts sharing the same name but enacted
in different years by Pub. L. 89-117, Aug. 10, 1965, 79 Stat. 451; Pub.
L. 90-448, Aug. 1, 1968, 82 Stat. 476; Pub. L. 91-152, Dec. 24, 1969, 83


Stat. 379; and Pub. L. 91-609, Dec. 31, 1970, 84 Stat. 1770,
respectively. For complete classification of these Acts to the Code, see
Short Title notes set out under section 1701 of Title 12, Banks and
Banking, and Tables.

                          Codification

    In subsecs. (c)(2) and (d), ``chapter 53 of title 49'' substituted
for ``the Urban Mass Transportation Act [49 App. U.S.C. 1601 et seq.]''
and in subsec. (c)(4)(D) substituted for ``Federal Transit Act'' on
authority of Pub. L. 103-272, Sec. 6(b), July 5, 1994, 108 Stat. 1378 

(the first section of which enacted subtitles II, III, and V to X of
Title 49, Transportation), and of Pub. L. 102-240, title III, Sec.
3003(b), Dec. 18, 1991, 105 Stat. 2088, which provided that 

references in laws to the Urban Mass Transportation Act of 1964 be
deemed to be references to the Federal Transit Act.

                               Amendments

    2000--Subsec. (c)(6). Pub. L. 106-377 added par. (6).

    1996--Subsec. (c)(4)(D). Pub. L. 104-260 added subpar. (D).

    1995--Subsec. (c)(5). Pub. L. 104-59 added par. (5).

    1990--Subsecs. (a), (b). Pub. L. 101-549, Sec. 110(4), struck out
subsec. (a) which related to approval of projects or award of grants,
and subsec. (b) which related to implementation of approved or
promulgated plans.

    Subsec. (c). Pub. L. 101-549, Sec. 101(f), designated existing
provisions as par. (1), struck out ``(1)'', ``(2)'', ``(3)'', and
``(4)'' before ``engage in'', ``support in'', ``license or'', and
``approve, any'', respectively, substituted ``conform to an
implementation plan after it'' for ``conform to a plan after it'',
``conform to an implementation plan approved'' for ``conform to a plan
approved'', and ``conformity to such an implementation plan shall'' for
``conformity to such a plan shall'', inserted ``Conformity to an
implementation plan means--'' followed immediately by subpars. (A) and 

(B) and closing provisions relating to determination of conformity being
based on recent estimates of emissions and the determination of such
estimates, and added pars. (2) to (4).

    1977--Subsec. (a)(1). Pub. L. 95-190 inserted ``national'' before
``primary''.

Reference Document for Informational Purposes Only

