Responses to Comments Not Addressed in the Preamble to the Final Rule:

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

December 20, 2007

Docket ID No. EPA-HQ-2006-0612

Comment:  Two commenters stated that they are concerned with the high
number of actions that trigger the need for a conformity determination,
including minor changes to a transportation plan.  The commenters urged
EPA to consider reassessing when conformity is required.

Response:  The transportation conformity rule requires conformity to be
determined according to the requirements in the Clean Air Act.  Because
these requirements are found in the statute, it is not within EPA’s
authority to reassess when conformity is required.  

Comment:  Two commenters supported EPA’s proposed revision to the
regulations to implement a conformity lapse grace period, but disagreed
with certain aspects of EPA’s rationale.  In the preamble of the
proposed rule, EPA indicated there could be ambiguity in applying the
lapse grace period if the transportation plan and TIP have expired for
planning reasons.  However, these commenters thought that there was no
ambiguity in this case and that the lapse grace period would apply.  

Response:	EPA is finalizing the provisions implementing the conformity
lapse grace period as proposed, and as supported by these commenters. 
EPA agrees that Congress intended to allow conformity requirements to be
satisfied for projects during the lapse grace period even if there is
not currently conforming transportation plan and TIP.  See EPA’s
rationale in the final rule preamble for further information.

Comment:	One commenter opined that any restrictions on the use of the
conformity lapse grace period would contradict SAFETEA-LU, but did not
elaborate on whether or not they believed EPA’s proposal created
restrictions.  

Response:	EPA is finalizing the lapse grace period as proposed,
consistent with the statute.  The final rule relies on the preamble to
the proposed rule, which provides EPA’s rationale and interpretation
of the statutory language in Clean Air Act 176(c)(9) and (10).  

Comment:	Two commenters supported the provisions that allow the
conformity timeframe to be shortened, but opined that because a
transportation plan covers a period of at least 20 years or longer, it
is difficult to forecast future emissions in later years.  These
commenters also stated that MPOs are not allowed to account for emission
reduction strategies that will be developed during the 20-year timeframe
covered by the transportation plan.  

Response:	EPA is finalizing the provisions for shortening the conformity
timeframe as proposed, for the reasons described in the final rule. 
However, EPA disagrees with the statement that it is difficult for MPOs
to forecast emissions 20 years into the future.  MPOs already have the
data and models needed to estimate future transportation activity and
emissions.  

	Second, MPOs are allowed to account for any emission reduction
strategies that will be phased in during the 20-year period if the
strategies meet the requirements of 40 CFR 93.122(a).  For example, MPOs
can include the future emission reductions of an EPA regulation if that
regulation has been promulgated by EPA.  Given that conformity
determinations are required periodically, MPOs have the opportunity to
include new information into the conformity process as it arises.

Comment:  One commenter did not support the concept of hot-spot analyses
for projects in general, but did not oppose the particular flexibility
offered by the proposal for categorical hot-spot findings for projects
in CO areas.  

	This commenter believed that passing the SIP budget test should be
sufficient to show conformity and project-level analyses are
unnecessary.  This commenter also asserted that hot-spot analyses should
never be required in counties without urbanized areas because they lack
the population size and density needed to make alternatives to road
building, such as public transit, possible.  

Response:  Meeting SIP budgets is one aspect of transportation
conformity, but does not satisfy all of the Clean Air Act’s
transportation conformity requirements.  The Clean Air Act’s
requirement to not cause or contribute to violations of the national
ambient air quality standards applies to projects as well as
transportation plans and programs.  These requirements apply in
nonattainment and maintenance areas, regardless of whether areas are
urban or rural, or whether alternate travel modes are available.   

Comment:  One commenter indicated that EPA’s rulemaking should have
been limited to addressing only those conformity provisions affected by
SAFETEA-LU, rather than addressing CO hot-spots as well.  

Response:  EPA disagrees, and believes it is appropriate to address
other conformity issues as necessary to implement the conformity
program.  Consolidating issues into one rulemaking whenever possible
expedites the implementation of other conformity provisions, creates
efficiency for the regulated community, and creates rulemaking
efficiencies that save taxpayer dollars. 

Comment:  One commenter requested that EPA and FHWA take action to
reduce the impact from transportation on global climate change.  The
commenter provided several statistics to support this request.  The
commenter stated that many major urban areas have demonstrated
leadership by setting goals that reduce their contribution to climate
change.  The commenter suggested steps that the federal government can
take to help state and local governments, including requiring state
transportation plans to include greenhouse gas inventories and goals. 
The commenter also believed that funding decisions for federal highway
projects should consider reductions in greenhouse gases.  The commenter
stated that EPA and FHWA should create a national plan that positively
impacts the role of transportation on global climate change.  Finally,
the commenter opined that these actions will not only reduce greenhouse
gas emissions but also reduce criteria pollutant emissions and help meet
national security goals to import less foreign fuels.

Response:  EPA is adopting transportation conformity regulations to
implement SAFETEA-LU’s amendments to the Clean Air Act, and therefore,
this comment is outside the scope of this rulemaking.  For more
information about EPA’s climate change programs, see our website at:  
 HYPERLINK "http://www.epa.gov/climatechange/" 
http://www.epa.gov/climatechange/  . 

Comment:  One commenter expressed concern that modeling and assumptions
used in conformity may not be accurate.  This commenter also noted that
transportation plans cover long timeframes and are updated frequently,
while SIPs cover shorter periods of time and are updated infrequently. 
The commenter was concerned that data and models used for conformity
could differ from those used to develop SIP budgets.  The commenter
opined that more flexibility in passing conformity may be a better
solution than reducing the timeframe covered by conformity
determinations.  The commenter believed that most conformity lapses
occur because an area cannot meet a deadline rather than because of an
air quality issue.

Response:  EPA is adopting the final rule to implement SAFETEA-LU’s
conformity amendments to the Clean Air Act, including the provision to
allow MPOs to shorten the timeframe covered by a conformity
determination.  This provision is in the statute, and EPA is unable to
replace it with a different flexibility that is not included in the
statute.  

		Docket ID No. EPA-HQ-2006-0612

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