[Federal Register Volume 65, Number 69 (Monday, April 10, 2000)]
[Rules and Regulations]
[Pages 18911-18918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8712]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-6574-7]
RIN 2060-AI76
Transportation Conformity Amendment: Deletion of Grace Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this final rule we (EPA) are eliminating a provision of the
transportation conformity rule that was overturned by the U.S. Court of
Appeals for the District of Columbia Circuit (Sierra Club v. EPA, et
al., 129 F.3d 137 (D.C. Cir. 1997)). In compliance with the court's
ruling, today's final rule formally deletes the 1995 amendment that
allowed new nonattainment areas a one-year grace period before
transportation conformity began applying.
In addition, we discuss in the preamble four issues that were
raised in
[[Page 18912]]
a Petition for Reconsideration of the original transportation
conformity rule that was finalized November 24, 1993. Although we are
not taking any regulatory action in response to these issues at this
time, the preamble clarifies our policies on the issues raised in the
Petition.
Transportation conformity is a Clean Air Act requirement for
transportation plans, programs, and projects to conform to state air
quality plans. Conformity to a state air quality plan means that
transportation activities will not produce new air quality violations,
worsen existing violations, or delay timely attainment of the national
air quality standards.
Our transportation conformity rule establishes the criteria and
procedures for determining whether or not transportation activities
conform to the state air quality plan.
EFFECTIVE DATE: May 10, 2000.
ADDRESSES: Docket No. A-99-35 contains materials relevant to today's
action and is located at the U.S. Environmental Protection Agency, 401
M Street, SW, Washington, DC 20460 in Room M-1500, Waterside Mall
(ground floor). The docket is open and supporting materials are
available for review between 8:00 a.m. and 5:30 p.m. on all federal
government workdays . You may have to pay a reasonable fee for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Denise Kearns, Transportation and
Market Incentives Group, Transportation and Regional Programs Division,
U.S. Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor,
MI 48105, [email protected]. (734-214-4240).
SUPPLEMENTARY INFORMATION: The text of this rulemaking and certain
supporting documents used to develop the rule also can be accessed and
downloaded from the Internet at http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired date or use Search feature) OR http://www.epa.gov/OMSWWW/ (look in What's New or under the Conformity file
area). Please note that there may be format changes in the documents on
the web due to differences in software.
Regulated Entities
Entities potentially regulated by the conformity rule are those
which adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities include:
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Category Examples of regulated entities
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Local government............. Local transportation and air quality
agencies.
State government............. State transportation and air quality
agencies.
Federal government........... Department of Transportation (Federal
Highway Administration and Federal
Transit Administration).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
rule. This table lists the types of entities that EPA is now aware
could potentially be regulated by the conformity rule. Other types of
entities not listed in the table could also be regulated. To determine
whether your organization is regulated by this action, you should
carefully examine the applicability requirements in Sec. 93.102 of the
conformity rule. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
The contents of this preamble are listed in the following outline:
I. Background
II. How Soon Does Conformity Apply to a New Nonattainment Area?
III. What Are the Effects of Deleting the Grace Period and EPA's
Response to Comments?
IV. What Are the Issues From the Petition for Reconsideration and
EPA's Response to Comments?
A. Fiscal Constraint
B. Horizon Years for Hot-Spot Analyses
C. Assumptions Regarding Regional Distribution of Emissions
D. Credit for Delayed TCMs
V. How Would This Action Affect Conformity SIPs?
VI. Administrative Requirements and EPA's Response to Comments on
Small Business and Environmental Justice Impacts of Rule
A. Executive Order 12866
B. Paperwork Reduction Act
C. Regulatory Flexibility Analysis and EPA's Response to
Comments on Impact of Grace Period Deletion on Small Entities
D. Unfunded Mandates
E. National Technology Transfer and Advancement Act of 1995
F. Executive Order 13045
G. Executive Order 13084
H. Executive Orders on Federalism
I. Executive Order 12898 and EPA's Response to Comments on
Environmental Justice Impacts of Grace Period Deletion
J. Submission to Congress and the Comptroller General
K. Petitions for Judicial Review
I. Background
The original conformity rule was finalized on November 24, 1993 (58
FR 62188). That rule has been subsequently amended on August 7, 1995
(60 FR 40098), November 14, 1995 (60 FR 57179), and August 15, 1997 (62
FR 43780).
In 1998, we entered into a settlement with Environmental Defense
(ED) in response to litigation. In that settlement, we agreed to repeal
the grace period which had been established by the November 14, 1995
amendments and was permitted under 40 CFR 93.102(d) of the conformity
rule. This grace period was overturned by the United States Court of
Appeals in 1997.
We also agreed to respond to four issues raised in a Petition for
Reconsideration that was submitted by the ED, Natural Resources Defense
Council, and Sierra Club. That petition was filed with us on May 26,
1994 and addressed various provisions of the original conformity rule
(58 FR 62188).
The Notice of Proposed Rulemaking for today's rule was published on
November 30, 1999 (64 FR 66832). The comment period for the proposal
ended December 30, 1999.
We received four comments on our proposal. Most commenters
addressed issues relating to the rule's effect in areas subject to
conformity. However, one commenter focused exclusively on our
discussion of the four issues raised in the 1994 petition. Copies of
the comments in their entirety can be obtained from the docket for this
rule (see ADDRESSES).
This docket also includes a complete Response to Comments document
for this rule. We summarize our response to comments below in parts
III, IV and V of this preamble.
II. How Soon Does Conformity Apply to a New Nonattainment Area?
Conformity applies as soon as we formally designate an area
nonattainment. In this final rule we are deleting Sec. 93.102(d), which
had provided a one-year grace period following nonattainment
designation. On November 4, 1997, the U.S. Court of Appeals for the
District of Columbia Circuit overturned Sec. 93.102(d) of the
conformity rule, and ruled that the
[[Page 18913]]
Clean Air Act requires conformity to apply upon designation. Because
the court overturned Sec. 93.102(d), we must delete this provision from
our rules.
Therefore, as soon as a nonattainment designation is effective for
your area, you must have a conforming transportation plan and
transportation improvement plan (TIP) in order to approve
transportation projects. This plan and TIP must conform with respect to
all pollutants for which the area is designated nonattainment. You may
have to delay approving projects until this is done.
III. What Are the Effects of Deleting the Grace Period and EPA's
Response to Comments?
Under today's rule, new nonattainment areas must have a conforming
plan and TIP in place as soon as their designations become effective.
As a practical matter, this requirement has been in effect since
November 14, 1997, when the court ruled to delete the one-hour grace
period.
Two commenters expressed concern that transportation planning
agencies will not have enough time to respond to a new nonattainment
designation and ensure that their plans and TIPs conform. These
commenters were concerned that without a grace period, virtually all
transportation projects in new nonattainment areas could be stopped
upon the effective date of a designation.
We believe that new nonattainment areas will have ample time to
develop a conforming plan and TIP before nonattainment designations are
final and effective. There are generally several opportunities for
transportation agencies to become aware that we are preparing to
designate an area nonattainment, and as a consequence to prepare for
conformity as needed.
For example, on October 25, 1999, we published a proposal to
reinstate the one-hour ozone standard in areas that had previously been
designated nonattainment. In that proposal, we stated that designations
would not become effective until 90 days after we publish the final
rule reinstating our one-hour ozone standard. In these areas, state and
local transportation agencies will have been notified more than six
months in advance of our decision to reinstate the nonattainment
designations.
In addition, we point out that we do pursue a public process before
we formally designate an area as nonattainment for the first time. We
seek recommendations from the state regarding nonattainment
designations and boundaries. If we modify the state's recommendations,
we notify the state at least 120 days before finalizing the
designation.
State and local transportation agencies and air quality agencies
also are working to coordinate their planning processes and avoid
situations that would result in a conformity lapse. We and the U.S.
Department of Transportation (DOT) will work with areas to process
their conformity determinations expeditiously. Although we acknowledge
the timing issues and other concerns expressed by commenters regarding
the deletion of the grace period, we believe that all partners involved
in the conformity process can share information and effectively find
ways to avoid significant delays in transportation projects resulting
from the court's interpretation of the Clean Air Act.
We also note some transportation projects can proceed in the
absence of a conforming plan and TIP, including exempt projects
(Secs. 93.126 and 93.127) and transportation control measures in an
approved state implementation plan. These projects would not be
affected by a new nonattainment designation.
IV. What Are the Issues From the Petition for Reconsideration and
EPA's Response to Comments?
On May 26, 1994, Environmental Defense (ED), Natural Resources
Defense Council, and Sierra Club Legal Defense Fund submitted to us a
Petition for Reconsideration of the November 1993 conformity rule. We
have responded to all issues raised in this petition through previous
conformity amendments, with the exception of four issues addressed in
this preamble. In a 1998 court settlement, EPA and ED agreed to address
these four issues through today's rulemaking. A copy of the 1998
settlement and the full Petition for Reconsideration are included in
the docket for this rulemaking see (ADDRESSES). As proposed, we
are not taking any regulatory action in today's rule in response to the
four issues raised in the 1994 Petition. However, in the discussion
below we do clarify certain existing EPA policies, where we feel such
clarification is necessary to address concerns raised by commenters on
our proposed response to the Petition for Reconsideration.
A. Fiscal Constraint
1. What Is the Issue?
As discussed in the November proposal, in issue 6 of the Petition
for Reconsideration, the petitioners requested that we adopt our own
regulatory language requiring transportation plans and TIPs to be
fiscally constrained, rather than referencing the Department of
Transportation's (DOT's) metropolitan planning regulations. The
existing conformity rule requires plans and TIPs to be fiscally
constrained as required by DOT's metropolitan planning rule at 23 CFR
part 450. These DOT regulations require that proposed projects in plans
and TIPs be consistent with already available or projected sources of
revenue.
2. What Comments Did EPA Receive on Fiscal Constraint, and What Is
EPA's Response?
In response to our proposal, one of the petitioners reiterates
their position that by referencing DOT's planning regulations, we have
unlawfully delegated our rulemaking authority to DOT. Another commenter
on the issue concurs with our belief that it is not necessary for us to
establish our own language regarding fiscal constraint.
As we discussed in the proposal, we believe it is appropriate to
refer to DOT's regulations on fiscal constraint for several reasons.
First, we believe DOT's definition of fiscal constraint substantively
meets the goals of our conformity rule. We also maintain that by
referencing DOT's definition, we have met our procedural obligation to
provide criteria and procedures for determining conformity, as required
under section 176(c)(4)(A) of the Clean Air Act. We disagree with the
commenter's contention that the Clean Air Act directs us to issue
regulations specifically regarding fiscal constraint.
Again, we note that we rely on many other DOT definitions and
rules, including some that are even more fundamental to the
implementation of conformity (e.g., DOT definitions and requirements
for plans and TIPs). We also note that the petitioner's comments agree
with us that DOT's existing fiscal constraint definition is acceptable
for the purposes of conformity.
The commenter's real concern seems to be that future changes to the
definition may be unacceptable, and that the conformity rule will
automatically incorporate any future changes without EPA action. To
remedy this situation, the commenter suggests that we adopt by
reference DOT's existing definition of fiscal constraint and
specifically exclude any changes that may be made in future DOT rules.
Although we agree that we do not have a concurrence role on DOT's
metropolitan planning rule, we point out that there are effective, non-
[[Page 18914]]
statutory mechanisms in place to ensure federal coordination. We are
fully utilizing these mechanisms and actively working with DOT on their
new metropolitan planning regulations, including those provisions that
address the definition of fiscal constraint. DOT is proposing to amend
these regulations under the Transportation Equity Act for the 21st
Century. Petitioners will have an opportunity to comment directly on
any changes DOT may propose to their regulation on fiscal constraint
through DOT's regulatory process.
As described in the proposal, we also believe that it is
appropriate and efficient to rely on DOT's definition of fiscal
constraint. It would be impractical to require plans and TIPs to
satisfy two different definitions of fiscal constraint. If we refer
only to the current definition of fiscal constraint, to ensure
consistency we would have to amend the conformity rule whenever DOT's
regulations change.
In summary, we believe that by referencing DOT's fiscal constraint
definition we are meeting our statutory duty under the Clean Air Act.
We also believe that it is reasonable to rely on the framework for
federal coordination to ensure that DOT's regulations are appropriate
in the conformity context. Lastly, we also believe that wherever it
makes sense, we have a responsibility to provide state and local
agencies involved in transportation conformity with clear and
consistent rules. By referencing DOT's regulations in this case, and
coordinating with DOT on any changes they may be contemplating, we
believe the goals of conformity and the needs of the public will be
effectively met.
B. Horizon Years for Hot-Spot Analyses
1. What Is the Issue?
As discussed in the proposal, issue 9B of the Petition for
Reconsideration requested that we require hot-spot analyses to examine
the 20-year timeframe of the transportation plan. The existing
transportation conformity rule does not clearly specify the horizon for
hot-spot analyses.
2. What Comments Did We Receive on the Hot-Spot Analysis Issue?
One of the petitioners explained that their intention was to
request that EPA require hot-spot reviews of transportation projects to
be consistent with plan and TIP time horizons, and with the time
horizons for emissions analyses required by our general conformity
rule. To ensure that projects do not cause or worsen hot-spots during
the timeframe of the transportation plan, the petitioner suggests that
we require an analysis to be conducted for the year during which peak
emissions from the action are expected.
3. What Is Our Policy on the Horizon for Hot-Spot Analysis?
As discussed in the proposal to this rule, the conformity rule
allows flexibility for areas to decide through the interagency
consultation process how to demonstrate that hot-spots are not caused
or worsened in any area. Although most areas conduct hot-spot analyses
for the year of project completion, many areas also examine other
analysis years in the future. For example, some areas do analyze the
last year of a currently conforming transportation plan, or another
year within the timeframe of that plan, whichever year emissions are
highest.
In response to comments on the proposal, we acknowledge the need to
clarify that the hot-spot analysis must demonstrate that no hot-spots
will be caused or worsened during the timeframe of the transportation
plan. Nonetheless, we continue to believe that the specific year
examined in the hot-spot analysis to make this demonstration should be
decided through interagency consultation, as appropriate to the
individual area, on a case-by-case basis. This is allowed by our
conformity rule. We also reiterate that it is not necessary in all
cases to model the last year of the transportation plan in a hot-spot
analysis. Rather, the hot-spot analysis should examine the year in
which peak emissions are expected, which may not necessarily be the
last year of the conforming plan.
We believe that it would be useful for Sec. 93.116 of the
conformity rule to specify that a demonstration that local violations
will not be caused or worsened should cover the timeframe of the
transportation plan. We agree that without this clarification, it is
difficult for implementers to decide which years to examine in order to
demonstrate that the conformity requirement is satisfied. For example,
some could read the existing requirement to mean that the demonstration
regarding local violations must consider only the year of project
completion, or in contrast that it consider all future years.
Because we need to propose a regulatory clarification before
finalizing it, we are not making any changes to Sec. 93.116 or
Sec. 93.123 in this rule. However, we will propose clarifying
regulatory text on this issue in an upcoming proposal to amend the
conformity rule in response to the March 2, 1999 court decision
(Environmental Defense Fund v. EPA, et al., 167 F. 3d 641, D.C. Cir.
1999). That proposal would codify existing EPA guidance, issued in a
May 14, 1999 memorandum from Gay MacGregor, Director of the Regional
and State Programs Division in the Office of Transportation and Air
Quality, to Regional Air Division Directors, ``Conformity Guidance on
Implementation of March 2, 1999 Conformity Court Decision.'' Based on
the court's decision that guidance outlines our approach for notifying
and providing the public an opportunity to participate in the
conformity process. It also provides criteria for transportation
projects that may proceed during a conformity lapse.
In the interim, until this proposal is advanced, we believe our
interpretation of Sec. 93.116 and Sec. 93.123 is consistent with our
existing conformity rule, and that selection of the year of peak
emissions should continue to be decided through the consultation
process. We and DOT will implement the hot-spot requirements of the
conformity rule as described in this preamble in all future conformity
determinations.
C. Assumptions Regarding the Regional Distribution of Emissions
1. What Is the Issue?
In issue 12 of the Petition for Reconsideration, petitioners
requested that we require metropolitan planning organizations (MPOs) to
demonstrate that regional land use policies and proposed transportation
plans achieve the same spatial distribution of motor vehicle emissions
as was used in the state implementation plan (SIP) for demonstrating
attainment. As discussed in the proposed rule, we had interpreted issue
12 of the Petition for Reconsideration to mean that the petitioners
were in effect requesting that we should always require SIPs to
establish subarea budgets that MPOs would have to conform to.
2. What Are the Conformity Rule's Requirements on the Use of Subarea
Budgets?
Our existing conformity rule does not require states to establish
subarea budgets in their SIPs. However, the conformity rule does
support the development and use subarea budgets where states choose to
do so, and it requires conformity to such budgets if they are
established.
3. What Comments Did We Receive?
One commenter supported our current requirement that subarea
budgets be established only at the state's
[[Page 18915]]
discretion. One of the petitioners commented that we had misconstrued
this issue as presented in the Petition for Reconsideration.
The petitioner states that they did not mean to request that
subarea budgets be established in all cases. Rather, the petitioner
intended to request that we require MPOs to determine whether the
emissions it projects for an area are going to be spatially distributed
in the same way their distribution has been assumed in a SIP, whether
or not there are subarea budgets. The petitioner also suggests that we
develop screening criteria to help MPOs identify what is a significant
magnitude of variance. In cases where the variance is significant, the
petitioner believes we should require MPOs to perform an updated air
quality analysis.
4. What Is Our Response to These Comments?
We do not believe that the Clean Air Act directs us to require
analyses of spatial distribution or regional air quality analyses as a
means for ensuring that transportation activities will not cause or
contribute to new or increased violations, or delay timely attainment.
The Clean Air Act simply requires a comparison with the SIP's estimates
of emissions. We do not believe that the Clean Air Act ever intended
MPOs to routinely perform regional air quality analyses, such as
photochemical grid modeling, as part of a conformity determination.\1\
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\1\ One state has opted to require dispersion modeling for
conformity for its own purposes.
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As a practical matter, we also note the SIP's assumptions about
spatial distribution of emissions would not necessarily be clear to an
MPO unless subarea budgets had been established. This is because not
all SIPs are required to specifically document their assumptions about
spatial distribution, and these assumptions are not always developed or
presented in a form that is useful for other agencies, such as MPOs.
Spatial distributions of emissions in SIPs are generally developed
strictly to serve as an input to the SIP's dispersion modeling, and
these emissions distributions are not designed or required to be used
for any other purpose.
Again, neither the Clean Air Act nor the conformity rule requires
states to develop subarea budgets. We have always interpreted the Clean
Air Act to allow for a single budget for a nonattainment area for a
given criteria pollutant or precursor, although states have the option
to disaggregate and establish subarea budgets at their discretion (see
our General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990 at 57 FR 13448, April 16, 1992).
To conclude, we do not believe that the Clean Air Act directs us to
require the analysis suggested in the petitioner's comments as a means
to ensuring that conformity is properly implemented. We also believe
that the analysis suggested by petitioners would in effect require
states to establish subarea budgets. Although EPA recognizes that there
may be some areas that would benefit by conducting emissions analyses
that rely on subarea budgets, we believe these areas will be identified
through the interagency consultation process and that it is not
necessary for us to issue regulations imposing these kinds of
requirements.
D. Credit for Delayed TCMs
1. What Is the Issue?
As described in issue 15 of the Petition for Reconsideration, the
petitioners believe that where a transportation control measure (TCM)
has been delayed beyond the scheduled implementation date(s) in the
SIP, an area's conformity determination should not be allowed to take
emissions reduction credit for the TCM until after the TCM has actually
been brought into service.
2. What Are the Conformity Rule's Requirements on the Timely
Implementation of TCMs?
Under the current conformity rule, emission reduction credit may be
taken at ``such time as implementation has been assured'' (see
Sec. 93.122(a)(2)). Once implementation has been assured, emissions
analyses can take credit for the TCM in the analysis years during which
the TCM would actually be in service (under the revised schedule). In
the preamble discussion of the November 30, 1999 proposed rule, we
clarified that an assurance of implementation would require at least
the following: (a) Past obstacles to implementation of the TCM have
been overcome; (b) state and local agencies are giving maximum priority
to approval or funding of TCMs over other projects within their
control; (c) funding for the TCM is identified and reasonably expected
to be available; and (d) the legal or regulatory authority necessary to
implement the TCM has been secured or appropriate commitments are in
place.
3. What Comments Did EPA Receive on the Timely Implementation of TCMs,
and What Is EPA's Response?
In response to our discussion on requirements for assuring the
timely implementation of TCMs in the proposal, commenters seemed
satisfied that EPA's existing requirements were appropriate. However, a
petitioner suggested that we include the criteria listed in the
November 1999 proposal as a regulatory definition for assurance of
implementation.
EPA does not believe that it is necessary to amend the conformity
rule to include such a regulatory definition. We believe that
Sec. 93.113 of the conformity rule as written is clear, and that this
preamble is an appropriate place to elaborate on the rule. We note that
a previous preamble discussion on the timely implementation of TCMs (58
FR 62197, November 24, 1993) has provided additional guidance on our
implementation of the conformity rule to date. EPA and DOT have
effectively used this 1993 preamble discussion to implement conformity,
and we will continue to do so with the language in today's preamble.
V. How Would This Action Affect Conformity SIPs?
Clean Air Act section 176(c)(4)(C) requires states to submit
revisions to their SIPs in order to include the criteria and procedures
for determining conformity.
If we approved your area's conformity SIP and it includes a
provision for a one-year grace period (Sec. 93.102(d)), that provision
cannot be implemented. This has been the case ever since the November
4, 1997, court decision, which found such provisions to be inconsistent
with the Clean Air Act. Future conformity SIP submissions may not
include Sec. 93.102(d).
If your area has submitted a conformity SIP to us that contains
this provision (and we have not yet approved the conformity SIP), we
will not approve such a provision as part of the SIP.
VI. Administrative Requirements and EPA's Response to Comments on
Small Business and Environmental Justice Impacts of Rule
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines significant
[[Page 18916]]
``regulatory action'' as one that is likely to result in a rule that
may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This rule does not impose any new information collection
requirements from EPA which require approval by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq. An Agency may not conduct
or sponsor, and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
C. Regulatory Flexibility Analysis and EPA's Response to Comments on
Impact of Grace Period Deletion on Small Entities
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, requires the agency to
conduct a regulatory flexibility analysis of any significant impact a
rule will have on a substantial number of small entities. Small
entities include small businesses, small not-for-profit organizations
and small government jurisdictions. EPA has determined that today's
regulations will not have a significant impact on a substantial number
of small entities.
One commenter questioned our determination that the proposal to
delete the grace period will not have a significant impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act (RFA). We found no such impact because the
conformity rules only apply directly to Federal agencies and
metropolitan planning organizations (MPOs), which by definition are
designated only for metropolitan areas with population of at least
50,000 and thus do not meet the definition of small entities under the
RFA. The commenter alleged that both the RFA, the courts, and our own
implementing guidance require us to consider the indirect impacts of a
proposed rule as well.
We do not agree with the commenter that the agency must consider
the indirect impacts of a regulation under the RFA. EPA has
consistently interpreted the RFA as requiring the agency only to assess
the impacts of proposed rules on the small entities directly regulated
by the proposed rule, and this position has been upheld by the courts.
See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir.
1985) (agency's certification need only consider the rule's impact on
entities subject to the requirements of the rule); American Trucking
Associations, Inc., et al., v. EPA, et al., 175 F.3d 1027 (D.C. Cir.
1999) (court has consistently interpreted RFA to impose no obligation
on agency to assess impacts on entities it does not regulate).
In addition, the commenter misreads EPA's guidance concerning
consideration of indirect impacts. The sentence the commenter quotes
from EPA's guidance directs agency staff to consider indirect impacts
as part of any broader economic analysis conducted for the rule, such
as a Regulatory Impact Analysis if one is conducted. However, the
immediately preceding sentence of the guidance clarifies that if a rule
is applicable only to large entities but indirectly impacts small
entities, the agency can still certify no significant impact on small
entities under the RFA. See Revised Interim Guidance for EPA
Rulewriters: Regulatory Flexibility Act, March 29, 1999, p. 17. In any
event, the document to which the commenter refers is only guidance; it
does not establish any legally binding requirements.
It is also clear that the conformity rule applies directly only to
federal agencies and MPOs and does not directly regulate small
entities, such as the road builders represented by the commenter. These
entities will only be adversely effected by the deletion of the grace
period if DOT and the MPOs fail to develop a conforming transportation
plan and program by the effective date of a nonattainment designation.
In light of the advance warning areas will have of pending designations
during the notice and comment period, and the delayed effective date
EPA intends to provide for such designations, EPA believes that DOT and
MPOs will be able to develop conforming plans and programs in a timely
fashion.
Finally, the commenter's allegation is incorrect that the court
which ordered EPA to delete the grace period determined that such a
change would adversely effect small entities. The court in Sierra Club
did find that the fact that an intervening governmental agency could
alleviate any potential impact on private individuals was not
sufficient to deprive such individuals of standing to challenge the
grace period in court. However, the standard for showing harm
sufficient to support legal standing to sue has no bearing on the
impact necessary to mandate a finding of significant impacts under the
RFA. The RFA only requires an agency to assess the impacts of a
proposed rule on entities directly subject to the proposed rule. The
analysis under the RFA need not cover any entities not directly subject
to the proposed rule notwithstanding any indirect impacts that may
result to other entities, regardless of whether any such impacts could
support legal standing to challenge the rule.
EPA therefore concludes that it correctly interpreted the RFA and
correctly found that the proposal to delete the grace period would not
have a significant impact on a substantial number of small entities.
Therefore, as required under section 605 of the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., I certify that this rule will not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules
[[Page 18917]]
with ``Federal mandates'' that may result in expenditures to State,
local, and tribal governments, in the aggregate, or to the private
sector, of $100 million or more in any one year. Before promulgating an
EPA rule for which a written statement is needed, section 205 of the
UMRA generally requires EPA to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, most
cost-effective or least burdensome alternative that achieves the
objectives of the rule. The provisions of section 205 do not apply when
they are inconsistent with applicable law. Moreover, section 205 allows
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before EPA establishes any regulatory requirements that
may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Furthermore, this rule simply formalizes what
the court has already decided as a legal matter, and which is already
being implemented in practice.
This rule affects only those areas that are newly designated as
nonattainment, and it simply applies conformity one year earlier than
our previous rule had required. Therefore, this rule could require a
limited number of areas to perform perhaps one additional
transportation plan/TIP conformity determination each.
A 1992 DOT survey of metropolitan planning organizations (MPOs)
found that most MPOs spend less than $50,000 per transportation plan/
TIP conformity determination. The largest MPOs (serving a population
over one million) spent up to $250,000. Thus, even if EPA were to
designate 200 areas as nonattainment in one year and each one incurred
the maximum costs, the expenditures would not exceed $100 million.
Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
E. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
F. Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
economically significant within the meaning of Executive Order 12866.
G. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
The Clean Air Act requires conformity to apply in nonattainment and
maintenance areas, and the U.S. Court of Appeals for the District of
Columbia Circuit has determined that the Clean Air Act requires
conformity to apply immediately upon nonattainment designation. As a
result, this regulatory change is required by statute. Furthermore,
today's rule would not significantly or uniquely affect the communities
of Indian tribal governments. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.
H. Executive Orders on Federalism
Executive Order 13132, Federalism (64 FR 43255, August 10, 1999),
revokes and replaces Executive Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental Partnership). Executive Order 13132
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' is defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, EPA may
not issue a regulation that has federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the regulation. EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency
[[Page 18918]]
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's Prior consultation with State and local officials,
a summary of the nature of their concerns and the Agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft final rule with federalism
implications to OMB for review pursuant to Executive Order 12866, EPA
must include a certification from the Agency's Federalism Official
stating that EPA has met the requirements of Executive Order 13132 in a
meaningful and timely manner.
This final rule, which is required by statute, will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The Clean Air Act requires
conformity to apply in nonattainment and maintenance areas, and the
U.S. Court of Appeals for the District of Columbia Circuit has
determined that the Clean Air Act requires conformity to apply
immediately upon nonattainment designation. As a result, this rule is
codifying in regulation the statutory interpretation by the court that
is currently in effect. Consequently, this rule is required by statute,
and by itself will not have substantial impact on States. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
I. Executive Order 12898 and EPA's Response to Comments on
Environmental Justice Impacts of Grace Period Deletion
One commenter indicated that we failed to consider the
disproportionate impact the deletion of the grace period would have on
minority and low income groups as required by Executive Order 12898 on
environmental justice. The commenter argued that we recently found that
minorities and low income populations were disproportionately
represented in nonattainment areas, and that we are required by the
Executive Order to consider the economic impact on such populations of
job loss resulting from deletion of the grace period.
We do not agree that Executive Order 12898 requires us to consider
the economic impact of the grace period deletion on minorities and low
income populations in this case. The Executive Order only requires
agencies to assess adverse impacts on minorities and low income
populations where the action the agency is taking will cause
disproportionate human health or environmental impacts on such
populations. In this case the regulatory action we are taking to delete
the grace period from our conformity regulations will not have such
impacts, since we are only formally correcting our regulations to
reflect the action taken by the United States Court of Appeals in 1997.
Any potential adverse impacts on minority and low income populations
resulting from deletion of the grace period were caused by the court
when it found the grace period to be illegal and overturned it. Since
the court decision in 1997, the grace period has effectively been
nullified and any areas newly redesignated to nonattainment have been
subject to conformity requirements immediately upon the effective date
of any redesignation. In addition, since this deletion is mandated by
the court's ruling, we could not effectively address any potential
adverse impacts from EPA action even if an environmental justice
analysis disclosed any.
J. Submission to Congress and the Comptroller General
Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to the publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C
804(2).
K. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 9, 2000. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review, nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceeding to enforce its requirements. (See section 307(b)(2) of the
Administrative Procedures Act.)
List of Subjects in 40 CFR Part 93
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Nitrogen Dioxide, Ozone, Particulate matter, Transportation, Volatile
organic compounds.
Dated: March 31, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 93 is amended
as follows:
PART 93--[AMENDED]
1. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Sec. 93.102 [Amended]
2. In Sec. 93.102, paragraph (d) is removed.
[FR Doc. 00-8712 Filed 4-7-00; 8:45 am]
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