[Federal Register Volume 67, Number 151 (Tuesday, August 6, 2002)]
[Rules and Regulations]
[Pages 50808-50817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19797]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-7256-3]
RIN 2060-AJ70
Transportation Conformity Rule Amendments: Minor Revision of 18-
Month Requirement for Initial SIP Submissions and Addition of Grace
Period for Newly Designated Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is promulgating two minor revisions to the transportation
conformity rule. Transportation conformity is required by the Clean Air
Act to ensure that federally supported highway and transit project
activities are consistent with (``conform to'') the purpose of a state
air quality implementation plan (SIP). Conformity to the purpose of the
SIP means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the national ambient air quality standards. EPA's transportation
conformity rule establishes the criteria and procedures for determining
whether transportation activities conform to the state air quality
plan.
First, today's final rule will implement a Clean Air Act amendment
that provides a one-year grace period before conformity is required in
areas that are designated nonattainment for a given air quality
standard for the first time. This Clean Air Act amendment was enacted
on October 27, 2000. Although the grace period is already available to
newly designated nonattainment areas as a matter of law, EPA is today
incorporating the one-year conformity grace period into the conformity
rule.
Second, today's final rule will change the point by which a
conformity determination must be made following a State's submission of
a control strategy implementation plan or maintenance plan for the
first time (an ``initial'' SIP submission). Today's rule requires
conformity to be determined within 18 months of EPA's affirmative
finding that the SIP's motor vehicle emissions budgets are adequate.
Prior to today's action, the conformity rule required a new conformity
determination within 18 months of the submission of an initial SIP.
This change to the conformity rule better aligns when the 18-month
requirement for conformity to initial SIP submissions is implemented,
so that state and local agencies have sufficient time to redetermine
conformity when initial SIPs are submitted and after EPA finds the SIP
budgets adequate.
EFFECTIVE DATE: This final rule is effective on September 5, 2002.
ADDRESSES: Materials relevant to this rulemaking are in Public Docket
A-2001-12 located at the U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460 in Room M-1500, Waterside Mall
(ground floor). Ph: 202-260-7548. The docket is open and supporting
materials are available for review between 8 a.m. and 5:30 p.m. on all
federal government workdays. You may have to pay a reasonable fee for
copying docket materials.
This final rule is available electronically from EPA's Web site.
See SUPPLEMENTARY INFORMATION for information on accessing and
downloading files.
FOR FURTHER INFORMATION CONTACT: Angela Spickard, State Measures and
Conformity Group, Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, [email protected], (734) 214-4283.
SUPPLEMENTARY INFORMATION: You can access and download today's final
rule on your computer by going to the following address on EPA's
Internet Web site: http://www.epa.gov/otaq/traq (Once at the site,
click on ``conformity.'').
Regulated Entities
Entities potentially regulated by the transportation conformity
rule are those that 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 affected by this action include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Local government............. Local transportation and air quality
agencies, including metropolitan
planning organizations.
State government............. State transportation and air quality
agencies.
Federal government........... Department of Transportation (Federal
Highway Administration (FHWA) and
Federal Transit Administration (FTA))
and EPA.
------------------------------------------------------------------------
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 of which EPA is aware that
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 40 CFR 93.102 of
the transportation 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. One-year Conformity Grace Period for Newly Designated
Nonattainment Areas
III. Conformity Determinations for Initial SIP Submissions
IV. What Comments That Addressed Topics Other Than Those Covered in
This Rulemaking Did We Receive?
V. How Does Today's Final Rule Affect Conformity SIPs?
VI. Administrative Requirements
I. Background
Transportation conformity is required under section 176(c) of the
Clean Air Act (42 U.S.C. 7506(c)) to ensure that federally supported
highway and transit project activities are consistent with (``conform
to'') the purpose of a state air quality implementation plan (SIP).
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the national ambient air
quality standards. EPA's transportation conformity rule establishes the
criteria and procedures for determining whether transportation
activities conform to the state air quality plan.
EPA first published the transportation conformity rule on November
24, 1993 (58 FR 62188), and made subsequent minor revisions to the rule
in 1995 (60
[[Page 50809]]
FR 40098, August 7, 1995, and 60 FR 57179, November 14, 1995). On
August 15, 1997, however, EPA published a comprehensive set of
amendments that clarified and streamlined language from the 1993
transportation conformity rule and 1995 amendments (62 FR 43780). Since
the publication of the 1997 rule, we made one additional minor revision
to the conformity rule in 2000 (65 FR 18911, April 10, 2000).
As described in the October 5, 2001, proposal to this final rule
(66 FR 50954), EPA's 1995 conformity rule provided a one-year
conformity grace period to areas that were designated nonattainment for
a given air quality standard for the first time (Sec. 93.102(d) of the
November 14, 1995, final rule; 60 FR 57179). However, this provision
was challenged by the Sierra Club under the Clean Air Act as amended in
1990, and the U.S. Court of Appeals for the District of Columbia
Circuit overturned the grace period on statutory grounds on November 4,
1997 (Sierra Club v. EPA, et al., 129 F. 3d 137, D.C. Cir. 1997). As a
result of the court's decision, the one-year conformity grace period
was no longer available to areas and EPA removed it from the conformity
rule in 2000 (65 FR 18911). Subsequently, Congress amended the Clean
Air Act on October 27, 2000, to reinstate the grace period as a matter
of law. Today's final rule amends the conformity regulation by
reinstating the grace period provision to be consistent with the
October 2000 Clean Air Act amendment, and therefore will provide newly
designated nonattainment areas with a one-year grace period before the
conformity regulation applies.
Today's action also amends the conformity rule to respond, in part,
to the impact of a decision made on March 2, 1999, by the U.S. Court of
Appeals for the District of Columbia Circuit that affected several
provisions of the 1997 rulemaking (Environmental Defense Fund v. EPA,
et al., 167 F. 3d 641, D.C. Cir. 1999). Specifically, today's final
rule addresses the indirect impact of this court decision on one
provision of the conformity rule (Sec. 93.104(e)), the provision that
requires conformity to be redetermined within 18 months of an initial
SIP submission. In addition to today's minor rule revision, we are
currently preparing a future rulemaking to respond to the remaining
issues addressed by the March 1999 court decision that will be
separately proposed in the Federal Register.
In the interim, areas where conformity applies are currently
operating under administrative guidance that EPA and the U.S.
Department of Transportation (DOT) issued to address the provisions
directly affected by the court decision. See EPA's web site listed in
the SUPPLEMENTARY INFORMATION section to download an electronic version
of EPA's May 14, 1999, and DOT's January 2, 2002, memoranda
implementing the March 1999 court decision.
Today's final rule is based on the October 5, 2001, proposed rule
entitled, ``Transportation Conformity Rule Amendments: Minor Revision
of 18-month Requirement for Initial SIP Submissions and Addition of
Grace Period for Newly Designated Nonattainment Areas'' (66 FR 50954)
and comments received on that proposal. The public comment period for
the proposed rule ended on November 5, 2001. EPA received twelve public
comments on the proposed rule from metropolitan planning organizations,
state transportation and air quality agencies, and an environmental
group.
This final rule makes two minor changes to the October 5, 2001,
proposed rule that further clarify the applicability of the one-year
conformity grace period to newly designated nonattainment areas. No
other modifications to the proposed rule, however, have been made in
today's final rule. EPA will not restate here its rationale for the
changes to the conformity rule that are identical to the October 5
proposal. The reader is referred to the proposal notice for such
discussions.
II. One-year Conformity Grace Period for Newly Designated Nonattainment
Areas
A. What Are We Finalizing?
Today, EPA is adding the existing one-year conformity grace period
for newly designated nonattainment areas for a given air quality
standard to the transportation conformity rule. We are finalizing this
change to make the transportation conformity rule consistent with an
October 27, 2000, amendment to the Clean Air Act (42 U.S.C.
7506(c)(6)).
Specifically, the October 2000 amendment provides areas, that for
the first time are designated nonattainment for a given air quality
standard, with a one-year grace period before the conformity regulation
applies with respect to that standard. This grace period begins upon
the effective date of EPA's published notice in the Federal Register
that designates an area as nonattainment. Although today's final rule
incorporates the grace period into the transportation conformity rule,
it has been available to newly designated nonattainment areas as a
matter of law since Congress enacted the October 2000 amendment to the
Act. For more information on what defines a ``newly designated''
nonattainment area, see the October 5, 2001, proposal to today's
rulemaking.
B. How Soon Does Conformity Apply in a Newly Designated Nonattainment
Area?
Under the current Clean Air Act as amended in October 2000,
conformity applies one year after EPA first designates an area or
portion of an area as nonattainment for a given air quality standard.
More specifically, conformity applies one year after the effective date
of EPA's final nonattainment designation, as published in the Federal
Register.
Therefore, one year after the effective date of EPA's designation
of an area to nonattainment for the first time for a given standard,
metropolitan areas must have a conforming transportation plan and
Transportation Improvement Program (TIP) in place to fund or approve
transportation projects. If, at the conclusion of the one-year grace
period, a metropolitan area is not able to make a conformity
determination for its plan and TIP, the area will be in what is known
as a ``conformity lapse.''
In the absence of a conforming transportation plan and TIP, no new
project-level conformity determinations may be made. According to
existing guidance, during a conformity lapse exempt projects listed in
Sec. 93.126 (e.g., safety projects), projects listed in Sec. 93.127 and
Sec. 93.128, and project phases that have received all applicable
funding commitments or approvals from the FHWA, FTA or state and local
authorizing agencies can proceed toward implementation. Transportation
control measures (TCMs) that EPA has approved into a SIP can also
proceed during a lapse. TCMs are projects that support air quality
goals by reducing travel or relieving congestion.
The transportation plan and TIP must conform with respect to all
pollutants for which the area is designated nonattainment to end the
conformity lapse. Transportation conformity applies in areas that are
designated nonattainment or maintenance for ozone, carbon monoxide,
particulate matter, and nitrogen dioxide. For example, a carbon
monoxide nonattainment area that is subsequently designated
nonattainment for ozone has a one-year grace period before conformity
determinations must be made for ozone; conformity would continue to
apply in the interim for carbon monoxide. By the end of the one-year
grace period, a conforming
[[Page 50810]]
transportation plan and TIP must be in place for all pollutants in a
given area, in this case, for carbon monoxide and ozone.
C. What Comments Did We Receive?
In general, commenters supported amending the conformity rule to
include the one-year conformity grace period for newly designated
nonattainment areas. Most commenters believe that newly designated
areas, especially those with little or no conformity experience, need
the additional time to evaluate their long range transportation plans,
TIPs and projects, and to complete the conformity process. Although the
grace period has been available to newly designated areas since the
enactment of the October 2000 Clean Air Act amendment, several
commenters felt that its inclusion into the conformity rule will help
to reduce confusion and provide assurance to future newly designated
areas.
Though most commenters agreed with amending the conformity rule to
include the one-year grace period, some commenters argued that one year
is not enough time to complete the transportation planning and
conformity processes when an area becomes designated nonattainment for
a given air quality standard for the first time. Some of these
commenters believe that a longer grace period of three years is more
appropriate.
The October 2000 Clean Air Act amendment specifically provides
newly designated areas with a one-year grace period, after which
conformity applies. Therefore, we believe that the statutory language
precludes EPA from extending the conformity grace period beyond one
year for new areas. We should also emphasize, however, that areas will
have prior notification of their pending designation well before the
Federal Register notice announcing their designation is published. We
encourage areas to use the time provided by the designation process to
begin preparing themselves for implementing the conformity regulation.
One commenter also requested that EPA consider delaying the
effective date of designation to 60-90 days after a Federal Register
notice is published, so that areas will have more time beyond the one-
year grace period to meet the conformity requirements. Generally, the
amount of time between publication and effective date is established
through EPA's administrative discretion on a case-by-case basis.
Therefore, we do intend to consider how areas are designated,
particularly for areas designated under new air quality standards, so
that the transition to implementing the conformity regulation will be
reasonable. Furthermore, as previously stated, the designation process
will provide areas advanced notification of their pending designation.
Areas should use this additional time prior to the one-year conformity
grace period to prepare for the implementation of the conformity
regulation and other Clean Air Act requirements. EPA can not now
determine the appropriate effective date for all future designations,
but will continue to do so, as appropriate on a case-by-case basis, in
the course of future designation rulemaking.
Finally, EPA received a comment questioning whether the proposed
rule text included in our October 5, 2001, proposal is consistent with
the statutory language in the Clean Air Act, section 176(c)(6).
Specifically, one commenter suggested that the proposed rule language
does not incorporate the limitation that the one-year grace period only
applies to areas that are designated nonattainment for a given
pollutant for the ``first'' time. This commenter argued that the Clean
Air Act precludes the availability of the grace period to areas that
were once nonattainment for a standard, redesignated to attainment
under Clean Air Act section 107(d)(3), but then designated back to
nonattainment because they again violated the same air quality
standard.
EPA agrees with this commenter's interpretation of the statutory
language; we do not believe that the grace period is available to areas
that are designated nonattainment for a given pollutant and standard
more than one time. The preamble to the October 5, 2001, proposal
further supports this limitation by stating that the conformity grace
period is not available to areas that have been previously designated
nonattainment for a given pollutant and standard.
Although EPA continues to believe that the proposed regulatory
language for Sec. 93.102(d) is consistent with the Clean Air Act, we
are finalizing two minor clarifying changes to the proposed rule to
ensure that the grace period is correctly implemented. Specifically, we
have clarified in the final rule language that the grace period is only
available to areas that have been ``continuously'' designated
attainment for a given standard since 1990, or have not been designated
at all for a given standard for that same period. In addition, we
specify that for areas that are designated nonattainment for the first
time for a given air quality standard, the one-year conformity grace
period only applies ``with respect to that standard.'' These minor
clarifications ensure that the regulatory language limits the
applicability of the one-year grace period to only areas that have been
designated nonattainment for a given pollutant and standard for the
first time, and therefore, is consistent with our interpretation and
implementation of the Clean Air Act section 176(c)(6). EPA believes
that a reproposal is not necessary to incorporate these minor
clarifying changes in today's final rule, as these clarifications are
consistent with EPA's original intentions and stakeholders'
understanding of the proposed regulatory language.
III. Conformity Determinations for Initial SIP Submissions
A. What Are We Finalizing?
As in the proposed rule, this final rule revises Sec. 93.104(e)(2)
to change the trigger point or starting point of the requirement to
determine conformity after an initial SIP submission is made. With this
rule change, conformity must be determined within 18 months of the
effective date of the Federal Register notice announcing EPA's finding
that the budgets in an initial SIP submission are adequate. Today's
action changes the 1997 conformity rule that required conformity to be
determined within 18 months of the submission date for an initial SIP.
The net effect is that areas will have the full 18 months to satisfy
the conformity requirement for initial submissions once adequate
budgets have become available for conformity. EPA is promulgating this
minor rule revision to provide a reasonable response to an indirect
impact of the March 2, 1999, court decision that requires EPA to first
find the budgets from an initial SIP submission adequate before such
budgets can be used in a conformity determination.
Today's final rule will also change the starting point for 18-month
clocks that are currently running for areas with initial SIP
submissions, so that these areas are given the full 18 months to
determine conformity to their initial SIPs. In other words, in areas
where a SIP has been submitted and EPA is currently reviewing it for
adequacy, the 18-month clock required by Sec. 93.104(e)(2) will not
start until the effective date of our adequacy finding (i.e., today's
action voids the current 18-month clock that started from the SIP
submission date for these areas). If we are currently reviewing the
adequacy of a submitted SIP, and subsequently find it inadequate, the
18-month clock will not start because today's rule requires EPA to
first find budgets in initial SIP submissions adequate before
Sec. 93.104(e)(2) applies. Finally, for areas
[[Page 50811]]
that have submitted initial SIPs that EPA has already found adequate
and to which conformity has not yet been determined, this final rule
will restart the 18-month clock from the effective date of EPA's
positive adequacy finding.
Consistent with the proposed rule, today's final rule will not
require an 18-month clock to begin if budgets from an initial SIP
submission are found inadequate. Furthermore, this rule will void any
18-month clocks that are running for initial SIP submissions that EPA
finds adequate, but subsequently finds inadequate before a conformity
determination is made, at the time that EPA finds such budgets
inadequate.
Today's action does not change the current requirement to
redetermine conformity for each initial SIP that is submitted for a
given pollutant, standard, and Clean Air Act requirement. For example,
an 18-month clock will still be triggered for the first attainment
demonstration that an area submits and EPA subsequently finds adequate,
as well as for the first rate-of-progress SIP for a given year and
maintenance plan that is submitted and found adequate. Today's rule
changes only the date on which these 18-month clocks begin to run.
In addition, today's action does not change the current rule's
requirement that an area need only satisfy the 18-month requirement to
determine conformity to an initial SIP submission once for a given
Clean Air Act requirement. Once Sec. 93.104(e)(2) is satisfied, areas
do not have to satisfy this requirement again for subsequent
submissions of the same type prior to EPA SIP approval. EPA believes
that the requirement to update conformity every three years (40 CFR
93.104), along with other transportation planning and conformity
requirements, provides sufficient additional opportunity for
periodically introducing new air quality information into the
conformity process. Furthermore, this action does not change the
conformity rule's requirement of 40 CFR 93.104(e)(3); areas are still
required to demonstrate conformity within 18 months of EPA's approval
of a SIP containing revised budgets.
Finally, as indicated in the proposal, today's final rule will not
affect those SIPs that are submitted to reflect additional control
measures or to update MOBILE5 interim estimates of federal Tier 2
vehicle and fuel standards with MOBILE6. EPA has already stated that
these SIP revisions are not initial SIP submissions that start 18-month
clocks under 40 CFR 93.104(e)(2). EPA addressed this issue in the July
28, 2000, supplemental notice of proposed rulemaking (65 FR 46386) for
certain ozone attainment areas.
For more information on what defines an ``initial SIP submission,''
see the October 5, 2001, proposal to today's final rule.
B. Why Is This Rule Change Necessary?
Today's rule change is necessary because it provides a reasonable
response to an indirect impact of the March 2, 1999, court decision. In
its March 1999, decision, the court ruled that EPA must first find
newly submitted motor vehicle emissions budgets adequate before such
budgets can be used in a conformity determination. An effect of the
combination of the court decision and EPA's previous rule was that a
significant portion of the 18-month period for demonstrating conformity
could elapse prior to the time EPA made a determination that the
submitted budgets were adequate.
As described in our May 14, 1999, guidance implementing the court's
decision, EPA's current adequacy process for a newly submitted initial
SIP starts when the SIP is submitted and ends with the effective date
of our adequacy finding, which we formally announce through a Federal
Register notice. EPA tries to complete an adequacy review in
approximately three months, although in some cases additional time is
needed. During the adequacy review period, the public is provided at
least 30 days to comment on the appropriateness of the newly submitted
budgets. EPA must then address all comments received for the submitted
budgets before we can make our adequacy finding. Areas cannot begin the
process of determining conformity using the submitted budgets with
certainty until EPA has determined that the budgets are adequate.
Under the conformity rule prior to today and the court decision, a
conformity determination cannot be made until budgets are found
adequate, and therefore, transportation agencies should not be expected
to invest valuable time and resources completing a regional emissions
analysis and conformity determination prior to knowing which SIP
budgets apply. As a result, under the prior rule, areas had a maximum
of 15 months to determine conformity following an initial SIP
submission (i.e., the 18-month conformity clock for initial submissions
minus the three months minimally required for EPA to determine
adequacy). Where adequacy review was complex and subsequently delayed,
particularly in situations with significant public involvement, areas
may have had even less time to determine conformity under the previous
rule. As a consequence, the shortening of the 18-month period by the
amount of time needed for the adequacy review process could lead to
significant difficulties for those that implement the conformity
program.
If budgets cannot be used until EPA completes its adequacy review
and the finding becomes effective, the 18-month clock for conformity
should not start until that time. EPA believes this rule change is
reasonable and necessary, given that this additional time needed for
adequacy review was not contemplated when the original 18-month initial
SIP conformity requirement was established.
There can also be situations where EPA finds submitted budgets
adequate, but later finds them inadequate because new information has
become available that affects the adequacy of the budgets. In these
situations, conformity implementers may try in good faith to determine
conformity to adequate budgets in an initial SIP submission within 18
months, only to have the budgets found inadequate before a conformity
determination is made.
To address the situations described above and based on our
experience in implementing conformity to date, EPA continues to believe
that areas should have the full 18 months to determine conformity. In
these cases, an 18-month period provides areas with the time needed to
assess new information contained in a SIP, perform additional emissions
analyses and provide the public with an opportunity to review new
changes to the transportation plan and TIP and conformity
determination. We continue to encourage air quality and transportation
planners to coordinate their processes so that new air quality plans
can be used expeditiously in the transportation conformity and planning
processes.
For more information on EPA's adequacy process for initial SIP
submissions, see the SUPPLEMENTARY INFORMATION section in this final
rule to download a copy of EPA's May 14, 1999 memorandum implementing
the court's decision.
C. What Comments Did We Receive?
The majority of commenters agreed that the 18-month requirement for
conformity to initial SIP submissions should be aligned with EPA's
adequacy finding for such submitted budgets. Most commenters supported
this rule change, as it will allow for greater certainty in the
conformity process and will provide transportation planners sufficient
time to incorporate new
[[Page 50812]]
information into the transportation planning and conformity processes.
One commenter, however, believed that the proposed rule is
arbitrary and capricious because it could potentially delay
implementing new budgets in nonattainment areas where expeditious
emissions reductions are necessary to meet statutory requirements and
deadlines. The commenter asserted that 18 months is an excessive amount
of time to allow for a revision of the plan and TIP to take place, and
that the time frame for redetermining conformity when new budgets
become available should be tailored to the time remaining before a
required milestone or attainment year.
In addition, the commenter stated that EPA's proposal is
inconsistent with the Clean Air Act's requirements for how often
conformity determinations should be conducted. The commenter
acknowledged that Clean Air Act section 176(c)(4)(B)(ii) provides EPA
discretion in determining the frequency of conformity determinations,
but believed that EPA must also consider Congress' intention to have
transportation agencies be ``active players'' in implementing the
emission reductions required for reasonable further progress or
attainment. The commenter cited Congressional records from the
development of the 1990 Clean Air Act that stated that transportation
activities can only be accepted by DOT if they are consistent with the
SIP's air quality goals; if a transportation plan and TIP does not meet
the emissions targets set by the SIP and further motor vehicle emission
reductions are needed to reach attainment, the plan and TIP must be
modified to achieve the SIP's budgets.
EPA does not agree that the final rule will further delay the use
of new budgets in the transportation planning and conformity processes.
We are finalizing today's rule change to provide a reasonable response
to an indirect effect of the March 2, 1999, court decision that
requires EPA to formally review and find initially submitted budgets
adequate before they can be used in a conformity determination. As a
result of the court's ruling, we do not believe that starting an 18-
month clock from the submission of a budget that may or may not be
adequate and available for use for conformity purposes is
environmentally sensible. We believe that good air quality results will
be most effectively achieved by ensuring that new budgets are
consistent with timely attainment or maintenance through the adequacy
process before requiring their use in the transportation planning and
conformity processes.
EPA also believes that the final rule is consistent with the Clean
Air Act. While EPA agrees that the Clean Air Act requires
transportation activities to conform to the SIP before federal funding
and approval occurs and that the latest SIP budget should be used in
such a conformity determination, the Clean Air Act does not
specifically require conformity determinations to be done more often
than every three years. Clean Air Act section 176(c)(4)(B) requires EPA
to promulgate conformity procedures and criteria that ``shall, at a
minimum, * * * 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 * * *''
EPA established the frequency requirements for conformity
determinations covered by 40 CFR 93.104 in previous rulemakings,
including the requirements to determine plan/TIP conformity within 18
months of certain SIP actions (e.g., initial SIP submissions, EPA SIP
approvals). The conformity rule's frequency requirements meet the
statutory minimum and, along with the requirement that new plans, TIPs,
and plan/TIP amendments must demonstrate conformity before they can be
implemented in between 3-year update cycles, provide sufficient
opportunities for reevaluating plans and TIPs in relation to new SIPs,
especially in areas that have more significant air quality challenges.
Therefore, even in cases where EPA's adequacy findings require more
than three months to complete, existing conformity and transportation
planning requirements provide a safeguard to prevent negative impacts
on air quality.
Moreover, areas typically begin considering new air quality
information during the transportation planning process prior to EPA's
formal adequacy finding for initial SIP submissions, as our pending
adequacy finding on newly submitted budgets may necessitate additional
emissions reductions or alterations to an area's current plan and TIP.
In other words, transportation planners frequently become aware through
early consultation with their air quality partners of when new, more
stringent budgets are being developed, and thus, have the opportunity
to consider changes to the transportation plan and TIP to ensure
conformity to those new budgets in the future. Therefore, EPA continues
to believe that the iterative nature of the conformity and
transportation planning processes, along with early and effective
interagency consultation, allows for new transportation activities to
be continuously evaluated to ensure that attainment is not delayed.
Furthermore, it is important to understand the role that
transportation conformity plays in ensuring clean air. The
transportation conformity process is one of many mechanisms established
by the Clean Air Act for protecting public health. Although
transportation conformity ensures that the SIP's motor vehicle
emissions targets are achieved through the transportation planning
process, air quality planners and EPA are primarily responsible for
ensuring that SIPs containing sufficient emissions reductions to meet
applicable air quality requirements are developed according to
statutory requirements and are available in the transportation planning
process in a timely manner.
This rule change will not have a significant impact on air quality
because it in no way affects the overall statutory requirements and
deadlines established to attain the air quality standards. The Clean
Air Act defines the dates by which nonattainment areas must attain the
air quality standards. It is the responsibility of EPA and the state
and local air quality agencies to ensure that SIPs can achieve the
necessary reductions to meet these deadlines, taking into account,
among other factors, control measure implementation schedules and the
timing of conformity.
EPA also believes that the suggested approach of tailoring the
amount of time that an area has to redetermine conformity with the
amount of time remaining before an area's next required milestone or
attainment year would lead to inconsistencies and confusion in
implementing the conformity rule. Moreover, the practical
implementation of adjusting the time allowed to redetermine conformity
following the submission of each initial SIP would introduce a great
deal of uncertainty in the air quality and transportation planning
processes, and would be logistically difficult and burdensome to
implement.
Transportation conformity is a process that coordinates two
different planning processes--transportation and air quality planning.
As a result, EPA has an obligation to balance the need to incorporate
new air quality planning information and the need of transportation
planners to have sufficient time to incorporate this new information
into their planning process. We believe that today's rule change
regarding the conformity requirement for initial SIP submissions will
achieve
[[Page 50813]]
this balance, as well as remain within the boundaries of the statutory
requirements.
The same commenter also claimed that EPA provided no rational basis
in the proposal for providing areas with an 18-month time period for
redetermining conformity to an initial SIP submission. Alternatively,
the commenter suggested providing areas with a shorter time period of
nine months to meet the conformity requirement for initial SIP
submissions, particularly when the time between submission of a SIP
budget and a statutory attainment or reasonable further progress
deadline is less than 24-36 months, or when such deadlines have not
been met. According to the commenter, expediting conformity
determinations in these situations would ensure that motor vehicle
emissions control measures, such as transportation control measures and
transit capital investments, will be in place in time to achieve
necessary emissions reductions.
EPA does not believe that the role of conformity, or of this rule
change in particular, is to facilitate emissions reductions in the
manner in which this commenter has suggested. The conformity provisions
of the statute merely require that transportation activities conform to
the SIP, and that such determinations include new transportation
activities and are conducted at least every three years.
For this rulemaking, EPA did not propose extending or reducing the
18-month time period that is already provided to areas to redetermine
conformity to initially submitted SIPs under existing federal rules.
The 18-month time period for initial SIP submissions was established
through the November 14, 1995, final rule (60 FR 57182). When EPA
promulgated this rulemaking, we concluded that 18-months was an
appropriate time frame in which to incorporate new SIP submissions into
the transportation planning process. Since that time, no new
information has indicated that the 18-month time period is
inappropriate, as explained further below. Today's final rule only
changes the starting point of the 18-month time period for initial SIP
submissions. This change is needed to response to an indirect impact of
the March 2, 1999, court decision in which the court ruled that budgets
could not be used for conformity purposes until EPA has found them
adequate.
Moreover, from EPA's experience implementing the conformity rule to
date, providing areas with 18 months to determine conformity to new SIP
budgets is a reasonable time period, given the amount of time,
resources and public participation that is required for the
transportation planning and conformity processes. Prior to our November
14, 1995, amendment to the conformity rule, areas only had 12 months to
redetermine conformity to an initial SIP submission. Due to the
overwhelming difficulties areas had in meeting these 12-month clocks,
EPA proposed, considered public comment, and finalized extending the
conformity requirement for initial SIP submissions to 18 months. As a
result, EPA continues to believe that 18 months from an initial SIP
conformity trigger for all areas is the most reasonable and workable
time frame for redetermining conformity to initial SIPs. For more
information regarding EPA's rationale and response to comments for
extending the initial SIP conformity trigger to 18 months, see our
November 1995 rulemaking. An electronic version of this rulemaking can
be downloaded from EPA's web site listed in the SUPPLEMENTARY
INFORMATION section of this rule.
In addition, EPA believes that the existing transportation and air
quality planning requirements do ensure that motor vehicle control
measures that are approved into a SIP are implemented in such a manner
that achieves the necessary emissions reductions in a timely fashion.
Therefore, we do not believe that conformity determinations need to be
expedited specifically for this purpose. Clean Air Act sections 174(a)
and 176(c)(4) require the inclusion of transportation planners in the
SIP development process and the formal establishment of consultation
procedures among state and local transportation and air quality
agencies involved in the conformity process, respectively. This
required consultation among transportation and air quality agencies is
intended to ensure that the transportation planning process becomes a
routine component of any analysis (e.g., determining implementation
schedules, evaluating emissions benefits, etc.) involving
transportation control measures slated for inclusion in a SIP.
Furthermore, as a practical matter, transportation projects, including
those that have emissions reduction benefits, cannot receive federal
funding or approval unless they are contained in a fiscally constrained
and conforming transportation plan and TIP that has been approved
through the transportation planning process, pursuant to 23 CFR part
450 and 49 CFR part 613. Therefore, these transportation and air
quality planning requirements ensure that any transportation measure
that EPA approves into a SIP has been coordinated through the
transportation planning process and is designed to timely reduce
emissions in accordance with the SIP's purpose of achieving further
progress, attainment or maintenance.
The same commenter expressed concern over not requiring a new 18-
month clock when a conformity determination is made using budgets that
EPA has found adequate, but not yet approved, prior to a subsequent
submission of new, more stringent budgets for the same Clean Air Act
requirement. In this particular case, the commenter believes that
Sec. 93.104(e)(2) should be triggered again, thus requiring areas to
revise their plan and TIP to conform to the newly submitted revised
budgets upon EPA's adequacy finding. By not requiring Sec. 93.104(e)(2)
to apply in this situation, the commenter argues that this rule will
sever the link between the conformity process and the obligation of
transportation agencies to revise plans and TIPs to achieve the Clean
Air Act's objectives.
EPA disagrees. EPA did not propose the additional 18-month
requirement for the unique situation the commenter describes, and
therefore can not address this issue in today's final rule. Moreover,
this suggested requirement is contrary to the historic position that
EPA has held on this issue, as described in the preamble to our August
29, 1995 proposed rulemaking initially establishing the 18-month
requirement (60 FR 44792). In that proposal to extend the conformity
requirement for initial SIP submissions to within 18 months of their
submissions, EPA states: ``If conformity to the initial submission has
been demonstrated and that submission is subsequently revised, no 18-
month clock would start until * * * the SIP is approved by EPA.'' EPA's
intent and implementation of Sec. 93.104(e)(2) of the conformity rule
has always been to serve as a one-time conformity requirement for
initial SIP submissions, so that areas can use new motor vehicle
emissions budgets in a conformity determination when no budgets for a
particular year and/or purpose had previously existed. Historically, we
have never considered Sec. 93.104(e)(2) to be an iterative requirement
that mandates continual conformity updates outside of the normal
transportation planning process. Therefore, EPA continues to maintain
that once conformity is determined and Sec. 93.104(e)(2) is satisfied
for a SIP having a given purpose (e.g., attainment, rate-of-progress,
maintenance), it is not necessary for areas to meet this requirement
again for subsequent
[[Page 50814]]
submissions of the same type of SIP prior to EPA's approval. Areas will
again be required to determine conformity within 18 months of EPA's
approval of any revised budgets. However, in this situation, if new
transportation activities are proposed after EPA finds the revised
budgets adequate, but before SIP approval, a conformity determination
based on the revised budgets along with all other applicable budgets
would be required before such activities could be implemented. In other
words, the revised budgets must be used (along with all other existing
applicable budgets) in any determination after they have been found
adequate, even though they are not subject to a new 18-month clock,
pursuant to Sec. 93.104(e)(2).
Furthermore, we do not agree that the integration of air quality
and transportation planning via the conformity process will be
compromised as a result of implementing Sec. 93.104(e)(2) as a one-time
requirement for each initial SIP consistent with the current rule. Due
to the iterative nature of the transportation planning and conformity
processes, the most current air quality information is incorporated on
a regular and consistent basis. The three-year conformity requirement
for transportation plans and TIPs, along with other transportation
planning and conformity requirements, provides for the reasonable and
timely introduction of the most current information into the conformity
process.
The same commenter also requested from EPA a clarification that
Sec. 93.118(a) requires a conformity determination for a plan and TIP
to show consistency with all applicable adequate and approved budgets
at the time a conformity determination is made. EPA agrees that this
requirement applies for all conformity determinations, including those
made for TIPs that rely on a previous emissions analysis pursuant to
Sec. 93.122(e).
Like all conformity determinations, a determination for a TIP that
relies on a previous emissions analysis must satisfy the emissions test
requirements of Sec. 93.118 (or Sec. 93.119, if no applicable adequate
or approved budgets exist), and must do so over the time frame of the
transportation plan. EPA agrees with this clarification of
Sec. 93.118(a) and its requirement for demonstrating conformity using
all applicable budgets, and will consider elaborating on this proposed
clarification in a future rulemaking. Since EPA did not propose such a
change, EPA is not making any changes in this final rule with regard to
the described interpretation of Sec. 93.118(a). Nonetheless, EPA
reiterates that this clarification is the intent of the existing rule.
Finally, one commenter indicated that the October 2001 proposal was
not clear as to how the one-year conformity grace period and the 18-
month requirement for initial SIPs relate to one another. From the
commenter's reading of the proposed rule amendments, it appeared that
the one-year grace period and 18-month requirement for initial SIP
submissions overlap.
In response, the one-year conformity grace period and the 18-month
conformity requirement for initial SIPs are not interrelated.
Typically, when areas are newly designated they do not have a submitted
SIP for which an 18-month clock would start. In the unique situation
where an area is newly designated and submits an initial SIP during the
one-year grace period, conformity of the plan and TIP would still need
to be demonstrated at the conclusion of the one-year grace period. If
EPA has found adequate or approved the submitted SIP and budgets before
the grace period expires, those adequate or approved budgets must be
used for conformity. Therefore in this situation, both conformity
requirements--a conforming plan and TIP one year after designation and
the 18-month conformity requirement for the submitted SIP--would be
satisfied if a conformity determination using the adequate or approved
budgets is made prior to the expiration date of the one-year grace
period.
If no adequate or approved budgets exist at the time that the one-
year grace period expires, areas should use the conformity test(s) that
EPA has deemed appropriate for satisfying the conformity requirement.
EPA is currently considering what conformity test(s) will apply for
areas that are designated nonattainment under new air quality standards
(e.g., EPA's ozone and particulate matter standards issued in 1997) and
will address this issue in future guidance documents and rulemakings
prior to area designations. In this situation, an 18-month conformity
clock pursuant to Sec. 93.104(e)(2) as amended today would not start
until these areas submit an initial SIP and EPA has found the submitted
budgets adequate for conformity purposes.
IV. What Comments That Addressed Topics Other Than Those Covered in
This Rulemaking Did We Receive?
Several commenters raised concerns about aspects of the
transportation conformity rule that are not germane to this specific
rulemaking, including the implementation of the conformity regulation
under EPA's new 8-hour ozone and PM-2.5 (particulate matter with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers)
standards, and the impact of the March 2, 1999, court decision on
projects that can proceed during a conformity lapse. These comments do
not affect whether EPA should proceed with this final action, but EPA
will be considering these comments when we develop policy guidance and
future rulemakings to address these larger issues.
In addition, one commenter requested that EPA consider eliminating
two additional conformity SIP triggers required in Sec. 93.104(e).
Specifically, the commenter requested that we eliminate the 18-month
conformity frequency requirements for SIP approvals that establish new
budgets (Sec. 93.104(e)(3)) and for SIP approvals that revise TCMs
(Sec. 93.104(e)(4)). This commenter characterized these additional SIP
requirements as being superfluous and onerous to the transportation
planning process.
For today's rulemaking, EPA did not propose eliminating the
conformity triggers outlined in 93.104(e)(3) and 93.104(e)(4), nor have
we provided the public with an opportunity to comment on the suggested
deletion of these provisions from the conformity rule. Therefore, we
are not making any changes to these requirements at this time. However,
we will consider this flexibility, along with others, for future
rulemakings. A complete response to comments documents is in the docket
for this rulemaking (see ADDRESSES for more information regarding the
docket and additional documents relevant to this rulemaking).
V. How Does Today's Final Rule Affect Conformity SIPs?
Clean Air Act section 176(c)(4)(C) requires states to submit
revisions to their SIPs to reflect the criteria and procedures for
determining conformity. Section 51.390(b) of the conformity rule
specifies that after EPA approves a conformity SIP revision (including
those that have been approved as a Memorandum of Understanding or
Memorandum of Agreement), the federal conformity rule no longer governs
conformity determinations (for the parts of the rule that are covered
by the approved conformity SIP). In some areas, EPA has already
approved conformity SIPs that include Sec. 93.104(e)(2) from the 1997
transportation conformity rule (62 FR 43780). In these areas, today's
final rule changes will be effective only when EPA approves a
conformity SIP revision
[[Page 50815]]
that includes the amendment to align the 18-month clock for initial SIP
submissions with EPA's adequacy finding. EPA will work with states as
appropriate to approve such revisions as expeditiously as possible
through flexible administrative techniques such as parallel processing
and direct final rulemaking to insure that all areas will be able to
benefit from this rule change in a timely manner.
In some areas, however, EPA may have approved such provisions in
error, if EPA had approved a conformity SIP that included
Sec. 93.104(e)(2) after the March 2, 1999, court decision, but prior to
today. In these areas, EPA will publish, as appropriate, a technical
correction in the Federal Register under section 110(k)(6) of the Clean
Air Act to limit EPA's approval of such SIPs and clarify that
Sec. 93.104(e)(2) should not have been approved into a conformity SIP
since the court's ruling indirectly affected this provision by
requiring EPA to find submitted budgets adequate before the initial SIP
requirement could be satisfied. Once EPA has corrected its approval of
such SIPs to exclude the state's version of Sec. 93.104(e)(2), these
areas will become subject to the amended version of Sec. 93.104(e)(2)
and 18 month clocks will immediately begin to run from EPA's adequacy
determination rather than from the submission date of an initial SIP.
In contrast, the one-year conformity grace period currently applies
as a statutory matter for all newly designated nonattainment areas,
including areas that have EPA-approved conformity SIPs, since this
grace period was required as a matter of law once the Act was amended
even prior to today's final rule.
VI. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines significant ``regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or 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 final rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB.
B. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements from EPA that 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
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 rule will not have a significant
impact on a substantial number of small entities. This regulation
directly affects federal agencies and metropolitan planning
organizations that by definition, are designated only for metropolitan
areas with a population of at least 50,000. These organizations do not
constitute small entities. The Regulatory Flexibility Act defines a
``small governmental jurisdiction'' as the government of a city,
county, town, school district or special district with a population of
less than 50,000.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this final 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 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 EPA promulgates a 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 of 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 final 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. These rule amendments simplify the conformity
rule and make it more practicable to implement, in accordance with the
Clean Air Act and our
[[Page 50816]]
reasonable and thoughtful approach to an indirect impact of the court's
decision. They do not impose any additional burdens. Thus, today's
proposed rule is not subject to the requirements of sections 202 and
205 of the UMRA and EPA has not prepared a statement with respect to
budgetary impacts.
E. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 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 standard 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 rulemaking does not involve technical standards. Therefore,
the use of voluntary consensus standards does not apply to this final
rule.
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 final rule is not subject to Executive Order 13045 because it
is not economically significant within the meaning of Executive Order
12866 and does not require the consideration of relative environmental
health or safety risks.
G. Executive Order 13175
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
The Clean Air Act requires transportation conformity to apply in
areas designated nonattainment and maintenance by EPA. Today's minor
amendments to the conformity rule do not significantly or uniquely
affect the communities of Indian tribal governments. Specifically, this
rulemaking will not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. Accordingly, the requirements of Executive Order
13175 do not apply to this rulemaking.
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 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 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, that amends a regulation that 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
directed EPA to affirmatively find the motor vehicle emissions budgets
contained in a SIP adequate before the budgets can be used in
conformity determinations. To effectively implement the court's
directive on this matter, we believe it is necessary to modify the
timing of when one of our existing frequency requirements for
conformity is required. The rule will also provide newly designated
nonattainment areas with a one-year grace period before conformity
becomes applicable, as required by an October 2000 amendment to the
Clean Air Act.
In summary, one of the provisions in this final rule is required by
statute and one provision will provide a reasonable response to an
indirect impact of the court's decision, and by themselves will not
have substantial impact on States. Thus, the requirements of section 6
of the Executive Order do not apply to this rulemaking.
I. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66
[[Page 50817]]
FR 28355; May 22, 2001) because it is not a significant regulatory
action under Executive Order 12866.
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 October 7, 2002. 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 a 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: July 31, 2002.
Christine Todd Whitman,
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.
2. Section 93.102 is amended by adding paragraph (d) to read as
follows:
Sec. 93.102 Applicability.
* * * * *
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been continuously designated attainment or not
designated for any standard for ozone, CO, PM10 or
NO2 since 1990 and are subsequently redesignated to
nonattainment or designated nonattainment for any standard for any of
these pollutants, the provisions of this subpart shall not apply with
respect to that standard for 12 months following the effective date of
final designation to nonattainment for each standard for such
pollutant.
3. Section 93.104 is amended by revising paragraph (e)(2) to read
as follows:
Sec. 93.104 Frequency of conformity determinations.
* * * * *
(e) * * *
(2) The effective date of EPA's finding that motor vehicle
emissions budgets from an initially submitted control strategy
implementation plan or maintenance plan are adequate pursuant to
Sec. 93.118(e) and can be used for transportation conformity purposes;
* * * * *
[FR Doc. 02-19797 Filed 8-5-02; 8:45 am]
BILLING CODE 6560-50-P