[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Rules and Regulations]
[Pages 40098-40101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19400]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[FRL-5273-8]
Transportation Conformity Rule Amendments: Transition to the
Control Strategy Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action permanently aligns the timing of certain
consequences of state air quality planning failures under EPA's
transportation conformity rule with the imposition of Clean Air Act
highway sanctions. For ozone nonattainment areas with an incomplete 15%
emissions-reduction state implementation plan with a protective
finding; incomplete ozone attainment/3% rate-of-progress plan; or
finding of failure to submit an ozone attainment/3% rate-of-progress
plan; and areas whose control strategy implementation plan for ozone,
carbon monoxide, particulate matter, or nitrogen dioxide is disapproved
with a protective finding, the conformity status of the transportation
plan and program will not lapse as a result of such failure until
highway sanctions for such failure are effective under other Clean Air
Act sections.
This action makes permanent the interim final rule issued on
February 8, 1995 (60 FR 7449), which was effective for only six months.
The lapse in conformity status which this action delays for some areas
would otherwise prevent approval of new highway and transit projects.
EFFECTIVE DATE: This final rule is effective August 8, 1995.
ADDRESSES: Materials relevant to this rulemaking are contained in
Docket No. A-95-02. The docket is located in room M-1500 Waterside Mall
(ground floor) at the Environmental Protection Agency, 401 M Street
S.W., Washington, DC 20460. The docket may be inspected from 8 a.m. to
4 p.m., Monday through Friday, including all non-government holidays.
FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Emission Control
Strategies Branch, Emission Planning and Strategies Division, U.S.
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI
48105. (313) 668-4441.
SUPPLEMENTARY INFORMATION:
I. Background
On February 8, 1995, EPA issued an interim final rule entitled,
``Transportation Conformity Rule Amendments: Transition to the Control
Strategy Period,'' which was effective from February 8, 1995, until
August 8, 1995 (60 FR 7449). Because the interim final rule took effect
without prior notice and comment, EPA limited its effectiveness to a
six-month period, during which full notice and comment was to occur.
EPA also issued on February 8, 1995, a proposed rule to apply the
provisions of the interim final rule permanently (60 FR 7508). The
public comment period on the proposed rule lasted until March 10, 1995,
and a public hearing was held on February 22, 1995.
The February 8, 1995, interim final rule delayed the conformity
lapse imposed as a result of the following: an incomplete 15% rate-of-
progress SIP with a ``protective finding'' (described below); a failure
to submit or submission of an incomplete ozone attainment/3% rate-of-
progress SIP; and a disapproval of any control strategy SIP (i.e., 15%
rate-of-progress SIP, reasonable further progress SIP, or attainment
demonstration) with a protective finding.
The interim final rule did not affect the timing of the conformity
lapse which results from failure to determine conformity by the
deadlines established in 40 CFR 51.400 (93.104) and 51.448(a)
(93.128(a)), including deadlines to redetermine conformity with respect
to submitted SIPs, following promulgation of the November 1993 rule,
and following control strategy SIP approvals.
When the conformity status of the transportation plan and
transportation improvement program (TIP) lapses, no new project-level
conformity determinations may be made, and the only federal highway and
transit projects which may proceed are exempt or grandfathered
projects. Non-federal highway or transit projects may be adopted or
approved by recipients of funds designated under title 23 U.S.C. or the
Federal Transit Act only if they are not regionally significant.
EPA is delaying the conformity lapse resulting from the specific
SIP deficiencies listed above because EPA has recognized that in
practice, the twelve-month time period which the November 24, 1993,
transportation conformity rule allowed for areas to correct those SIP
deficiencies is too short to be reasonable for purposes of determining
when transportation plans and TIPs should lapse following SIP
development failures.
Today's final rule amends the transportation conformity rule,
``Criteria and Procedures for Determining Conformity to State or
Federal Implementation Plans of Transportation Plans, Programs, and
Projects Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Act'' (58 FR 62188, November 24, 1993). Required under section
176(c) of the Clean Air Act, as amended in 1990, the transportation
conformity rule established the criteria and procedures by which the
Federal Highway Administration, the Federal Transit Administration, and
metropolitan planning organizations (MPOs) determine the conformity of
federally funded or approved highway and transit plans, programs, and
projects to state implementation plans (SIPs). According to the Clean
Air Act, federally supported activities must conform to the
implementation plan's purpose of attaining and maintaining the national
ambient air quality standards.
II. Description of Final Rule
This final rule makes no substantive changes from the proposed
rule. This final rule permanently applies the provisions of the
February 8, 1995, interim final rule by eliminating the six-month limit
to the interim final rule's
[[Page 40099]]
applicability. The regulatory language is somewhat modified from the
interim final rule's language as a result of the elimination of the
six-month limit on applicability of certain provisions.
Like the interim final rule and proposed rule, this final rule
affects areas with a 15% SIP which EPA found incomplete but noted in
the finding (according to 40 CFR 51.448(c)(1)(iii)) that the submittal
would have been considered complete with respect to requirements for
emission reductions if all committed measures had been submitted in
enforceable form as required by Clean Air Act section 110(a)(2)(A)
(i.e., incomplete with a ``protective finding''); ozone nonattainment
areas which fail to submit an ozone attainment SIP and/or a 3% rate-of-
progress SIP revision; ozone nonattainment areas with an incomplete
ozone attainment SIP and/or an incomplete 3% rate-of-progress SIP; and
areas with a disapproved control strategy SIP with a ``protective
finding'' as described in 40 CFR 51.448 (a)(3) and (d)(3). Conformity
lapse as a result of these SIP failures is delayed until Clean Air Act
section 179(b) highway sanctions for these failures are applied. If the
interim final rule expired on August 8, 1995, without today's final
rule, conformity would lapse immediately in approximately twenty areas
without complete 15% SIPs.
Like the interim final rule and proposed rule, this final rule does
not change the timing of conformity lapse for disapproval of any
control strategy SIP without a protective finding; for failure to
submit or submission of incomplete carbon monoxide (CO), particulate
matter (PM-10), or nitrogen dioxide (NO2) attainment
demonstrations; for failure to submit 15% SIPs; or for submission of
incomplete 15% SIPs without protective findings.
Like the interim final rule and the proposed rule, this final rule
does not affect the timing of the conformity lapse which results from
failure to determine conformity by the deadlines established in 40 CFR
51.400 (93.104) and 51.448(a) (93.128(a)), including deadlines to
redetermine conformity with respect to submitted SIPs, following
promulgation of the November 1993 rule, and following control strategy
SIP approvals.
This final rule deletes paragraphs (g)(1) and (g)(2) in 51.448(g)
(93.128(g)), because these provisions are no longer relevant given the
other changes of this final rule.
Today's final rule will be effective August 8, 1995. Today's final
rule will prevent the conformity status of certain plans and TIPs from
lapsing immediately upon expiration of the interim final rule on August
8, 1995, in approximately twenty ozone nonattainment areas currently
without complete 15% SIPs. This conformity lapse would be contrary to
the public interest because EPA believes that halting of transportation
plan, program, and project implementation in these cases is not
necessary at this time for the lawful and effective implementation of
Clean Air Act section 176(c). If EPA did not make this rule effective
August 8, 1995, conformity lapse which is contrary to the public
interest could occur in some areas during the 30-day period between
publication and the effective date which is ordinarily provided under
the Administrative Procedures Act (APA), 5 U.S.C. 553(d). EPA therefore
finds good cause to make this final rule effective August 8, 1995. In
addition, this rule relieves a restriction and therefore qualifies for
an exception from the APA's 30-day advance-notice period under 5 U.S.C.
553(d)(1).
III. Response to Comments
Fourteen comments on the proposed rule were submitted, including
comments from MPOs and state and local air and transportation agencies.
The majority of the comments supported the proposed rule. A complete
response to comments document is in the docket.
One commenter opposed the proposed rule for a number of reasons,
including the concern that the proposed rule would encourage further
delays in development and submission of control strategy SIPs. EPA
agrees that the submission of control strategy SIPs (and thus motor
vehicle emissions budgets) is of critical importance for conformity
purposes. However, EPA believes that Clean Air Act section 179(b)
sanctions continue to provide appropriate incentive to submit complete
and approvable control strategy SIPs.
The commenter also suggested that EPA consider options such as
retaining the lapsing provisions but allowing extensions in certain
circumstances, or retaining the conformity lapse but allowing a longer
grace period (such as 18 or 24 months) following an EPA finding of a
SIP failure. In fact, because Clean Air Act highway sanctions apply 24
months following an EPA finding of a SIP failure, today's amendments
aligning conformity lapse with Clean Air Act highway sanctions
implement the commenter's latter suggestion. Although the commenter was
also concerned that tying conformity to sanctions would make EPA more
hesitant to apply sanctions, section 179(b) sanctions are mandatory
within the prescribed periods following EPA's findings of State
failures, under the Clean Air Act and EPA's regulations.
Other commenters suggested that EPA should align all conformity
lapses due to SIP failures with Clean Air Act sanctions. Alignment for
more cases than originally proposed would require another rulemaking.
EPA currently intends to issue in the future a proposal to align with
Clean Air Act highway sanctions the conformity lapse which results from
failure to submit a 15% SIP; an incomplete 15% SIP without a protective
finding; and failure to submit or incomplete CO, PM-10, or NO2
attainment demonstrations. This change would also dramatically decrease
the complexity of the regulatory language in section 51.448 (93.128) of
the conformity rule, which was a concern expressed by some commenters.
EPA will be considering comments advocating alignment of the lapse
which follows SIP disapprovals without protective findings, but the
agency has not yet decided whether to propose amending that provision.
Some commenters suggested that every conformity lapse for any
reason, including failure to demonstrate conformity to a submitted SIP,
should be delayed. These suggestions are beyond the scope of the
proposed rule and would also require another proposed rule. Again, EPA
will be considering these comments in the context of future conformity
rule amendments.
Several commenters also raised concerns about aspects of the
conformity rule which are not relevant to this action, including
transportation control measures and non-federal projects. These
comments do not affect whether EPA should proceed with today's action,
but EPA will be considering them in the context of future conformity
rule amendments.
IV. Administrative Requirements
A. Administrative Designation
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
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the
[[Page 40100]]
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; or
(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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Reporting and Recordkeeping Requirements
This rule does not contain any information collection requirements
from EPA which require approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
EPA has determined that today's regulations will not have a
significant impact on a substantial number of small entities. This
regulation affects moderate and above ozone nonattainment areas, which
are almost exclusively urban areas of substantial population, and
affects federal agencies and metropolitan planning organizations, which
by definition are designated only for metropolitan areas with a
population of at least 50,000.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
EPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
Because this action will delay conformity lapses that would
otherwise occur under existing regulations, EPA has determined that to
the extent this rule imposes any mandate within the meaning of the
Unfunded Mandates Act, this final action does not include a mandate
that may result in estimated costs of $100 million or more to State,
local, or tribal governments in the aggregate or to the private sector.
Therefore, EPA has not prepared a statement with respect to budgetary
impacts.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and Recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Intergovernmental relations, Ozone.
Dated: August 1, 1995.
Carol M. Browner,
Administrator.
40 CFR parts 51 and 93 are amended as follows:
PART 51--[AMENDED]
1. The authority citation for part 51 is amended to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
PART 93---[AMENDED]
2. The authority citation for part 93 is amended to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
Secs. 51.448 and 93.128 [Amended]
3. The identical texts of Secs. 51.448 and 93.128 are amended as
follows:
a. By redesignating paragraphs (b)(2) and (c)(2) as (b)(3) and
(c)(3);
b. By removing paragraphs (g)(1) and (g)(2) and redesignating
paragraph (g)(3) as (g)(1) and reserving paragraph (g)(2); and
c. By revising paragraphs (a)(3), (b)(1) introductory text, and
(d)(3), and adding new paragraphs (b)(2) and (c)(2).
The identical text of additions and revisions reads as follows:
Sec. ______. ____ Transition from the interim period to the control
strategy period.
(a) * * *
(3) Notwithstanding paragraph (a)(2) of this section, if EPA
disapproves the submitted control strategy implementation plan revision
but determines that the control strategy contained in the revision
would have been considered approvable with respect to requirements for
emission reductions if all committed measures had been submitted in
enforceable form as required by Clean Air Act section 110(a)(2)(A), the
conformity status of the transportation plan and TIP shall lapse on the
date that highway sanctions as a result of the disapproval are imposed
on the nonattainment area under section 179(b)(1) of the Clean Air Act,
unless another control strategy implementation plan revision is
submitted to EPA and found to be complete.
(b) Areas which have not submitted a control strategy
implementation plan revision.
(1) For CO, PM10 and NO2 areas whose Clean Air Act
deadline for submission of the control strategy implementation plan
revision is after November 24, 1993, and EPA has notified the State,
MPO, and DOT of the State's failure to submit a control strategy
implementation plan revision, which initiates the sanction process
under Clean Air Act sections 179 or 110(m):
(i) * * *
(ii) * * *
(2) For ozone nonattainment areas where EPA has notified the State,
MPO, and DOT of the State's failure to submit a control strategy
implementation plan revision required by Clean Air Act sections
182(c)(2)(A) and/or 182(c)(2)(B), failure to submit an attainment
demonstration for an intrastate moderate ozone nonattainment area that
chose to use the Urban Airshed Model for such demonstration, or failure
to submit an attainment demonstration for a multistate moderate ozone
nonattainment area, the conformity status of the transportation plan
and TIP shall lapse on the date that highway sanctions are imposed on
the nonattainment area for such failure under section 179(b)(1) of the
Clean Air Act.
* * * * *
(c) * * *
(2) In lieu of the provisions of paragraph (c)(1) of this section,
the conformity status of the transportation plan and TIP shall lapse on
the date that highway sanctions are imposed on the nonattainment area
under section
[[Page 40101]]
179(b)(1) of the Clean Air Act as a result of incompleteness, in ozone
nonattainment areas where EPA notifies the State, MPO, and DOT that the
following control strategy implementation plan revisions are
incomplete:
(i) The implementation plan revision due November 15, 1994, as
required by Clean Air Act sections 182(c)(2)(A), and/or 182(c)(2)(B);
(ii) The attainment demonstration required for moderate intrastate
ozone nonattainment areas which chose to use the Urban Airshed Model
for such demonstration and for multistate moderate ozone nonattainment
areas; or
(iii) The VOC reasonable further progress demonstration due
November 15, 1993, as required by Clean Air Act section 182(b)(1), if
EPA notes in its incompleteness finding as described in paragraph
(c)(1)(iii) of this section that the submittal would have been
considered complete with respect to requirements for emission
reductions if all committed measures had been submitted in enforceable
form as required by Clean Air Act section 110(a)(2)(A).
(iv) The consequences described in paragraph (c)(1) of this section
shall be nullified if such provisions have been applied as a result of
a failure described in paragraph (c)(2) of this section, and paragraph
(c)(2) of this section shall henceforth apply with respect to any such
failure.
* * * * *
(d) * * *
(3) Notwithstanding paragraph (d)(2) of this section, if EPA
disapproves the submitted control strategy implementation plan revision
but determines that the control strategy contained in the revision
would have been considered approvable with respect to requirements for
emission reductions if all committed measures had been submitted in
enforceable form as required by Clean Air Act section 110(a)(2)(A), the
conformity status of the transportation plan and TIP shall lapse on the
date that highway sanctions as a result of the disapproval are imposed
on the nonattainment area under section 179(b)(1) of the Clean Air Act,
unless another control strategy implementation plan revision is
submitted to EPA and found to be complete.
* * * * *
[FR Doc. 95-19400 Filed 8-4-95; 8:45 am]
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