[Federal Register Volume 60, Number 219 (Tuesday, November 14, 1995)]
[Rules and Regulations]
[Pages 57179-57186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27949]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5329-9]
RIN 2060-AF95


Transportation Conformity Rule Amendments: Miscellaneous 
Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action makes several changes to the current regulation 
requiring transportation plans, programs, and projects to conform to 
state air quality implementation plans.
    This action allows any transportation control measure from an 
approved state implementation plan (SIP) to proceed during a conformity 
lapse; aligns the date of conformity lapses with the date of 
application of Clean Air Act highway sanctions for any failure to 
submit or submission of an incomplete control strategy SIP; extends the 
grace period before which areas must determine conformity to a 
submitted control strategy implementation plan; establishes a grace 
period before which transportation plan and program conformity must be 
determined in newly designated nonattainment areas; and corrects the 
nitrogen oxides provisions of the transportation conformity rule 
consistent with the Clean Air Act and previous commitments made by EPA.
    A transportation conformity SIP revision consistent with these 
amendments must be submitted to EPA by 12 months from November 14, 
1995.

EFFECTIVE DATE: This regulation is effective December 14, 1995, except 
for Secs. 51.448(a)(1) and 93.128(a)(1) which will be effective 
November 14, 1995, and Secs. 51.394(b)(3)(i), 93.102(b)(3)(i), 
51.428(b)(1)(ii), and 93.118(b)(1)(ii) which will be effective February 
12, 1996, for the reasons explained in SUPPLEMENTARY INFORMATION.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Public Docket A-95-05. The docket is located in room M-1500 Waterside 
Mall (ground floor) at the Environmental Protection Agency, 401 M 
Street SW., 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: Meg Patulski, Transportation and 
Market Incentives Group, Regional and State Programs Division, U.S. 
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 
48105, (313) 741-7842.

SUPPLEMENTARY INFORMATION:

I. Background

    This 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). Conformity ensures that 
transportation planning does not produce new air quality violations, 
worsen existing violations, or delay timely attainment of national 
ambient air quality standards. According to the Clean Air Act, 
federally supported activities must conform to the implementation 
plan's purpose of attaining and maintaining these standards.
    This final rule is based on the August 29, 1995 proposed rule 
entitled, ``Transportation Conformity Rule Amendments: Miscellaneous 
Revisions'' (60 FR 44790) and comments received on that proposal. The 
public comment period for the proposed rule ended on September 28, 
1995.
    EPA also issued on August 29, 1995, an interim final rule entitled, 


[[Page 57180]]
``Transportation Conformity Rule Amendments: Authority for 
Transportation Conformity Nitrogen Oxides Waivers'' (60 FR 44762). The 
interim final rule changed the statutory authority for transportation 
conformity nitrogen oxides (NOX) waivers from Clean Air Act 
section 182(f) to section 182(b)(1), for areas subject to section 
182(b)(1). The interim final rule took effect on August 29, 1995, 
without prior notice and comment, and the subsequent public comment 
period ended on September 28, 1995. This final rule includes the 
provisions of the August 29 interim final rule, after completing 
notice-and-comment rulemaking procedures on such provisions.
    This final rule is the second in a series of three anticipated 
amendments to the transportation conformity rule. The first set of 
amendments was published as an interim final rule on February 8, 1995 
(60 FR 7449), and was finalized on August 7, 1995 (60 FR 40098). The 
first set of amendments aligned the dates of conformity lapses (i.e., 
halting of new federally funded highway/transit projects) due to SIP 
failures with the application of Clean Air Act highway sanctions for a 
few ozone areas and all areas with disapproved SIPs with a protective 
finding. The third set of amendments, which will be proposed shortly, 
will streamline the conformity rule and address other issues related to 
non-federal projects, the build/no-build test, adding projects to the 
transportation plan and transportation improvement program (TIP), and 
rural nonattainment areas.

II. Description of Final Rule

    This final rule makes changes from the proposed rule, involving 
transportation control measures (TCMs) and grace periods for new 
nonattainment areas. All other provisions of the proposal are included 
in this final rule without modification. EPA will not restate here its 
rationale for the changes which are identical to the August 29 
proposal. The reader is referred to the proposal notice for such 
discussions.

A. TCMs

    The proposed rule would have allowed TCMs in an approved SIP to 
proceed even if the conformity status of the current transportation 
plan and TIP lapses, provided the TCMs were in a previously conforming 
transportation plan and TIP.
    In the final rule, EPA is changing the provisions of the proposal 
in response to public comment such that any TCM in an approved SIP may 
proceed, regardless of whether there is a currently conforming 
transportation plan and TIP or whether the project was once included in 
a previously conforming transportation plan and TIP. However, this 
position does not alter or affect the title 23 (23 CFR Part 450) or 
Federal Transit Act requirements for the funding of TCMs. EPA 
acknowledges that the implementation of the Clean Air Act is done in 
conjunction with statewide and metropolitan planning requirements of 
the Intermodal Surface Transportation Efficiency Act (ISTEA). Most 
current and all future TCMs are subject to these provisions and are 
generally from a previously conforming transportation plan and TIP.
    EPA received public comment that a TCM which is in an approved SIP 
should be allowed to proceed at any point in time, regardless of 
whether or not the TCM was once included in a previously conforming 
transportation plan and TIP. The commenter stated that since SIP 
requirements are legally binding, as evidenced by the fact that failure 
to comply subjects the violator to enforcement action, EPA cannot 
restrict the implementation of a TCM in the context of conformity. 
Furthermore, given that approved SIPs must be implemented according to 
the Clean Air Act and sanctions can be imposed for nonimplementation, 
EPA cannot adopt a rule that has the effect of preventing TCMs in an 
approved SIP from being implemented.
    EPA agrees with the commenter. Although Clean Air Act sections 
176(c)(2) (C) and (D) require that the conforming transportation plan 
and TIP be used to determine whether a TCM conforms to an approved SIP, 
a TCM contained in an approved SIP must necessarily conform to the 
purpose of the SIP, as required by section 176(c)(1). By definition, a 
TCM in an approved SIP conforms to the SIP because it is contained in 
the SIP. To halt the implementation of TCMs in approved SIPs during a 
conformity lapse of a transportation plan and TIP would be contrary to 
the purpose of conformity and the approved SIP. EPA is not exempting 
TCMs from the requirement for a conformity determination, however. 
Also, where applicable, hot-spot analysis would still be required. TCMs 
are simply not required to satisfy Secs. 51.420 (93.114) and 51.422 
(93.115) because to require such compliance could prevent TCM 
implementation.
    Another commenter stated that any transportation project that is in 
an approved SIP and a previously conforming transportation plan and TIP 
should be allowed to proceed during a conformity lapse. EPA believes 
that this final rule's change to the proposal accommodates this 
comment, because all transportation projects that are in approved SIPs 
that require conformity determinations are TCMs. No transportation 
project would be approved into a SIP unless it was designed to reduce 
emissions from transportation activities, and these projects should be 
specifically identified as TCMs.
    Although EPA is changing the proposed rule in response to public 
comment, EPA does not foresee an instance as a practical matter where a 
TCM would be contained in an approved SIP without first meeting the 
transportation planning requirements contained in 23 CFR Part 450 and 
49 CFR Part 613. In order for EPA to approve a SIP, the measures 
contained in the SIP must have commitments from appropriate agencies 
and have adequate funding and resources as stipulated in section 
110(a)(2)(E) of the Clean Air Act.
    In the case of TCMs, EPA expects this to be demonstrated by the 
project's inclusion in a fiscally constrained and conforming 
transportation plan and TIP.
    Furthermore, EPA does not intend to approve SIPs containing TCMs 
that have not been coordinated through the transportation planning 
process, because the Clean Air Act and ISTEA require that an integrated 
transportation/air quality planning process be used as the vehicle to 
identify effective TCMs and ensure their funding sources. The 
interagency consultation required by the conformity rule and the 
States' conformity SIPs is intended to ensure that the transportation 
planning process becomes a routine component of any analysis involving 
TCMs slated for inclusion in a SIP. Furthermore, as a practical matter, 
a project cannot receive federal highway or transit funds or Federal 
Highway Administration (FHWA)/Federal Transit Administration (FTA) 
approval unless it is contained in a fiscally constrained and 
conforming transportation plan and TIP that has been approved through 
the transportation planning process, under the requirements of 23 CFR 
Part 450 and 49 CFR Part 613.
    Finally, projects in approved SIPs remain subject to other planning 
requirements, such as provisions of the National Environmental Policy 
Act and ISTEA, which further stipulate that these projects be reviewed 
through the transportation process prior to approval and 
implementation.

[[Page 57181]]


B. Grace Period for New Nonattainment Areas

    Like the proposed rule, the final rule allows newly designated 
nonattainment areas a 12-month grace period before conformity 
determinations to the transportation plan and TIP are required. In 
response to public comment, EPA clarifies in the final rule that this 
grace period also applies if a nonattainment area's boundaries are 
newly expanded. Transportation plan and TIP conformity determinations 
will not be required to include transportation projects in the portion 
of the area that is newly added until 12 months from the date of the 
boundary change. Although the proposed rule did not specifically 
discuss applying the 12-month grace period to newly expanded areas, EPA 
believes that this is a logical extension of the proposed rule. EPA 
believes a grace period is appropriate because transportation plan and 
TIP conformity determinations will not have included projects in the 
new portion of the nonattainment area prior to the expansion. As 
described in the proposal, Clean Air Act section 176(c) allowed a 
similar grace period for 12 months after the date of enactment of the 
Clean Air Act Amendments of 1990. EPA believes it is consistent with 
Congressional intent and appropriate to include such a grace period for 
newly designated areas to prevent short-term adverse impacts in the 
implementation of transportation projects immediately following 
redesignation.

C. Grace Period for Determination of Conformity to Newly Submitted SIPs

    Like the proposed rule, this final rule extends the grace period 
before which areas need to complete conformity determinations to newly 
submitted SIPs. Under this final rule and for reasons explained in the 
proposal, conformity to a newly submitted SIP must now be determined 
within 18 months of its submission. This grace period provision in 
Secs. 51.448(a)(1) and 93.128(a)(1) is effective immediately.
    This grace period will prevent the conformity status of certain 
plans and TIPs from lapsing on November 15, 1995, in several moderate 
and above ozone areas that have not completed conformity determinations 
to newly submitted SIPs. This conformity lapse would be contrary to the 
public interest because as explained in the proposal EPA now 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 provision of the rule effective by November 15, 
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 grace period provision contained in this 
final rule effective on publication. In addition, the extension of this 
grace period 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).
    The other provisions of this final rule will be effective on 
December 14, 1995, except for Secs. 51.394(b)(3)(i), 93.102(b)(3)(i), 
51.428(b)(1)(ii), and 93.118(b)(1)(ii) which will be effective 90 days 
from November 14, 1995.

D. Alignment of Certain Conformity Lapses With Sanctions

    Like the proposed rule, this final rule does not impose a 
transportation plan/conformity lapse as a result of failure to submit 
or submission of an incomplete ozone, carbon monoxide (CO), particles 
with an aerodynamic diameter of less than or equal to a nominal 10 
micrometers (PM-10), or nitrogen dioxide (NO2) control strategy 
SIP. 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.
    Like the proposed rule, this final rule does not change the timing 
of conformity lapse for disapproval of any control strategy SIP without 
a protective finding. This issue will be addressed in a forthcoming 
proposal.

E. NOX Budgets

    Like the proposed rule, this final rule requires consistency with 
NOx motor vehicle emissions budgets in control strategy SIPs, 
regardless of whether a NOx waiver has previously been granted. 
However, the NOx build/no-build test and less-than-1990 tests 
would not apply to ozone nonattainment areas receiving a NOx 
waiver. Furthermore, as described in the Response to Comment section of 
today's action, some flexibility is possible for areas that have been 
issued a NOx waiver based upon air quality modeling data. Please 
refer to that section for further discussion on this issue.
    The NOx budget provisions will be effective 90 days from 
November 14, 1995. In response to public comment, EPA has delayed this 
effective date to prevent difficulties in identifying appropriate 
NOx budgets from disrupting conformity determinations that are 
currently underway.
    EPA believes that Sierra Club v. EPA, 719 F.2d 436 (DC Cir. 1983), 
gives EPA the authority to delay the effective date of the NOx 
budget provisions in today's action. EPA believes that Sierra Club 
provides a legal basis to allow grandfathering when there is an abrupt 
departure from requirements that affected parties have previously 
relied upon. Although EPA had previously announced that the NOx 
budget changes to the transportation conformity rule would be contained 
in this action, comments on the proposal indicate that certain areas 
are not prepared for these provisions to be effective within the usual 
30-day timeframe following publication of the final rule. Therefore, 
EPA finds good cause to make these provisions effective 90 days from 
November 14, 1995.

F. NOx Waiver Authority

    Like the interim final rule, the final rule changes the statutory 
authority for transportation conformity NOx waivers from Clean Air 
Act section 182(f) to section 182(b)(1), for areas subject to section 
182(b)(1). In general, NOx waivers are findings by the EPA 
Administrator under Clean Air Act section 182(f) or 182(b) that 
additional reductions of NOx would not contribute to attainment of 
the ozone national ambient air quality standards by the statutory 
deadline. The interim final rule will remain in effect until December 
14, 1995, at which time the final rule will be effective and supersede 
the interim final rule. As a result, the requirements for NOx 
waivers granted after August 29, 1995, remain the same and are not 
altered by today's action.

G. Conformity SIP Revision

    A conformity SIP revision consistent with these amendments is 
required to be submitted to EPA 12 months from November 14, 1995. 
Section 176(c)(4)(C) of the Clean Air Act as amended in 1990 allowed 
States 12 months from the promulgation of the original transportation 
conformity rule to submit conformity SIP revisions. EPA believes that 
it is consistent with the statute to provide states a similar time 
period to revise their conformity SIPs in response to these rule 
revisions.

III. Response to Comments

    Twenty comments on the proposed rule and interim final rule were 
submitted, including comments from MPOs, state and local air and 
transportation agencies, neighborhood associations, and environmental 
groups. 

[[Page 57182]]
The majority of the comments supported the proposed rule and the 
interim final rule. A complete response to comments document is in the 
docket. Major comments and EPA responses are summarized here.

A. TCMs

    Some comments suggested that TCMs from a submitted (and not yet 
approved) SIP should be allowed to proceed at any time, without regard 
to the conformity status of the transportation plan and TIP. However, 
Clean Air Act section 176(c) requires conformity to the ``applicable 
implementation plan.'' Clean Air Act section 302(q) defines an 
applicable implementation plan as a portion (or portions) of the 
current implementation plan which has (have) been approved or 
promulgated by EPA. Projects from a submitted SIP that has not yet been 
approved do not necessarily conform to the ``applicable'' (approved) 
SIP. In order for such projects, including TCMs, to conform, there must 
be a conforming transportation plan and TIP, as required by Clean Air 
Act sections 176(c)(2) (C) and (D). For these reasons, only TCMs which 
are included in an approved SIP are affected by today's rule change 
allowing implementation of TCMs in an approved SIP to proceed during a 
transportation plan and TIP conformity lapse.
    Similar comments suggesting ways in which to increase the scope and 
impact of this final rule changes regarding TCMs are not possible due 
to the reasons already outlined above. For example, one commenter 
suggested that any new project with a demonstrated emission reduction 
benefit, regardless of whether it is in an approved SIP, should be 
allowed to proceed even if it was not in a previously conforming 
transportation plan and TIP. EPA could not make this change because the 
agency has no evidence that such projects conform to the approved SIP.

B. Grace Period for New Nonattainment Areas

    One commenter opposed the 12-month grace period for newly 
designated nonattainment areas and stated that this grace period is not 
consistent with Clean Air Act section 176(c). As stated in the proposed 
rule, section 176(c)(3)(B)(i) allowed a similar grace period for 12 
months after the date of enactment of the Clean Air Act Amendments of 
1990. EPA continues to believe it is appropriate to implement section 
176(c) so as to allow this same grace period for newly designated 
areas. The existence of the grace period in section 176(c) indicates 
that Congress clearly did not wish to immediately halt transportation 
activities upon application of section 176(c) to an area.
    The commenter suggested that there is sufficient time during the 
redesignation process in which areas could plan ahead and prepare to 
meet conformity requirements upon being designated to a nonattainment 
area. However, as stated in the preamble of the proposed rule, 
conformity determinations take time and the 12-month grace period 
provides local and state transportation agencies with the temporary 
relief that is necessary for these agencies to complete future 
conformity requirements. Further, such agencies do not control the 
timing of redesignation requests by state air quality agencies.
    The commenter also disagreed that Sierra Club v. EPA, 719 F.2d 436 
(DC Cir. 1983), gave EPA the authority to grant such a grace period to 
newly designated nonattainment areas. EPA believes that Sierra Club 
provides a legal basis to allow grandfathering when there is an abrupt 
departure from requirements that affected parties have previously 
relied upon. Although the case did involve retroactivity, the legal 
analysis applies equally to grandfathering from new requirements, and 
EPA has historically relied on the case in this context. See, e.g., 54 
FR 2214, 2219 (Jan. 19, 1989); 59 FR 13044, 13057 (March 18, 1994). 
Although the Court of Appeals did not uphold all of the grandfathering 
provisions in Sierra Club, the Court did uphold grandfathering when 
supported by reliance. Attainment areas have traditionally relied upon 
not being required to fulfill conformity requirements that are mandated 
for nonattainment areas. Immediate application of such requirements to 
newly designated areas without an appropriate transition period clearly 
represents a significant departure from past practice. The commenter 
points to Supreme Court case law indicating that if any reliance on 
prior law were enough to shield everyone from all changed requirements, 
all laws would be frozen forever. However, this case law does not 
prohibit limited grandfathering from new complex requirements for a 
short time period to allow areas time to complete activities necessary 
to comply with such requirements, where such areas had relied on past 
law that did not impose such requirements. Based on the Court's 
interpretations of reliance in Sierra Club, EPA believes that this case 
supports its authority to grant a 12-month grace period to newly 
designated nonattainment areas prior to subjecting such areas to 
transportation conformity requirements.

C. Grace Period for Determination of Conformity to Newly Submitted SIPs

    Several commenters were concerned that the 18-month grace period 
before which a conformity determination is required for a newly 
submitted SIP was not extended to those areas that have already 
submitted a SIP revision. Specifically, the comments raised concerns 
surrounding the equity of the proposed grace period.
    The proposed rule states that the grace period would begin upon the 
date of a new SIP's submission. This also applies to SIPs submitted 
prior to today's rule change. Therefore, although areas that have 
already submitted a SIP prior to this final action will not benefit 
from the grace period extension as much as areas that have not yet 
submitted a SIP, they will still get the full 18-month period from SIP 
submission to make a conformity determination. EPA believes that this 
final action makes the conformity rule more equitable because every 
area has the same time period in which to determine conformity to newly 
submitted SIPs. Prior to this final action, time periods for completing 
conformity determinations were calculated starting from SIP submittal 
deadlines.
    One commenter stated that EPA did not provide adequate rationale in 
the preamble of the proposed rule regarding the selection of the length 
of this grace period. The commenter further suggested that 12 months 
would be a more appropriate grace period length and would be consistent 
with prior EPA policy regarding this issue. Based on experience with 
the transportation conformity rule to date, EPA continues to believe 
that 18 months reflects the most realistic timeframe required for 
nonattainment areas to determine conformity to newly submitted SIPs. 
Conformity determinations are typically completed by local 
transportation planners on an annual basis. If the grace period was 12 
months instead of 18 months, a newly submitted SIP could be introduced 
into a local conformity cycle at a time in that cycle that is 
disruptive to the local transportation planning process. Such a 
disruption could necessitate that additional time be required to 
complete the conformity determination, which may then delay the 
implementation of local transportation projects. EPA's experience with 
the existing 12-month grace period has convinced the agency that 12 
months is an unrealistic grace period in this context.

[[Page 57183]]


D. Alignment of Certain Conformity Lapses With Sanctions

    All commenters that commented on this issue supported the alignment 
of conformity lapses due to SIP failures with Clean Air Act sanctions. 
In addition, some commenters advocated aligning lapses and sanction 
deadlines even in the case of SIP disapprovals without a protective 
finding. As utilized under transportation conformity regulations, a 
protective finding is a mechanism that would allow a submitted SIP's 
motor vehicle emissions budget to be used for conformity purposes even 
though the SIP does not fulfill all requirements in enforceable form, 
as stipulated by Clean Air Act section 110(a)(2)(A). This conclusion is 
based on a determination by EPA that a SIP would have been approvable 
with respect to requirements for emissions reductions if all of the 
section 110(a)(2)(A) requirements had been met. Thus, a protective 
finding allows an area to proceed with transportation planning and 
project implementation while the area revises the SIP. In contrast, a 
SIP that is disapproved without a protective finding does not contain 
an emissions budget that could be used for transportation conformity 
purposes. A protective finding only allows the SIP's motor vehicle 
emissions budget to be used for conformity purposes; it does not 
guarantee that the SIP will eventually be approved.
    EPA has been aware of stakeholder concerns regarding conformity 
lapse following SIP disapprovals without protective findings, and as 
EPA has previously stated, this issue will be raised for comment in the 
preamble of the upcoming proposal of the third set of conformity 
amendments. EPA could not take final action on this issue today because 
it had never proposed to do so.

E. NOX Budgets

    Several commenters stated that consistency with a NOX budget 
should not be required for areas that have received a NOX waiver 
from EPA based on air quality modeling. NOX waivers are findings 
by the EPA Administrator under Clean Air Act section 182(b) or 182(f) 
that additional reductions of NOX would not contribute to 
attainment of the ozone national ambient air quality standards by the 
statutory deadline. NOX waivers may be granted on the basis of 
modeling demonstrations or monitoring data.
    For the reasons described in the preamble to the August 29, 1995, 
proposal, EPA continues to believe that the Clean Air Act requires 
consistency with NOX motor vehicle emissions budgets in control 
strategy SIPs, regardless of whether a NOX waiver has previously 
been granted. The demonstration typically utilized to justify a 
NOX waiver does not necessarily address the level of NOX 
emissions necessary for an area to attain and maintain the ozone 
standard. That is, a NOX waiver's demonstration that additional 
NOX reductions would not contribute to attainment does not 
necessarily mean that NOX increases would not affect an area's 
ability to attain and maintain the ozone standard. The purpose of 
conformity to a NOX budget is to prevent NOX emissions from 
reaching levels that would threaten attainment or maintenance of the 
ozone standard.
    The commenters opposing a NOX budget test in areas with 
modeling-based NOX waivers state that the attainment 
demonstrations in such areas do not include NOX inventories or 
NOX projections with sufficient accuracy to warrant their use in 
determining conformity. Although the attainment demonstration contains 
NOX projections that EPA could treat as an ``implicit budget,'' 
areas may not have performed the modeling necessary to determine how 
high NOX emissions could be while remaining consistent with 
attainment and maintenance of the ozone standard. The projections that 
could act as an implicit budget could thus be unnecessarily 
constraining, and exceeding those projections may not have real air 
quality consequences. Furthermore, commenters argue that if the 
modeling that would determine a maximum NOX motor vehicle 
emissions budget is not a necessary part of the attainment 
demonstration, it should not be required solely for conformity 
purposes.
    Although EPA is retaining in the final rule the requirement for 
consistency with NOX emissions budgets for all ozone areas with 
control strategy SIPs, including areas that received NOX waivers, 
EPA agrees that in some circumstances it is appropriate to interpret 
the control strategy SIP as not establishing a NOX motor vehicle 
emissions budget. EPA may conclude in such circumstances that modeling-
based sensitivity analyses included in the attainment or maintenance 
demonstration are sufficient to indicate that motor vehicle NOX 
emissions could grow without limit over the transportation planning 
horizon because the area would still attain the ozone standard without 
jeopardizing attainment in other areas. In such a case, EPA would agree 
that the control strategy SIP does not establish a NOX motor 
vehicle emissions budget, and the NOX budget test would not have 
to be satisfied for transportation conformity purposes.
    For example, EPA expects that it would be able to interpret the 
attainment demonstration as not establishing a NOX motor vehicle 
emissions budget if it included modeling demonstrating that additional 
reductions of NOX would increase peak ozone concentrations. In 
contrast, modeling that did not examine the effect of NOX 
reductions would not be sufficient to show that the attainment 
demonstration did not establish a NOX motor vehicle emissions 
budget. Also, areas with a SIP requirement to control NOX 
emissions in order for downwind nonattainment areas to attain the ozone 
standard would have an established NOX budget, because of the need 
to indicate the level of NOX reductions required.
    In addition, it is important to note that areas that are in 
nonattainment or maintenance for both PM10 and ozone may have a 
NOX motor vehicle emissions budget established in the PM10 
SIP, regardless of whether the area has a NOX waiver for ozone 
purposes or the area's ozone attainment or maintenance SIP establishes 
a NOX motor vehicle emissions budget.
    EPA continues to believe that, in general, control strategy SIPs by 
their nature establish motor vehicle emissions budgets, whether or not 
these budgets are explicitly stated. Motor vehicle emissions budgets 
are implicitly a feature of control strategy SIPs, and a statement in 
the SIP that no motor vehicle emissions budget is established does not 
necessarily relieve the requirement to demonstrate consistency with the 
SIP's implicit budget. However, as described above, EPA believes that 
there are special circumstances under which EPA would agree that the 
attainment or maintenance SIP demonstrates that no motor vehicle 
emissions budget is necessary, and the budget test is not required for 
transportation conformity purposes.
    EPA encourages areas that are developing SIPs to explicitly state 
the motor vehicle emissions budget(s) for each relevant pollutant or 
pollutant precursor. For SIPs that have already been submitted, 
agencies should work through the interagency consultation process to 
identify the motor vehicle emissions budget(s) that is (are) not 
explicitly stated. EPA will not consider a submitted SIP adequate for 
transportation conformity purposes unless it either includes explicit 
motor vehicle emissions budgets or adequate information to establish 
budgets, or EPA 

[[Page 57184]]
has agreed that the SIP sufficiently demonstrates that a NOX motor 
vehicle emissions budget is not necessary.

F. Additional Comments Not Addressed in the Proposal

    Several commenters also raised concerns about aspects of the 
transportation conformity rule which are not relevant to this action, 
including the build/no-build test, non-federal projects, and adding 
projects to the transportation plan and TIP. These comments do not 
affect whether EPA should proceed with this final action, but EPA will 
be considering these and other issues, such as issues related to rural 
nonattainment areas, in the context of the third set of conformity rule 
amendments.
    EPA did not address in this final rule the issues contained in the 
Environmental Defense Fund et al.'s Petition for Reconsideration 
relating to the November 24, 1993, transportation conformity rule that 
may still be outstanding. Many of the issues contained in this petition 
were beyond the scope of this rulemaking. The third set of conformity 
amendments will address several of these issues, and EPA intends to 
formally respond to others at a later date.

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 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 or entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel 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. 
Therefore, this notice was not subject to OMB review under the 
Executive Order 12866.

B. Reporting and Recordkeeping Requirements

    This rule does not contain any information collection requirements 
from EPA which require approval by 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 these regulations will not have a 
significant impact on a substantial number of small entities. This 
regulation affects federal agencies and metropolitan planning 
organizations, which by definition are designated only for metropolitan 
areas with a population of at least 50,000. These organizations do not 
constitute small entities.
    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.
    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: November 6, 1995.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR parts 51 and 93 are 
amended as follows:

PARTS 51 AND 93 --[AMENDED]

    1. The authority citation for parts 51 and 93 continues to read as 
follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. The identical text of Secs. 51.392 and 93.101 is amended by 
adding a definition in alphabetical order to read as follows:


Sec.   .    Definitions.

* * * * *
    Protective finding means a determination by EPA that the control 
strategy contained in a submitted control strategy implementation plan 
revision would have been considered approvable with respect to 
requirements for emissions reductions if all committed measures had 
been submitted in enforceable form as required by Clean Air Act section 
110(a)(2)(A).
* * * * *
    3. The identical text of Secs. 51.394 and 93.102 is amended by 
revising paragraph (b)(3)(i) and adding paragraph (d) to read as 
follows:


Sec.   .    Applicability.

* * * * *
    (b) * * *
    (3) * * *
    (i) Volatile organic compounds and nitrogen oxides in ozone areas;
* * * * *
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas which have been in attainment for either ozone, CO, PM-10, or 
NO2 since 1990 and are subsequently redesignated to nonattainment 
for any of these pollutants, the provisions of this subpart shall not 
apply for such pollutant for 12 months following the date of final 
designation to nonattainment.
    4. Section 51.396(a) is amended by adding a sentence after the 
second sentence to read as follows: 

[[Page 57185]]



Sec. 51.396  Implementation plan revision.

    (a) * * * Further revisions to the implementation plan required by 
amendments to this subpart must be submitted within 12 months of the 
date of publication of such final amendments to this subpart. * * *
* * * * *
    5. Section 51.420 is revised to read as follows:


Sec. 51.420  Criteria and procedures: Currently conforming 
transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval. This 
criterion applies during all periods. It is satisfied if the current 
transportation plan and TIP have been found to conform to the 
applicable implementation plan by the MPO and DOT according to the 
procedures of this subpart.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous 
transportation plan or TIP expire once the current plan or TIP is found 
to conform by DOT. The conformity determination on a transportation 
plan or TIP will also lapse if conformity is not determined according 
to the frequency requirements of Sec. 51.400.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart are satisfied.
    6. Section 93.114 is revised to read as follows:


Sec. 93.114  Criteria and procedures: Currently conforming 
transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval. This 
criterion applies during all periods. It is satisfied if the current 
transportation plan and TIP have been found to conform to the 
applicable implementation plan by the MPO and DOT according to the 
procedures of this subpart.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous 
transportation plan or TIP expire once the current plan or TIP is found 
to conform by DOT. The conformity determination on a transportation 
plan or TIP will also lapse if conformity is not determined according 
to the frequency requirements of Sec. 93.104.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart are satisfied.
    7. The identical text of Secs. 51.422 and 93.115 are amended by 
adding a sentence to the end of paragraph (a) and by adding paragraph 
(d) as follows:


Sec.   .    Criteria and procedures: Projects from a plan and TIP.

    (a) * * * Special provisions for TCMs in an applicable 
implementation plan are provided in paragraph (d) of this section.
* * * * *
    (d) TCMs. This criterion is not required to be satisfied for TCMs 
specifically included in an applicable implementation plan.
    8. The identical text of Secs. 51.428 and 93.118 is amended by 
revising paragraph (b)(1)(ii) to read as follows:


Sec.   .    Criteria and procedures: Motor vehicle emissions budget 
(transportation plan).

* * * * *
    (b) * * *
    (1) * * *
    (ii) NOX as an ozone precursor;
* * * * *
    9. Section 51.448 is amended by removing paragraph (g), 
redesignating paragraphs (h) and (i) as (g) and (h), and revising 
paragraphs (a) through (d) and the newly designated paragraph (g) to 
read as follows:


Sec. 51.448  Transition from the interim period to the control strategy 
period.

    (a) Control strategy implementation plan submissions. (1) The 
transportation plan and TIP must be demonstrated to conform by 18 
months from the date of the State's initial submission to EPA of each 
control strategy implementation plan establishing a motor vehicle 
emissions budget. If conformity is not determined by 18 months from the 
date of submission of such control strategy implementation plan, the 
conformity status of the transportation plan and TIP will lapse, and no 
new project-level conformity determinations may be made, until the 
transportation plan and TIP have been demonstrated to conform.
    (2) For areas not yet in the control strategy period for a given 
pollutant, conformity shall be demonstrated using the motor vehicle 
emissions budget(s) in a submitted control strategy implementation plan 
revision for that pollutant beginning 90 days after submission, unless 
EPA declares such budget(s) inadequate for transportation conformity 
purposes. The motor vehicle emissions budget(s) may be used to 
determine conformity during the first 90 days after its submission if 
EPA agrees that the budget(s) are adequate for conformity purposes.
    (b) Disapprovals. (1) If EPA disapproves the submitted control 
strategy implementation plan revision and so notifies the State, MPO, 
and DOT, which initiates the sanction process under Clean Air Act 
section 179 or 110(m), the conformity status of the transportation plan 
and TIP shall lapse 120 days after EPA's disapproval, and no new 
project-level conformity determinations may be made. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (2) Notwithstanding paragraph (b)(1) of this section, if EPA 
disapproves the submitted control strategy implementation plan revision 
but makes a protective finding, 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. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (c) Failure to submit and incompleteness. For areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit or 
submission of an incomplete control strategy implementation plan 
revision, which initiates the sanction process under Clean Air Act 
section 179 or 110(m), 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, unless the failure has been remedied and acknowledged by 
a letter from the EPA Regional Administrator.
    (d) Federal implementation plans. When EPA promulgates a federal 
implementation plan that contains motor vehicle emissions budget(s) as 
a result of a State failure, the conformity lapse imposed by this 
section because of that State failure is removed.
* * * * *
    (g) Nonattainment areas which are not required to demonstrate 
reasonable further progress and attainment. If an area listed in 
Sec. 51.464 submits a control strategy implementation plan revision, 
the requirements of paragraphs (a) and 

[[Page 57186]]
(e) of this section apply. Because the areas listed in Sec. 51.464 are 
not required to demonstrate reasonable further progress and attainment 
the provisions of paragraphs (b) and (c) of this section do not apply 
to these areas.
* * * * *
    10. Section 93.128 is amended by removing paragraph (g), 
redesignating paragraphs (h) and (i) as (g) and (h), and revising 
paragraphs (a) through (d) and the newly designated paragraph (g) to 
read as follows:


Sec. 93.128  Transition from the interim period to the control strategy 
period.

    (a) Control strategy implementation plan submissions. (1) The 
transportation plan and TIP must be demonstrated to conform by 18 
months from the date of the State's initial submission to EPA of each 
control strategy implementation plan establishing a motor vehicle 
emissions budget. If conformity is not determined by 18 months from the 
date of submission of such control strategy implementation plan, the 
conformity status of the transportation plan and TIP will lapse, and no 
new project-level conformity determinations may be made, until the 
transportation plan and TIP have been demonstrated to conform.
    (2) For areas not yet in the control strategy period for a given 
pollutant, conformity shall be demonstrated using the motor vehicle 
emissions budget(s) in a submitted control strategy implementation plan 
revision for that pollutant beginning 90 days after submission, unless 
EPA declares such budget(s) inadequate for transportation conformity 
purposes. The motor vehicle emissions budget(s) may be used to 
determine conformity during the first 90 days after its submission if 
EPA agrees that the budget(s) are adequate for conformity purposes.
    (b) Disapprovals. (1) If EPA disapproves the submitted control 
strategy implementation plan revision and so notifies the State, MPO, 
and DOT, which initiates the sanction process under Clean Air Act 
section 179 or 110(m), the conformity status of the transportation plan 
and TIP shall lapse 120 days after EPA's disapproval, and no new 
project-level conformity determinations may be made. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (2) Notwithstanding paragraph (b)(1) of this section, if EPA 
disapproves the submitted control strategy implementation plan revision 
but makes a protective finding, 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. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (c) Failure to submit and incompleteness. For areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit or 
submission of an incomplete control strategy implementation plan 
revision, which initiates the sanction process under Clean Air Act 
sections 179 or 110(m), 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, unless the failure has been remedied and 
acknowledged by a letter from the EPA Regional Administrator.
    (d) Federal implementation plans. When EPA promulgates a federal 
implementation plan that contains motor vehicle emissions budget(s) as 
a result of a State failure, the conformity lapse imposed by this 
section because of that State failure is removed.
* * * * *
    (g) Nonattainment areas which are not required to demonstrate 
reasonable further progress and attainment. If an area listed in 
Sec. 93.136 submits a control strategy implementation plan revision, 
the requirements of paragraphs (a) and (e) of this section apply. 
Because the areas listed in Sec. 93.136 are not required to demonstrate 
reasonable further progress and attainment the provisions of paragraphs 
(b) and (c) of this section do not apply to these areas.
* * * * *


Secs. 51.452 and 93.130  [Amended]

    11. The identical text of Secs. 51.452 and 93.130 is amended by 
redesignating paragraph (b)(5) as paragraph (a)(6); and in paragraph 
(c)(1) by revising the references, ``paragraph (a)'' to read 
``paragraph (b)'' in two places.

[FR Doc. 95-27949 Filed 11-13-95; 8:45 am]
BILLING CODE 6560-50-P