[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Proposed Rules]
[Pages 66832-66837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30903]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[FRL-6481-9]
RIN 2060-AI76


Transportation Conformity Amendment: Deletion of Grace Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to delete a provision of the transportation 
conformity rule that was overturned by the U.S. Court of Appeals for 
the District of Columbia Circuit (Sierra Club v. EPA, et al., 129 F.3d 
137 (D.C. Cir. 1997)). In 1995, we amended the conformity rule so that 
new nonattainment areas would have a one-year grace period before 
transportation conformity began applying. In 1997, the court overturned 
this grace period. This action formally deletes the provision from the 
transportation conformity rule in compliance with the court ruling.
    In addition, we discuss in this document some issues that were 
raised in a Petition for Reconsideration of the original transportation 
conformity rule (finalized November 24, 1993). We are not proposing any 
changes to the conformity rule in response to these issues.
    We are required by a court settlement to finalize rulemaking on 
these issues by December 31, 1999. We agreed to this settlement in 1998 
in response to litigation by the Environmental Defense Fund.
    Transportation conformity is a Clean Air Act requirement for 
transportation plans, programs, and projects to conform to state air 
quality plans. Conformity to a state air quality plan means that 
transportation activities will not produce new air quality violations, 
worsen existing violations, or delay timely attainment of the national 
air quality standards.
    Our transportation conformity rule establishes the criteria and 
procedures for determining whether or not transportation activities 
conform to the state air quality plan.

DATES: Written comments on this proposal must be submitted on or before 
December 30, 1999.

ADDRESSES: Interested parties may submit written comments in response 
to this rule (in duplicate, if possible) to: Air and Radiation Docket 
and Information Center, U.S. Environmental Protection Agency, 
Attention: Docket No. A-99-35, 401 M Street, SW., Washington, DC 20460. 
(Those desiring notification of receipt of comments must include a 
self-addressed, stamped postcard).
    Materials relevant to this rulemaking are in Public Docket A-99-35 
at the above EPA address in room M-1500 Waterside Mall (ground floor). 
You may look at them from 8:00 a.m. to 5:30 p.m. on weekdays, except 
holidays. You may have to pay a reasonable fee for copying docket 
material.
    The notice of proposed rulemaking is also available electronically 
from our web site. See SUPPLEMENTARY INFORMATION for information on 
accessing and downloading files.

FOR FURTHER INFORMATION CONTACT: Laura Voss, Transportation and Market 
Incentives Group, Regional and State Programs Division, U.S. 
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 
48105, [email protected]. (734) 214-4858.

SUPPLEMENTARY INFORMATION: You can access and download files on your 
first call using a personal computer according to the following 
information:

Internet Web Sites
    http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired 
date or use Search feature)
          OR
    http://www.epa.gov/OMSWWW/ (look in What's New or under the 
Conformity file area)

A version should be available today on any of the above-listed sites. 
Please note that you may see format changes due to differences in 
software.

Regulated Entities

    Entities potentially regulated by the conformity rule are those 
which adopt, approve, or fund transportation plans, programs, or 
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories 
and entities include:

------------------------------------------------------------------------
                                                Examples of regulated
                 Category                             entities
------------------------------------------------------------------------
Local government..........................  Local transportation and air
                                             quality agencies.
State government..........................  State transportation and air
                                             quality agencies.
Federal government........................  Department of Transportation
                                             (Federal Highway
                                             Administration and Federal
                                             Transit Administration).
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
rule. This table lists the types of entities that EPA is now aware 
could potentially be regulated by the conformity rule. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your organization is regulated by this action, you should 
carefully examine the applicability requirements in Sec. 93.102 of the 
conformity rule. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    The contents of this preamble are listed in the following outline:

I. Background
II. How Soon Does Conformity Apply to a New Nonattainment Area?
III. Issues From Petition for Reconsideration
    A. Fiscal Constraint
    B. Horizon Years for Hot-Spot Analyses
    C. Assumptions Regarding Regional Distribution of Emissions
    D. Credit for Delayed TCMs
IV. How Would this Action Affect Conformity SIPs?
V. Administrative Requirements

I. Background

    In 1998, we entered into a settlement with the Environmental 
Defense Fund (EDF) in response to litigation. We agreed to finalize 
rulemaking by December 31, 1999, to repeal the grace period in 40 CFR 
93.102(d) and respond to four issues identified in EDF's May 1994 
Petition for Reconsideration of the original conformity rule.
    Section 93.102(d) and the four issues from the petition for 
reconsideration are described below.
    The original conformity rule was finalized on November 24, 1993 (58 
FR 62188). We subsequently amended the rule on August 7, 1995 (60 FR 
40098), November 14, 1995 (60 FR 57179), and August 15, 1997 (62 FR 
43780).

[[Page 66833]]

II. How Soon Does Conformity Apply to a New Nonattainment Area?

    According to a November 4, 1997, court decision, conformity must 
apply as soon as we designate an area nonattainment. As a result, we 
are proposing to delete Sec. 93.102(d) of the conformity rule. This 
section allowed newly designated nonattainment areas a one-year grace 
period before conformity starts applying.
    We included this provision in our November 14, 1995, conformity 
amendments (60 FR 57179). However, the Sierra Club challenged it and 
the court overturned it.
    Therefore, as soon as we designate your area as nonattainment, you 
must have a conforming transportation plan and transportation 
improvement program (TIP) in order to approve transportation projects. 
This plan and TIP must conform with respect to all pollutants for which 
the area is designated nonattainment. You may have to delay approving 
projects until this is done.
    Since designation is done through notice-and-comment rulemaking, 
you will be aware of pending designations at the time of proposal and 
will have the time until the final designation is effective to develop 
a conforming plan and TIP.

III. Issues From Petition for Reconsideration

    On May 26, 1994, the Environmental Defense Fund, the Natural 
Resources Defense Council, and the Sierra Club Legal Defense Fund 
submitted to EPA a Petition for Reconsideration of the November 1993 
conformity rule. We have already responded to most of the concerns 
raised in this petition through previous conformity amendments.
    However, there are four outstanding issues which we agreed to 
reconsider and respond to through this rulemaking. As explained below, 
we have now reconsidered these issues. However, we are not proposing 
any changes to the existing conformity rule as a result of our 
reconsideration.
    The full Petition for Reconsideration is in the docket for this 
proposal (see ADDRESSES).

A. Fiscal Constraint

1. What Is the Issue?
    As described in issue 6 of the Petition for Reconsideration, the 
petitioners believe that we should have adopted our own regulatory 
language requiring transportation plans and TIPs to be fiscally 
constrained, rather than referencing the Department of Transportation's 
(DOT's) metropolitan planning regulations. These DOT regulations 
require fiscally constrained transportation plans and TIPs; that is, 
that the proposed projects in plans and TIPs must be consistent with 
already available or projected sources of revenue.
    The petitioners are concerned that DOT could unilaterally modify 
its regulations. The petitioners believe that by referencing DOT's 
planning regulations, we have unlawfully delegated our rulemaking 
authority to DOT.
    In addition, the petitioners object that DOT's metropolitan 
planning regulations do not properly implement the Intermodal Surface 
Transportation Efficiency Act's (ISTEA's) funding requirements for 
TIPs. ISTEA has since been reauthorized as the Transportation Equity 
Act for the 21st Century, or TEA-21.
    2. What Is EPA's Response?
    We believe that it is appropriate to refer to DOT's regulations on 
fiscal constraint for several reasons. First, the Clean Air Act does 
not direct us to issue regulations regarding fiscal constraint. 
Congress has given DOT the authority to create the regulations that 
implement ISTEA and TEA-21. Second, it would not be practical for our 
fiscal constraint requirements to be different from DOT's rules; in 
order to be effectively implemented and enforced, they need to be 
exactly the same.
    Third, the conformity rule as a whole is based on DOT's 
transportation planning process as it is outlined in DOT's metropolitan 
planning regulations, including the rules for developing plans and 
TIPs. Although these planning regulations provide a foundation for the 
conformity rule, it is not necessary or appropriate for us to use the 
conformity rule to issue our own interpretation of ISTEA's planning 
requirements. Our reliance on DOT's fiscal constraint requirements is 
an illustration of this general principle. Therefore, EPA believes it 
is appropriate to defer to DOT's interpretation of the requirements for 
fiscal constraint as adopted in DOT's planning regulations.
    Finally, we do not share the petitioners' concern that DOT will 
unilaterally change its regulations. EPA and DOT are federal partners 
in transportation and air quality planning. There are mechanisms to 
ensure federal coordination, and we are involved in DOT's drafting of 
the metropolitan planning regulations. Further, petitioners will have 
an opportunity to comment directly on any changes DOT may propose to 
their regulation on fiscal constraint through DOT's regulatory process.

B. Horizon Years for Hot-Spot Analyses

    1. What Is the Issue?
    In issue 9B of the Petition for Reconsideration, the petitioners 
state that we should require hot-spot analyses to examine the 20-year 
timeframe of the transportation plan.
    The existing transportation conformity rule does not specify the 
horizon for hot-spot analyses.
2. What Are the Conformity Rule's Requirements About Hot Spots?
    The rule requires carbon monoxide (CO) and particulate matter (PM-
10) areas to demonstrate that transportation projects will not cause or 
contribute to new hot spots or increase the frequency or severity of 
existing hot spots. In some cases, CO nonattainment areas must 
demonstrate that they reduce localized CO violations. The conformity 
rule requires these demonstrations to be based on modeling procedures 
and assumptions that are decided through interagency consultation.
    At the present time, quantitative PM-10 hot-spot analysis is not 
required. According to Sec. 93.123(b)(4) of the conformity rule, 
quantitative PM-10 hot-spot analysis is not required until EPA releases 
modeling guidance on this subject. However, projects' impact on 
localized PM-10 violations must be qualitatively considered.
3. What Is EPA's Response?
    In most areas, hot-spot analyses are done for the year of project 
completion. Areas decide whether they should examine other analysis 
years in the future. For example, some areas analyze the last year of 
the transportation plan (i.e., the twentieth year) or the tenth year 
after the project's date of completion.
    We do not believe it is necessary to specify that hot-spot analyses 
must model the twentieth year of the transportation plan in all cases. 
We allow a considerable amount of flexibility for areas to decide 
through the interagency consultation process how to demonstrate that 
hot spots are not caused or worsened in any area. There is even an 
opportunity for qualitative demonstrations.
    Because current emissions models show that CO emissions per vehicle 
are decreasing over time, it may be most conservative to analyze a year 
in the nearer term, rather than a year that is 20 years distant. Thus, 
it would not be appropriate for us to mandate that all hot-spot 
analyses must examine the twentieth year. Instead, we believe the 
horizon year of the hot-spot analysis should be decided through 
interagency

[[Page 66834]]

consultation, as appropriate to the individual area, on a case-by-case 
basis.

C. Assumptions Regarding Regional Distribution of Emissions

1. What Is the Issue?
    As described in issue 12 of the Petition for Reconsideration, the 
petitioners believe that Metropolitan Planning Oganizations (MPOs) 
should be required to demonstrate that regional land use policies and 
the proposed transportation plan will achieve the same spatial 
distribution of motor vehicle emissions as was used in the state 
implementation plan (SIP) to demonstrate attainment.
    We believe that the petitioners are in effect requesting that we 
should always require SIPs to establish subarea budgets, and that we 
should then require MPOs and DOT to show conformity to these subarea 
budgets. The petitioners request that we eliminate Sec. 93.124(d) of 
the conformity rule, which states that when the SIP includes emissions 
estimates by subarea, these are not considered to be budgets for 
conformity purposes unless the SIP explicitly states that intent.
2. What Is EPA's Response?
    We believe that the conformity rule's provisions should be 
retained. The Clean Air Act does not require subarea budgets. We have 
always interpreted the Clean Air Act to allow for a single budget for a 
nonattainment area for a given criteria pollutant or precursor, 
although states have the option to disaggregate the budget at their 
discretion (see our General Preamble for the Implementation of Title I 
of the Clean Air Act Amendments of 1990, at 57 FR 13448, April 16, 
1992).
    If we were to compel states to include subarea budgets in their 
SIPs, it is not clear what level of disaggregation would be 
appropriate. Creating budgets for each grid cell used in the 
photochemical modeling would be impractical, because each grid cell is 
small. Grid cells can be as small as one square kilometer. The 
transportation plan and TIP would have to be apportioned into subareas, 
and the transportation model would have to be altered so it could 
produce estimates for each separate subarea.
    We believe the costs of this requirement would generally outweigh 
the benefits. Where spatial distribution of emissions is very important 
to the attainment of the standards, states should specify subarea 
budgets in their SIPs as necessary to demonstrate attainment, according 
to the degree of disaggregation they deem appropriate. Where such 
subarea budgets are identified, all plans and TIPs would have to show 
conformity to each subarea budget. On the other hand, if subarea 
budgets are not necessary for attainment demonstration purposes, EPA 
believes that the conformity rule need not require them.

D. Credit for Delayed TCMs

1. What Is the Issue?
    As described in issue 15 of the Petition for Reconsideration, the 
petitioners believe that where a transportation control measure (TCM) 
has been delayed beyond the scheduled implementation date(s) in the 
SIP, an area's conformity determination should not be allowed to take 
emissions reduction credit for the TCM until after the TCM has actually 
been brought into service. This would be more stringent than the 
current conformity rule, which prohibits emission reduction credit only 
until ``such time as implementation has been assured'' (see 
Sec. 93.122(a)(2)).
2. What Is EPA's Response?
    We believe that in general, it is appropriate for areas to take 
credit for measures even before they have been implemented, provided 
that there are good reasons to believe that the measures will be 
implemented on the anticipated schedule. The main purpose of conformity 
is to prospectively analyze the impacts of future transportation 
activities, whether their impacts are positive or negative.
    The conformity rule has a number of provisions to ensure that areas 
analyze only those projects that are reasonably expected to occur. For 
example, we do not allow areas to take credit for TCMs on their 
original implementation schedule when they have already been delayed. 
We do not allow areas to take credit for regulatory measures until they 
have been adopted or committed to in a SIP.
    However, the petitioners' suggestion would not allow for any 
prospective credit for any TCM that had been delayed at any point in 
its life. Although the petitioners' suggestion could perhaps provide an 
incentive to avoid TCM delays, we believe that the requirements for 
timely implementation of TCMs already serve that purpose.
    We believe that the petitioners' suggestion would be punitive in 
nature and is not necessary to fulfill the requirements of Clean Air 
Act section 176(c). We do not see any reason to forbid areas to take 
credit for a TCM if all obstacles have been overcome and its 
implementation is assured, even if the project is not on its original 
implementation schedule.
    Once implementation has been assured, emissions analyses could take 
credit for the TCM in the analysis years during which the TCM would 
actually be in service (under the revised schedule). Obviously, an area 
would not be allowed to take credit for the TCM according to its 
original schedule, unless the area could demonstrate how it was making 
up for the past delays.
    The petitioners do point out that we have not defined what we mean 
by the phrase, ``such time as implementation has been assured.'' 
Although the interpretation of this phrase will vary from case to case, 
assurance of implementation would require at least the following: (a) 
Past obstacles to implementation of the TCM have been overcome; (b) 
state and local agencies are giving maximum priority to approval or 
funding of TCMs over other projects within their control; (c) funding 
for the TCM is identified and reasonably expected to be available; and 
(d) the legal or regulatory authority necessary to implement the TCM 
has been secured or appropriate commitments are in place.
    Section 93.113 of the conformity rule requires that if TCMs in an 
approved SIP are behind schedule, the area must demonstrate that past 
obstacles to implementation of the TCM have been overcome and that the 
TCM is receiving maximum priority. This demonstration must be based on 
consultation among the federal, state, and local air and transportation 
agencies.
    The preamble to the 1993 conformity rule (58 FR 62197, November 24, 
1993) provides more explanation of these points, including guidance on 
what is considered ``maximum priority.''
    We take this opportunity to also address some other questions that 
have arisen about timely TCM implementation. First, what does it mean 
for a TCM or other measure in the SIP to be ``delayed beyond the 
scheduled date(s)'' We consider a measure ``delayed'' if the current 
schedule for its implementation (for example, as described in the TIP) 
indicates that the upcoming scheduled dates in the SIP will be missed.
    In other words, a measure can be considered delayed even before the 
implementation date is actually missed. If current projections indicate 
the project will miss scheduled implementation dates, it is considered 
delayed.
    In addition, we would like to clarify that once a TCM has been 
implemented, this implementation must continue permanently unless the 
approved SIP specifically stipulates that

[[Page 66835]]

implementation will cease at a specific time.

IV. How Would this Action Affect Conformity SIPs?

    Clean Air Act section 176(c)(4)(C) requires states to submit 
revisions to their SIPs in order to include the criteria and procedures 
for determining conformity.
    If we approved your area's conformity SIP and it includes a 
provision for a one-year grace period (Sec. 93.102(d)), that provision 
cannot be implemented. This has been the case ever since the November 
4, 1997, court decision, which found such provisions to be inconsistent 
with the Clean Air Act.
    Future conformity SIP submissions may not include Sec. 93.102(d). 
If your area has submitted a conformity SIP to us that contains this 
provision (and we have not yet approved the conformity SIP), we are not 
able to approve such a provision as part of the SIP.

V. 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 of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This proposal does not impose any new information collection 
requirements from EPA which require approval by OMB under the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3501 et seq. An Agency may not conduct 
or sponsor, and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.

C. Regulatory Flexibility Analysis

    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 
proposed rule will have on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
organizations and small government jurisdictions.
    EPA has determined that today's regulations will not have a 
significant impact on a substantial number of small entities. 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. The Regulatory Flexibility Act defines 
``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 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 promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Furthermore, this proposal simply formalizes 
what the court has already decided as a legal matter, and which is 
already being implemented in practice.
    This rule affects only those areas that are newly designated as 
nonattainment, and it simply applies conformity one year earlier than 
our previous rule had required. Therefore, this rule could require a 
limited number of areas to perform perhaps one additional 
transportation plan/TIP conformity determination each.
    A 1992 DOT survey of metropolitan planning organizations (MPOs) 
found that most MPOs spend less than $50,000 per transportation plan/
TIP conformity determination. The largest MPOs (serving a population 
over one million) spent up to $250,000. Thus, even if EPA were to 
designate 200 areas as nonattainment in one year and each one

[[Page 66836]]

incurred the maximum costs, the expenditures would not exceed $100 
million.
    Thus, today's rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

E. NTTAA

    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 standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

F. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it is not economically 
significant within the meaning of Executive Order 12866 and it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

G. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    The Clean Air Act requires conformity to apply in nonattainment and 
maintenance areas, and the U.S. Court of Appeals for the District of 
Columbia Circuit has determined that the Clean Air Act requires 
conformity to apply immediately upon nonattainment designation. As a 
result, this regulation is required by statute. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this rule.

H. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    The Clean Air Act requires conformity to apply in nonattainment and 
maintenance areas, and the U.S. Court of Appeals for the District of 
Columbia Circuit has determined that the Clean Air Act requires 
conformity to apply immediately upon nonattainment designation. As a 
result, this regulation is required by statute. Furthermore, today's 
rule would not significantly or uniquely affect the communities of 
Indian tribal governments. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this rule.

I. Executive Orders on Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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 
proposed 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 Management and Budget (OMB), in a separately 
identified section of the preamble to the rule, a federalism summary 
impact statement (FSIS). The FSIS must include a description of the 
extent of EPA's Prior consultation with State and local officials, a 
summary of the nature of their concerns and the Agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of State and local officials have been 
met. Also, when EPA transmits a draft final rule

[[Page 66837]]

with federalism implications to OMB for review pursuant to Executive 
Order 12866, EPA must include a certification form the Agency's 
Federalism Official stating that EPA has met the requirements of 
Executive Order 13132 in a meaningful and timely manner.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
The Clean Air Act requires conformity to apply in nonattainment and 
maintenance areas, and the U.S. Court of Appeals for the District of 
Columbia Circuit has determined that the Clean Air Act requires 
conformity to apply immediately upon nonattainment designation. As a 
result, this rule is codifying in regulation the statutory 
interpretation by the court that is currently in effect. Consequently, 
this rule itself will not have substantial impact on States. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

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: November 22, 1999.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 93 is proposed 
to be amended as follows:

PART 93--[AMENDED]

    1. The authority citation for part 93 continues to read as follows:

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


Sec. 93.102  [Amended]

    2. In Sec. 93.102, paragraph (d) is removed.

[FR Doc. 99-30903 Filed 11-29-99; 8:45 am]
BILLING CODE 6560-50-P