[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
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Local government.......................... Local transportation and air
quality agencies.
State government.......................... State transportation and air
quality agencies.
Federal government........................ Department of Transportation
(Federal Highway
Administration and Federal
Transit Administration).
------------------------------------------------------------------------
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]
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