[Federal Register Volume 66, Number 194 (Friday, October 5, 2001)]
[Proposed Rules]
[Pages 50954-50961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25017]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[FRL-7075-6]
RIN 2060-AJ70


Transportation Conformity Rule Amendments: Minor Revision of 18-
Month Requirement for Initial SIP Submissions and Addition of Grace 
Period for Newly Designated Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing two minor revisions to the transportation 
conformity rule. Transportation conformity is required by the Clean Air 
Act to ensure that federally supported highway and transit project 
activities are consistent with (``conform to'') the purpose of a state 
air quality implementation plan (SIP). Conformity to the purpose of the 
SIP means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the national ambient air quality standards. EPA's transportation 
conformity rule establishes the criteria and procedures for determining 
whether transportation activities conform to the state air quality 
plan.
    Today's proposal would implement a recent Clean Air Act amendment 
that provides a one-year grace period before conformity is required in 
areas that are designated nonattainment for a given air quality 
standard for the first time. This Clean Air Act amendment was enacted 
on October 27, 2000. Today's proposal formally adds the one-year 
conformity grace period to the conformity rule, but the grace period 
can already be used by

[[Page 50955]]

newly designated nonattainment areas as a matter of law.
    This proposal would also revise the timing for determining 
conformity after a State submits a control strategy implementation plan 
or maintenance plan for the first time (an ``initial'' SIP submission). 
The current conformity rule requires a conformity determination within 
18 months of the submission of an initial SIP. The proposed rule would 
change this requirement, so that conformity would be required within 18 
months of EPA's affirmative finding that the SIP's motor vehicle 
emissions budgets are adequate. EPA is proposing this revision as a 
result of the March 2, 1999, ruling by the U.S. Court of Appeals for 
the District of Columbia Circuit Court (Environmental Defense Fund v. 
EPA, et al., 167 F. 3d 641, D.C. Cir. 1999). The court stated that 
motor vehicle emissions budgets from an initial SIP submission can only 
be used for conformity once EPA affirmatively finds the budgets 
adequate. Under this approach, state and local agencies have sufficient 
time to redetermine conformity where initial SIPs are submitted and 
after EPA finds such budgets adequate. The preamble to the proposal 
also clarifies what is considered an initial SIP submission under the 
conformity rule.

DATES: Comments on this action must be received by November 5, 2001.

ADDRESSES: Comments should be submitted (in duplicate, if possible) to: 
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Attention: Docket No. A-2001-12, 1200 Pennsylvania 
Avenue, Mail Code 6102, Washington, DC 20460.
    Materials relevant to this rulemaking are in Public Docket A-2001-
12 located at the U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460 in Room M-1500, Waterside Mall (ground 
floor). Ph: 202-260-7548. The docket is open and supporting materials 
are available for review between 8 a.m. and 5:30 p.m. on all federal 
government workdays. You may have to pay a reasonable fee for copying 
docket materials.
    This proposal is available electronically from our web site. See 
SUPPLEMENTARY INFORMATION for information on accessing and downloading 
files.

FOR FURTHER INFORMATION CONTACT: Denise Kearns, State Measures and 
Conformity Group, Transportation and Regional Programs Division, U.S. 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105, [email protected], (734) 214-4240; or Meg Patulski, State 
Measures and Conformity Group, Transportation and Regional Programs 
Division, U.S. Environmental Protection Agency, 2000 Traverwood Drive, 
Ann Arbor, MI 48105; [email protected]; (734) 214-4842.

SUPPLEMENTARY INFORMATION: You can access and download today's proposal 
on your computer by going to the following address on EPA's Web site:

Internet Web Site

    http://www.epa.gov/otaq/traq (Once at the site, click on 
``conformity.'')

Regulated Entities

    Entities potentially regulated by the transportation conformity 
rule are those 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 affected by this action include:

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                Category                  Examples of regulated entities
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Local government.......................  Local transportation and air
                                          quality agencies, including
                                          metropolitan planning
                                          organizations.
State government.......................  State transportation and air
                                          quality agencies.
Federal government.....................  Department of Transportation
                                          (Federal Highway
                                          Administration (FHWA) and
                                          Federal Transit Administration
                                          (FTA)).
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
proposal. This table lists the types of entities that EPA is 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 40 CFR 93.102 of 
the transportation conformity rule. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
    The contents of this preamble are listed in the following outline:

I. What Is Transportation Conformity?
II. One-year Grace Period for Newly Designated Nonattainment Areas
    A. Background
    B. What Are We Proposing?
    C. How Soon Does Conformity Apply in a Newly Designated 
Nonattainment Area?
    D. Why Is a One-year Grace Period Beneficial for Newly 
Designated Nonattainment Areas?
III. Conformity Determinations for Initial SIP Submissions
    A. Background
    B. What Are We Proposing?
    C. Why Are We Proposing This Change?
    D. Examples: When Would an 18-Month Clock Start for an Initial 
SIP Submission?
IV. How Would Today's Proposal Affect Conformity SIPs?
V. Administrative Requirements
    A. Executive Order 12866
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis
    D. Unfunded Mandates
    E. National Technology Transfer and Advancement Act
    F. Executive Order 13045
    G. Executive Order 13084
    H. Executive Orders on Federalism
    I. Executive Order 13211

I. What Is Transportation Conformity?

    Transportation conformity is required under section 176(c) of the 
Clean Air Act (42 U.S.C. 7506(c)) to ensure that federally supported 
highway and transit project activities are consistent with (``conform 
to'') the purpose of a state air quality implementation plan (SIP). 
Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the national ambient air 
quality standards. EPA's transportation conformity rule (40 CFR parts 
51 and 93) establishes the criteria and procedures for determining 
whether transportation activities conform to the state air quality 
plan.
    EPA first published the transportation conformity rule on November 
24, 1993 (58 FR 62188). Minor revisions were initially made to the rule 
in 1995 (60 FR 40098, August 7, 1995 and 60 FR 57179, November 14, 
1995), and more recently in the spring of 2000 (65 FR 18911, April 10, 
2000).
    On August 15, 1997, a comprehensive set of amendments was published 
that clarified and streamlined language from the 1993 transportation 
conformity rule (62 FR 43780). However, several provisions from the 
1997 rulemaking were affected by the U.S. Court of Appeals for the 
District of Columbia Circuit in a decision made on March 2, 1999 
(Environmental Defense Fund v. EPA, et al., 167 F. 3d 641, D.C. Cir. 
1999). Today's proposal addresses the impact of the March 2, 1999, 
court decision on one provision of the conformity rule. In addition to 
today's action, we are preparing a future proposal that will further 
amend the 1997 conformity rule based on the remaining issues addressed 
by the court's March 2, 1999, decision.
    In the interim, areas where conformity applies are currently 
operating under

[[Page 50956]]

administrative guidance that EPA and the U.S. Department of 
Transportation (DOT) issued to address the provisions directly affected 
by the court decision [May 14, 1999, Memorandum from Gay MacGregor, 
then-Director of the Regional and State Programs Division of EPA's 
Office of Transportation and Air Quality, to Regional Air Division 
Directors, ``Conformity Guidance on Implementation of March 2, 1999, 
Conformity Court Decision;'' and June 18, 1999, Memorandum from Kenneth 
R. Wykle, then-Administrator, Federal Highway Administration (FHWA), 
and Gordon J. Linton, then-Administrator, Federal Transit 
Administration (FTA), to FHWA Division Administrators, Federal Lands 
Highway Division Engineers, and FTA Regional Administrators, 
``Additional Supplemental Guidance for the Implementation of the 
Circuit Court Decision Affecting Transportation Conformity']. See EPA's 
web site listed in the SUPPLEMENTARY INFORMATION section to download an 
electronic version of any of these memoranda.

II. One-year Grace Period for Newly Designated Nonattainment Areas

A. Background

    Newly designated nonattainment areas are any geographic areas or 
portions of such areas which EPA designates as nonattainment for the 
first time for a given air quality standard. EPA designates an area as 
``nonattainment'' when its air quality violates the national ambient 
air quality standards (NAAQS) set by EPA to protect public health. EPA 
designates areas nonattainment through the Federal Register. 
Nonattainment areas that are reclassified (or ``bumped up'') to a 
higher classification of nonattainment for a given standard are not 
considered newly designated nonattainment areas. An area that is 
redesignated from nonattainment to attainment (i.e., becomes a 
maintenance area) is not considered a newly designated nonattainment 
area. Finally, a maintenance area that is redesignated from attainment 
to nonattainment is also not considered a newly designated 
nonattainment area for the purposes of this proposal.
    Areas can be designated nonattainment for more than one air quality 
standard. For example, if an area is currently designated as a carbon 
monoxide nonattainment area but now has monitoring data which show that 
it is violating an ozone standard, the area would be considered a newly 
designated nonattainment area for ozone once EPA's final ozone 
nonattainment designation is effective.
    In the November 1995 conformity rule, EPA gave newly designated 
nonattainment areas a one-year grace period before conformity applied 
for a given standard (Sec. 93.102(d) of the November 14, 1995 final 
rule, 60 FR 57179). However, this provision was challenged by the 
Sierra Club, and the U.S. Court of Appeals for the District of Columbia 
Circuit overturned the grace period on November 4, 1997 (Sierra Club v. 
EPA, et al., 129 F .3d 137, D.C. Cir. 1997). The court concluded that 
the Clean Air Act in effect at that time did not provide such a grace 
period. In compliance with the court's decision, EPA deleted 
Sec. 93.102(d) in a final rule published on April 10, 2000 (65 FR 
18911).
    However, on October 27, 2000, an amendment to the Clean Air Act was 
enacted providing for the one-year grace period for conformity in newly 
designated nonattainment areas, effective immediately [42 U.S.C. 
7506(c)(6)].

B. What Are We Proposing?

    As a result of Congress' action, EPA is proposing to add the one-
year conformity grace period for newly designated nonattainment areas 
for a given air quality standard to the transportation conformity rule. 
We are proposing this change to make the transportation conformity rule 
consistent with the amended Clean Air Act.

C. How Soon Does Conformity Apply in a Newly Designated Nonattainment 
Area?

    Under the current Clean Air Act as amended in October 2000, 
conformity applies one year after EPA first designates an area or 
portion of an area nonattainment for a given air quality standard. More 
specifically, conformity applies one year after the effective date of 
EPA's final nonattainment designation, as published in the Federal 
Register.
    Therefore, one year after the effective date of EPA's designation 
of an area to nonattainment for a given standard, a conforming 
transportation plan and transportation improvement program (TIP) must 
be in place in order to fund or approve transportation projects, or the 
area will be in a conformity lapse.
    In the absence of a conforming transportation plan and TIP, no new 
project-level conformity determinations may be made. According to 
existing guidance, exempt projects listed in Sec. 93.126, projects 
listed in Sec. 93.127, and projects that have received final funding 
commitments or approvals from the FHWA or FTA can proceed toward 
implementation. Transportation control measures (TCMs) that EPA has 
approved into a SIP can also proceed during a conformity lapse. TCMs 
are projects which support air quality goals by reducing travel or 
affecting congestion. A new conformity determination for the 
transportation plan and TIP based on all pollutants that apply is 
necessary to end the conformity lapse.
    The transportation plan and TIP must conform with respect to all 
pollutants for which the area is designated nonattainment. 
Transportation conformity applies in areas that are designated 
nonattainment for an ozone standard, carbon monoxide, particulate 
matter, and nitrogen dioxide criteria pollutants. For example, a carbon 
monoxide nonattainment area which is subsequently designated 
nonattainment for ozone has a one-year grace period before conformity 
determinations must be made for ozone; conformity would continue to 
apply in the interim for CO. By the end of the one-year grace period, a 
transportation plan and TIP conformity determination must be in place 
for all pollutants in a given area, in this case, for carbon monoxide 
and ozone.

D. Why Is a One-year Grace Period Beneficial for Newly Designated 
Nonattainment Areas?

    Although there are opportunities for newly designated areas to 
prepare for the conformity process prior to the effective date of a 
nonattainment designation, areas with little or no conformity 
experience will find a one-year grace period beneficial. The grace 
period will provide these areas with additional time to evaluate their 
long range transportation plans, TIPs, and projects, and to complete 
the conformity process.

III. Conformity Determinations for Initial SIP Submissions

A. Background

    Under Sec. 93.104(e)(2) of the current conformity rule, a new 
conformity determination for the transportation plan and TIP is 
required no later than 18 months after the date that a State submits 
for the first time a SIP (i.e., an initial SIP submission) that 
establishes motor vehicle emissions budgets. This provision was created 
in the November 14, 1995, final rule (60 FR 57179) and August 15, 1997, 
final rule (62 FR 43780) amending the conformity requirement. See these 
final rules and the proposals (60 FR 44790, August 29,

[[Page 50957]]

1995, and 61 FR 36111, July 9, 1996) for more background information.
    An initial SIP submission is a control strategy SIP (i.e., a 
reasonable further progress or attainment demonstration SIP) or a 
maintenance plan that is submitted for the first time to address a 
specific Clean Air Act requirement and includes budgets that can be 
used for conformity purposes. A revision to an existing approved SIP 
for a certain Clean Air Act requirement is not considered an initial 
SIP submission and therefore would not start a new 18-month clock under 
Sec. 93.104(e)(2).
    Under the current conformity rule, if conformity is not determined 
within 18 months of an initial SIP submission, the conformity status of 
the transportation plan and TIP lapse. See Section II.C. of this 
proposal for more information of which projects can proceed during a 
lapse. A new conformity determination based on the initial SIP's 
budgets that EPA has found adequate and any other adequate budgets is 
necessary to avoid or end a conformity lapse.
    There may be limited cases where an initial SIP is submitted, EPA 
finds its budgets adequate, but then the state submits a revision to 
the initial SIP with budgets that EPA also finds adequate. In this 
case, if conformity has not yet been determined to the budgets in the 
first submission, the conformity determination to satisfy the 18-month 
clock must be demonstrated to the budgets in the revised SIP. The 
budgets in the previous SIP submission would no longer apply for 
conformity purposes, since EPA has found the new budgets adequate.
    As stated in the preamble to the August 29, 1995 proposal (60 FR 
44792), ``[t]he 18-month time period for determining conformity would 
not be affected by subsequent changes to the submitted control strategy 
SIP. For example, if within the 18-month period the initial submission 
is revised before conformity has been determined, the 18-month clock 
would not be restarted. However, when conformity is eventually 
determined, the relevant motor vehicle emissions budgets must be used. 
If conformity to the initial submission has been demonstrated and that 
submission is subsequently revised, no 18-month clock would be started, 
until, as required in (Sec. 93.104(e)(3)), the SIP is approved by 
EPA.''

B. What Are We Proposing?

    EPA is proposing a minor revision to Sec. 93.104(e)(2) to ensure 
that transportation planners have sufficient time to consider new air 
quality information in the transportation planning process, so that the 
goals of air quality plans are achieved. EPA proposes to change the 
trigger point or starting point of the requirement to determine 
conformity from within 18 months of an initial SIP submission to within 
18 months of the effective date of the Federal Register notice 
announcing EPA's finding that the budgets in an initial SIP submission 
are adequate. The net effect is that areas will have the full 18 months 
to satisfy the conformity requirement for initial submissions. See 
Section III.D. for examples of how today's proposal would be 
implemented.
    Today's proposal does not change the current requirement to 
redetermine conformity for each initial SIP that is submitted for a 
given pollutant, standard, and Clean Air Act requirement. For example, 
an 18-month conformity clock would still be started for the first 
attainment demonstration for a given pollutant and standard that an 
area submits and EPA finds adequate. Other conformity determinations 
would be triggered by the first rate-of-progress SIP or maintenance 
plan that is submitted and found adequate for each standard that 
applies. Today's proposal changes only the date on which these 18-month 
clocks begin to run. As previously discussed, if an area revises its 
initial SIP submission and EPA finds the revised budgets adequate 
before Sec. 93.104(e)(2) is satisfied, then the conformity 
determination would be based on the budgets in the most recent 
submission found to be adequate.
    Finally, today's proposal does not change the current rule's 
requirement that an area need only satisfy the 18-month requirement to 
determine conformity to an initial SIP submission once for a given 
Clean Air Act requirement. Once Sec. 93.104(e)(2) is satisfied, EPA 
believes that it does not have to be satisfied again for subsequent 
submissions of the same type prior to EPA SIP approval. EPA required 
the 18-month conformity determination clock to introduce new air 
quality data into the conformity process quickly. Once this has been 
done, it would be unreasonable to require further determinations where 
SIP submissions are revised. A new 18-month clock also starts when EPA 
approves each control strategy SIP revision and maintenance plan which 
establishes or revises a motor vehicle emissions budget, according to 
Sec. 93.104(e)(3) of the transportation conformity rule. EPA believes 
that this requirement, along with other transportation planning and 
conformity requirements, provides a sufficient opportunity for 
periodically introducing new air quality information into the 
conformity process.

C. Why Are We Proposing This Change?

    The proposal would ensure that all areas have the full 18 months 
from the time motor vehicle emissions budgets become adequate to make 
transportation plan and TIP conformity determinations to initial SIP 
submissions, which is not the case under the current conformity rule.
    In the 1997 conformity rule (40 CFR 93.118(e)(1)), areas could use 
the motor vehicle emissions budgets from an initially submitted SIP for 
conformity 45 days after we received the SIP, unless EPA declared the 
budgets inadequate for conformity purposes. On March 2, 1999, the U.S. 
Court of Appeals for the D.C. Circuit issued a decision on a challenge 
to the 1997 transportation conformity rule (Environmental Defense Fund 
v. EPA, et al., 167 F. 3d 641, D.C. Cir. 1999). The court ruled that 
SIP budgets cannot be used for conformity until EPA affirmatively finds 
those budgets adequate.
    In response to the court's decision, EPA issued guidance regarding 
the process that is used to review the adequacy of budgets for 
conformity purposes. The process described in this guidance has been in 
effect since shortly after the court's March 2, 1999, ruling (May 14, 
1999, EPA memorandum from Gay MacGregor, then-Director of the Regional 
and State Programs Division in the Office of Transportation and Air 
Quality, to Regional Air Division Directors, ``Conformity Guidance on 
Implementation of March 2, 1999, Court Decision'').
    Today's action would align the conformity rule with EPA's existing 
guidance and with the March 2, 1999, conformity court decision. 
Requiring conformity following the effective date of EPA's adequacy 
finding on the budgets, instead of the date that an initial SIP is 
submitted, ensures that new information is incorporated in a timely and 
reasonable manner.
    As described in the May 14, 1999, memorandum, EPA's current 
adequacy process starts when a new SIP is submitted and ends with the 
effective date of our adequacy finding, which we formally announce 
through a Federal Register notice. EPA tries to complete an adequacy 
review in approximately three months, although in some cases additional 
time is needed.
    Areas cannot begin the process of determining conformity using the 
submitted budgets with certainty until EPA has determined that the 
budgets are adequate. Under our current conformity rule and the court 
decision, a

[[Page 50958]]

conformity determination cannot be made until budgets are found 
adequate, and therefore, transportation agencies may not want to invest 
time and resources completing a regional emissions analysis and 
conformity determination prior to knowing which SIP budgets apply. As a 
result, under the current rule, areas have a maximum of 15 months to 
determine conformity following an initial SIP submission (i.e., the 18-
month conformity clock for initial submissions minus the three months 
minimally required for EPA to determine adequacy). Where adequacy 
review is complex and subsequently delayed, areas may have even less 
time to determine conformity under the current rule. As a practical 
matter, if budgets cannot be used until EPA completes its adequacy 
review and the finding becomes effective, the 18-month clock for 
conformity should not start until that time. EPA believes it is more 
equitable for areas to have the full 18 months to complete conformity 
determinations.
    There can also be situations where EPA finds submitted budgets 
adequate, but later finds them inadequate because new information has 
become available that affects the adequacy of the budgets. In these 
situations, conformity implementers may try in good faith to determine 
conformity to adequate budgets in an initial SIP submission within 18 
months, only to have the budgets found inadequate before a conformity 
determination is made.
    To address the situations described above and based on our 
experience in implementing conformity to date, EPA continues to believe 
that areas should have the full 18 months to determine conformity. An 
18-month period provides areas with the time needed to assess new 
information contained in a SIP. We continue to encourage air quality 
and transportation planners to coordinate their processes so that new 
air quality plans can be used expeditiously in the transportation 
conformity and planning processes.
    Finally, today's proposal does not weaken the conformity rule 
provisions or the SIP process. For example, EPA considered whether 
starting the 18-month clock from adequacy (rather than from the state's 
submission of the SIP) would result in SIPs being submitted with 
inadequate budgets.
    EPA does not believe that this situation would be encouraged by 
today's proposal. There are many other considerations, aside from the 
conformity process, that are in place to encourage the development of 
SIPs that can be approved with adequate budgets. Due to the significant 
level of state and local government resources that are involved in 
developing a SIP that meets Clean Air Act requirements, it is unlikely 
that a state or area would choose to submit a SIP with inadequate 
budgets simply to avoid an 18-month conformity clock from starting for 
an initial SIP submission.

D. Examples: When Would an 18-Month Clock Start for an Initial SIP 
Submission?

    The following examples help illustrate what types of situations 
trigger or do not trigger the 18-month conformity requirement for 
initial SIP submissions. There could be other cases that are not 
described here but could be implemented under this proposal.
    How would this proposal affect areas where an 18-month clock is 
currently running? In areas where an 18-month clock for an initial 
submission has already started and has not yet been satisfied, this 
proposed change would alter those clocks. In these areas, EPA proposes 
that a new 18-month clock would be started on the effective date of 
EPA's positive adequacy finding for budgets contained in an initial SIP 
submission. If EPA has already found budgets in the initial SIP 
submission adequate and conformity has not been determined to these 
budgets, the new 18-month clock would begin on the effective date of 
EPA's affirmative adequacy finding. An 18-month clock would not yet be 
started if EPA is still reviewing budgets for adequacy, or if EPA 
subsequently finds submitted budgets inadequate.
    For example, suppose an area submitted its first attainment 
demonstration 15 months ago. EPA found the budgets in the attainment 
demonstration adequate, and our finding was effective five months after 
submission. A conformity determination on the transportation plan and 
TIP has yet to be made. Under our current rule, the area would have 
only three more months to do conformity (i.e., the current rule 
requires conformity to be determined 18 months after submission, and it 
has been 15 months since the SIP was submitted). In contrast, under 
today's proposal, the area would still have eight months to determine 
conformity to the budgets in the initial SIP (i.e., the clock would 
start on the effective date of EPA's adequacy finding which happened 10 
months ago).
    Is a new conformity determination triggered if EPA finds the 
budgets inadequate during its adequacy review? No, if EPA finds budgets 
inadequate, the 18-month clock for a conformity determination would not 
be triggered. Inadequate budgets cannot be used for conformity 
determinations, and the requirement to conduct a determination is only 
triggered by budgets that can be used for conformity. An 18-month 
conformity clock would be triggered in the future if a new SIP is 
submitted for the same Clean Air Act requirement and EPA finds its 
budgets adequate. This new SIP would be considered an initial 
submission since the prior SIP's budgets were found inadequate.
    What happens if EPA finds the budgets adequate but later finds them 
inadequate? There have been limited cases where EPA finds the budgets 
adequate during our initial adequacy review, but EPA later reverses its 
decision because of new information that indicates that the budgets are 
in fact inadequate.
    In such a case under the current rule and under this proposal, if a 
conformity determination had been approved by the metropolitan planning 
organization (MPO) and the Department of Transportation (DOT) before 
the effective date of the Federal Register notice announcing EPA's 
subsequent finding that the budgets are inadequate, the requirement to 
determine conformity within 18 months of the initial attainment 
demonstration would be satisfied. The conformity determination for the 
transportation plan and TIP would continue to remain valid, pursuant to 
Sec. 93.118(e)(3) of the current conformity rule and this proposal. In 
this particular case, a new 18-month conformity clock for an initial 
submission would not start if the state subsequently makes a new 
initial SIP submission containing budgets that EPA also finds adequate. 
A new 18-month clock would not start in this situation because the 
conformity requirement for initial submissions only needs to be 
satisfied once for a specific Clean Air Act requirement.
    However, if the MPO and DOT had not determined conformity to the 
submitted budgets before EPA found the budgets inadequate, the 
requirement to determine conformity within 18 months of an initial SIP 
submission under Sec. 93.104(e)(2) would not be satisfied. In this 
situation, EPA is proposing that an 18-month clock would start when the 
state makes a new initial SIP submission and EPA finds its budgets 
adequate for conformity purposes. Transportation agencies would have a 
new 18-month time period to determine conformity once the new budgets 
are in place.
    In certain ozone areas, is a new 18-month conformity clock started 
when EPA finds budgets adequate that are submitted to reflect 
additional control measures or MOBILE6 estimates of Tier 2 vehicle and 
fuel standards? No, EPA

[[Page 50959]]

has already stated that these SIP revisions are not initial SIP 
submissions that start 18-month clocks under Sec. 93.104(e)(2).\1\ EPA 
addressed this question in the July 28, 2000, supplemental notice of 
proposed rulemaking (65 FR 46386) for certain ozone nonattainment 
areas.
---------------------------------------------------------------------------

    \1\ In this answer, EPA is assuming that the original attainment 
budgets that included interim MOBILE5-based Tier 2 estimates were 
adequate and approved as part of the attainment demonstration. If 
the original MOBILE5-based budgets were found inadequate prior to 
being used in a conformity determination, then the MOBILE6 budgets 
would be considered an initial submission that starts an 18-month 
clock under Sec. 93.104(e)(2).
---------------------------------------------------------------------------

IV. How Would Today's Proposal Affect Conformity SIPs?

    Clean Air Act section 176(c)(4)(C) requires states to submit 
revisions to their SIPs to reflect the criteria and procedures for 
determining conformity.
    Section 51.390(b) of the conformity rule specifies that after EPA 
approves a conformity SIP revision, the federal conformity rule no 
longer governs conformity determinations (for the parts of the rule 
that are covered by the approved conformity SIP). In some areas, EPA 
has already approved conformity SIPs which include Sec. 93.104(e)(2) 
from the 1997 transportation conformity rule. In these areas, the final 
rule amendment that changes this requirement as described in today's 
proposal will be effective only when this amendment is included in a 
conformity SIP revision and EPA approves that SIP revision. EPA will 
work with states to approve such revisions as expeditiously as possible 
through flexible administrative techniques such as parallel processing 
and direct final rulemaking.
    In contrast, the one-year conformity grace period applies as a 
statutory matter for all newly designated nonattainment areas, 
including areas that have EPA-approved conformity SIPs, since this 
grace period is already required as a matter of law.

V. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines significant ``regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or otherwise adversely affect in a material way the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or state, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposal 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 
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 proposed rule will not have a 
significant impact on a substantial number of small entities. This 
regulation directly 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 a 
``small governmental jurisdiction'' as the government of a city, 
county, town, school district or special district with a population of 
less than 50,000.
    Therefore, as required under section 605 of the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this proposed 
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 proposed rule does not contain a 
Federal mandate that may result in

[[Page 50960]]

expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
These rule amendments simplify the conformity rule and make it more 
practicable to implement and are being promulgated to formalize what 
the court and Congress have already decided as a legal matter. They do 
not impose any additional burdens. Thus, today's proposed rule is not 
subject to the requirements of sections 202 and 205 of the UMRA and EPA 
has not prepared a statement with respect to budgetary impacts.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus 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 rulemaking does not involve technical standards. Therefore, 
the use of voluntary consensus standards does not apply to this 
proposed rule.

F. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposal is not subject to Executive Order 13045 because it is 
not economically significant within the meaning of Executive Order 
12866 and does not require the consideration of relative environmental 
health or safety risks.

G. Executive Order 13084

    On January 1, 2001, EO13084 was superseded by EO13175. However, 
this proposed rule was developed during the period when EO13084 was 
still in force, and so tribal considerations were addressed under 
EO13084. Development of the final rule will address tribal 
considerations under EO13175. 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 today's proposed rule does not significantly or 
uniquely affect the communities of Indian tribal governments. The 
proposed rule does not impose any requirements on tribal governments. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this proposed rule.

H. Executive Orders on Federalism

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999), 
revokes and replaces Executive Orders 12612 (Federalism) and 12875 
(Enhancing the Intergovernmental Partnership). Executive Order 13132 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, EPA may 
not issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the regulation. EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's Prior consultation with State and local officials, 
a summary of the nature of their concerns and the Agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of State and local officials have been 
met. Also, when EPA transmits a draft rule with federalism implications 
to OMB for review pursuant to Executive Order 12866, EPA must include a 
certification from the Agency's Federalism Official stating that EPA 
has met the requirements of Executive Order 13132 in a meaningful and 
timely manner.
    This proposed rule, which amends a regulation that is required by 
statute, will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. The Clean Air Act 
requires conformity to apply in nonattainment and maintenance areas, 
and the U.S. Court of Appeals for the District of Columbia Circuit 
directed EPA to find the motor vehicle emissions budgets contained in a 
SIP affirmatively adequate before the budgets can be used in conformity 
determinations. To effectively implement the court's directive on this 
matter, we believe it is necessary to modify the timing of when one of 
our existing frequency requirements for conformity is required. The 
rule also

[[Page 50961]]

would provide newly designated nonattainment areas with a one-year 
grace period before conformity becomes applicable, as required by a 
recent amendment to the Clean Air Act.
    In summary, this proposed rule is required by statute and the 
court's interpretation of the statute, and by itself will not have 
substantial impact on States. Thus, the requirements of section 6 of 
the Executive Order do not apply to this proposed rule.

I. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Action 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355(May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

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: September 28, 2001.
Christine Todd Whitman,
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.

    2. Section 93.102 is amended by adding paragraph (d) to read as 
follows:


Sec. 93.102  Applicability.

* * * * *
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas which have been designated attainment or not designated for 
any standard for ozone, CO, PM10 or NO2 since 
1990 and are subsequently redesignated to nonattainment or designated 
nonattainment for any standard for any of these pollutants, the 
provisions of this subpart shall not apply for 12 months following the 
effective date of final designation to nonattainment for each standard 
for such pollutant.
    3. Sec. 93.104 is amended by revising paragraph (e)(2) to read as 
follows:


Sec. 93.104  Frequency of conformity determinations.

* * * * *
    (e) * * *
    (2) The effective date of EPA's finding that motor vehicle 
emissions budgets from an initially submitted control strategy 
implementation plan or maintenance plan are adequate pursuant to 
Sec. 93.118 and can be used for transportation conformity purposes;
* * * * *
[FR Doc. 01-25017 Filed 10-4-01; 8:45 am]
BILLING CODE 6560-50-P