[Federal Register Volume 67, Number 151 (Tuesday, August 6, 2002)]
[Rules and Regulations]
[Pages 50808-50817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19797]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[FRL-7256-3]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is promulgating 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.
    First, today's final rule will implement a 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. Although the grace period is already available to 
newly designated nonattainment areas as a matter of law, EPA is today 
incorporating the one-year conformity grace period into the conformity 
rule.
    Second, today's final rule will change the point by which a 
conformity determination must be made following a State's submission of 
a control strategy implementation plan or maintenance plan for the 
first time (an ``initial'' SIP submission). Today's rule requires 
conformity to be determined within 18 months of EPA's affirmative 
finding that the SIP's motor vehicle emissions budgets are adequate. 
Prior to today's action, the conformity rule required a new conformity 
determination within 18 months of the submission of an initial SIP.
    This change to the conformity rule better aligns when the 18-month 
requirement for conformity to initial SIP submissions is implemented, 
so that state and local agencies have sufficient time to redetermine 
conformity when initial SIPs are submitted and after EPA finds the SIP 
budgets adequate.

EFFECTIVE DATE: This final rule is effective on September 5, 2002.

ADDRESSES: 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 final rule is available electronically from EPA's Web site. 
See SUPPLEMENTARY INFORMATION for information on accessing and 
downloading files.

FOR FURTHER INFORMATION CONTACT: Angela Spickard, 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) 214-4283.

SUPPLEMENTARY INFORMATION: You can access and download today's final 
rule on your computer by going to the following address on EPA's 
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 that 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:

------------------------------------------------------------------------
           Category                  Examples of regulated entities
------------------------------------------------------------------------
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))
                                and EPA.
------------------------------------------------------------------------

    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 of which EPA is aware that 
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. Background
II. One-year Conformity Grace Period for Newly Designated 
Nonattainment Areas
III. Conformity Determinations for Initial SIP Submissions
IV. What Comments That Addressed Topics Other Than Those Covered in 
This Rulemaking Did We Receive?
V. How Does Today's Final Rule Affect Conformity SIPs?
VI. Administrative Requirements

I. Background

    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 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), and made subsequent minor revisions to the rule 
in 1995 (60

[[Page 50809]]

FR 40098, August 7, 1995, and 60 FR 57179, November 14, 1995). On 
August 15, 1997, however, EPA published a comprehensive set of 
amendments that clarified and streamlined language from the 1993 
transportation conformity rule and 1995 amendments (62 FR 43780). Since 
the publication of the 1997 rule, we made one additional minor revision 
to the conformity rule in 2000 (65 FR 18911, April 10, 2000).
    As described in the October 5, 2001, proposal to this final rule 
(66 FR 50954), EPA's 1995 conformity rule provided a one-year 
conformity grace period to areas that were designated nonattainment for 
a given air quality standard for the first time (Sec. 93.102(d) of the 
November 14, 1995, final rule; 60 FR 57179). However, this provision 
was challenged by the Sierra Club under the Clean Air Act as amended in 
1990, and the U.S. Court of Appeals for the District of Columbia 
Circuit overturned the grace period on statutory grounds on November 4, 
1997 (Sierra Club v. EPA, et al., 129 F. 3d 137, D.C. Cir. 1997). As a 
result of the court's decision, the one-year conformity grace period 
was no longer available to areas and EPA removed it from the conformity 
rule in 2000 (65 FR 18911). Subsequently, Congress amended the Clean 
Air Act on October 27, 2000, to reinstate the grace period as a matter 
of law. Today's final rule amends the conformity regulation by 
reinstating the grace period provision to be consistent with the 
October 2000 Clean Air Act amendment, and therefore will provide newly 
designated nonattainment areas with a one-year grace period before the 
conformity regulation applies.
    Today's action also amends the conformity rule to respond, in part, 
to the impact of a decision made on March 2, 1999, by the U.S. Court of 
Appeals for the District of Columbia Circuit that affected several 
provisions of the 1997 rulemaking (Environmental Defense Fund v. EPA, 
et al., 167 F. 3d 641, D.C. Cir. 1999). Specifically, today's final 
rule addresses the indirect impact of this court decision on one 
provision of the conformity rule (Sec. 93.104(e)), the provision that 
requires conformity to be redetermined within 18 months of an initial 
SIP submission. In addition to today's minor rule revision, we are 
currently preparing a future rulemaking to respond to the remaining 
issues addressed by the March 1999 court decision that will be 
separately proposed in the Federal Register.
    In the interim, areas where conformity applies are currently 
operating under administrative guidance that EPA and the U.S. 
Department of Transportation (DOT) issued to address the provisions 
directly affected by the court decision. See EPA's web site listed in 
the SUPPLEMENTARY INFORMATION section to download an electronic version 
of EPA's May 14, 1999, and DOT's January 2, 2002, memoranda 
implementing the March 1999 court decision.
    Today's final rule is based on the October 5, 2001, proposed rule 
entitled, ``Transportation Conformity Rule Amendments: Minor Revision 
of 18-month Requirement for Initial SIP Submissions and Addition of 
Grace Period for Newly Designated Nonattainment Areas'' (66 FR 50954) 
and comments received on that proposal. The public comment period for 
the proposed rule ended on November 5, 2001. EPA received twelve public 
comments on the proposed rule from metropolitan planning organizations, 
state transportation and air quality agencies, and an environmental 
group.
    This final rule makes two minor changes to the October 5, 2001, 
proposed rule that further clarify the applicability of the one-year 
conformity grace period to newly designated nonattainment areas. No 
other modifications to the proposed rule, however, have been made in 
today's final rule. EPA will not restate here its rationale for the 
changes to the conformity rule that are identical to the October 5 
proposal. The reader is referred to the proposal notice for such 
discussions.

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

A. What Are We Finalizing?

    Today, EPA is adding the existing one-year conformity grace period 
for newly designated nonattainment areas for a given air quality 
standard to the transportation conformity rule. We are finalizing this 
change to make the transportation conformity rule consistent with an 
October 27, 2000, amendment to the Clean Air Act (42 U.S.C. 
7506(c)(6)).
    Specifically, the October 2000 amendment provides areas, that for 
the first time are designated nonattainment for a given air quality 
standard, with a one-year grace period before the conformity regulation 
applies with respect to that standard. This grace period begins upon 
the effective date of EPA's published notice in the Federal Register 
that designates an area as nonattainment. Although today's final rule 
incorporates the grace period into the transportation conformity rule, 
it has been available to newly designated nonattainment areas as a 
matter of law since Congress enacted the October 2000 amendment to the 
Act. For more information on what defines a ``newly designated'' 
nonattainment area, see the October 5, 2001, proposal to today's 
rulemaking.

B. 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 as 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 the first time for a given standard, 
metropolitan areas must have a conforming transportation plan and 
Transportation Improvement Program (TIP) in place to fund or approve 
transportation projects. If, at the conclusion of the one-year grace 
period, a metropolitan area is not able to make a conformity 
determination for its plan and TIP, the area will be in what is known 
as 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, during a conformity lapse exempt projects listed in 
Sec. 93.126 (e.g., safety projects), projects listed in Sec. 93.127 and 
Sec. 93.128, and project phases that have received all applicable 
funding commitments or approvals from the FHWA, FTA or state and local 
authorizing agencies can proceed toward implementation. Transportation 
control measures (TCMs) that EPA has approved into a SIP can also 
proceed during a lapse. TCMs are projects that support air quality 
goals by reducing travel or relieving congestion.
    The transportation plan and TIP must conform with respect to all 
pollutants for which the area is designated nonattainment to end the 
conformity lapse. Transportation conformity applies in areas that are 
designated nonattainment or maintenance for ozone, carbon monoxide, 
particulate matter, and nitrogen dioxide. For example, a carbon 
monoxide nonattainment area that 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 carbon monoxide. By the end of the one-year 
grace period, a conforming

[[Page 50810]]

transportation plan and TIP must be in place for all pollutants in a 
given area, in this case, for carbon monoxide and ozone.

C. What Comments Did We Receive?

    In general, commenters supported amending the conformity rule to 
include the one-year conformity grace period for newly designated 
nonattainment areas. Most commenters believe that newly designated 
areas, especially those with little or no conformity experience, need 
the additional time to evaluate their long range transportation plans, 
TIPs and projects, and to complete the conformity process. Although the 
grace period has been available to newly designated areas since the 
enactment of the October 2000 Clean Air Act amendment, several 
commenters felt that its inclusion into the conformity rule will help 
to reduce confusion and provide assurance to future newly designated 
areas.
    Though most commenters agreed with amending the conformity rule to 
include the one-year grace period, some commenters argued that one year 
is not enough time to complete the transportation planning and 
conformity processes when an area becomes designated nonattainment for 
a given air quality standard for the first time. Some of these 
commenters believe that a longer grace period of three years is more 
appropriate.
    The October 2000 Clean Air Act amendment specifically provides 
newly designated areas with a one-year grace period, after which 
conformity applies. Therefore, we believe that the statutory language 
precludes EPA from extending the conformity grace period beyond one 
year for new areas. We should also emphasize, however, that areas will 
have prior notification of their pending designation well before the 
Federal Register notice announcing their designation is published. We 
encourage areas to use the time provided by the designation process to 
begin preparing themselves for implementing the conformity regulation.
    One commenter also requested that EPA consider delaying the 
effective date of designation to 60-90 days after a Federal Register 
notice is published, so that areas will have more time beyond the one-
year grace period to meet the conformity requirements. Generally, the 
amount of time between publication and effective date is established 
through EPA's administrative discretion on a case-by-case basis. 
Therefore, we do intend to consider how areas are designated, 
particularly for areas designated under new air quality standards, so 
that the transition to implementing the conformity regulation will be 
reasonable. Furthermore, as previously stated, the designation process 
will provide areas advanced notification of their pending designation. 
Areas should use this additional time prior to the one-year conformity 
grace period to prepare for the implementation of the conformity 
regulation and other Clean Air Act requirements. EPA can not now 
determine the appropriate effective date for all future designations, 
but will continue to do so, as appropriate on a case-by-case basis, in 
the course of future designation rulemaking.
    Finally, EPA received a comment questioning whether the proposed 
rule text included in our October 5, 2001, proposal is consistent with 
the statutory language in the Clean Air Act, section 176(c)(6). 
Specifically, one commenter suggested that the proposed rule language 
does not incorporate the limitation that the one-year grace period only 
applies to areas that are designated nonattainment for a given 
pollutant for the ``first'' time. This commenter argued that the Clean 
Air Act precludes the availability of the grace period to areas that 
were once nonattainment for a standard, redesignated to attainment 
under Clean Air Act section 107(d)(3), but then designated back to 
nonattainment because they again violated the same air quality 
standard.
    EPA agrees with this commenter's interpretation of the statutory 
language; we do not believe that the grace period is available to areas 
that are designated nonattainment for a given pollutant and standard 
more than one time. The preamble to the October 5, 2001, proposal 
further supports this limitation by stating that the conformity grace 
period is not available to areas that have been previously designated 
nonattainment for a given pollutant and standard.
    Although EPA continues to believe that the proposed regulatory 
language for Sec. 93.102(d) is consistent with the Clean Air Act, we 
are finalizing two minor clarifying changes to the proposed rule to 
ensure that the grace period is correctly implemented. Specifically, we 
have clarified in the final rule language that the grace period is only 
available to areas that have been ``continuously'' designated 
attainment for a given standard since 1990, or have not been designated 
at all for a given standard for that same period. In addition, we 
specify that for areas that are designated nonattainment for the first 
time for a given air quality standard, the one-year conformity grace 
period only applies ``with respect to that standard.'' These minor 
clarifications ensure that the regulatory language limits the 
applicability of the one-year grace period to only areas that have been 
designated nonattainment for a given pollutant and standard for the 
first time, and therefore, is consistent with our interpretation and 
implementation of the Clean Air Act section 176(c)(6). EPA believes 
that a reproposal is not necessary to incorporate these minor 
clarifying changes in today's final rule, as these clarifications are 
consistent with EPA's original intentions and stakeholders' 
understanding of the proposed regulatory language.

III. Conformity Determinations for Initial SIP Submissions

A. What Are We Finalizing?

    As in the proposed rule, this final rule revises Sec. 93.104(e)(2) 
to change the trigger point or starting point of the requirement to 
determine conformity after an initial SIP submission is made. With this 
rule change, conformity must be determined 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. Today's 
action changes the 1997 conformity rule that required conformity to be 
determined within 18 months of the submission date for an initial SIP. 
The net effect is that areas will have the full 18 months to satisfy 
the conformity requirement for initial submissions once adequate 
budgets have become available for conformity. EPA is promulgating this 
minor rule revision to provide a reasonable response to an indirect 
impact of the March 2, 1999, court decision that requires EPA to first 
find the budgets from an initial SIP submission adequate before such 
budgets can be used in a conformity determination.
    Today's final rule will also change the starting point for 18-month 
clocks that are currently running for areas with initial SIP 
submissions, so that these areas are given the full 18 months to 
determine conformity to their initial SIPs. In other words, in areas 
where a SIP has been submitted and EPA is currently reviewing it for 
adequacy, the 18-month clock required by Sec. 93.104(e)(2) will not 
start until the effective date of our adequacy finding (i.e., today's 
action voids the current 18-month clock that started from the SIP 
submission date for these areas). If we are currently reviewing the 
adequacy of a submitted SIP, and subsequently find it inadequate, the 
18-month clock will not start because today's rule requires EPA to 
first find budgets in initial SIP submissions adequate before 
Sec. 93.104(e)(2) applies. Finally, for areas

[[Page 50811]]

that have submitted initial SIPs that EPA has already found adequate 
and to which conformity has not yet been determined, this final rule 
will restart the 18-month clock from the effective date of EPA's 
positive adequacy finding.
    Consistent with the proposed rule, today's final rule will not 
require an 18-month clock to begin if budgets from an initial SIP 
submission are found inadequate. Furthermore, this rule will void any 
18-month clocks that are running for initial SIP submissions that EPA 
finds adequate, but subsequently finds inadequate before a conformity 
determination is made, at the time that EPA finds such budgets 
inadequate.
    Today's action 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 clock will still be triggered for the first attainment 
demonstration that an area submits and EPA subsequently finds adequate, 
as well as for the first rate-of-progress SIP for a given year and 
maintenance plan that is submitted and found adequate. Today's rule 
changes only the date on which these 18-month clocks begin to run.
    In addition, today's action 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, areas 
do not have to satisfy this requirement again for subsequent 
submissions of the same type prior to EPA SIP approval. EPA believes 
that the requirement to update conformity every three years (40 CFR 
93.104), along with other transportation planning and conformity 
requirements, provides sufficient additional opportunity for 
periodically introducing new air quality information into the 
conformity process. Furthermore, this action does not change the 
conformity rule's requirement of 40 CFR 93.104(e)(3); areas are still 
required to demonstrate conformity within 18 months of EPA's approval 
of a SIP containing revised budgets.
    Finally, as indicated in the proposal, today's final rule will not 
affect those SIPs that are submitted to reflect additional control 
measures or to update MOBILE5 interim estimates of federal Tier 2 
vehicle and fuel standards with MOBILE6. EPA has already stated that 
these SIP revisions are not initial SIP submissions that start 18-month 
clocks under 40 CFR 93.104(e)(2). EPA addressed this issue in the July 
28, 2000, supplemental notice of proposed rulemaking (65 FR 46386) for 
certain ozone attainment areas.
    For more information on what defines an ``initial SIP submission,'' 
see the October 5, 2001, proposal to today's final rule.

B. Why Is This Rule Change Necessary?

    Today's rule change is necessary because it provides a reasonable 
response to an indirect impact of the March 2, 1999, court decision. In 
its March 1999, decision, the court ruled that EPA must first find 
newly submitted motor vehicle emissions budgets adequate before such 
budgets can be used in a conformity determination. An effect of the 
combination of the court decision and EPA's previous rule was that a 
significant portion of the 18-month period for demonstrating conformity 
could elapse prior to the time EPA made a determination that the 
submitted budgets were adequate.
    As described in our May 14, 1999, guidance implementing the court's 
decision, EPA's current adequacy process for a newly submitted initial 
SIP starts when the 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. During the adequacy review period, the public is provided at 
least 30 days to comment on the appropriateness of the newly submitted 
budgets. EPA must then address all comments received for the submitted 
budgets before we can make our adequacy finding. Areas cannot begin the 
process of determining conformity using the submitted budgets with 
certainty until EPA has determined that the budgets are adequate.
    Under the conformity rule prior to today and the court decision, a 
conformity determination cannot be made until budgets are found 
adequate, and therefore, transportation agencies should not be expected 
to invest valuable time and resources completing a regional emissions 
analysis and conformity determination prior to knowing which SIP 
budgets apply. As a result, under the prior rule, areas had 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 was complex and subsequently delayed, 
particularly in situations with significant public involvement, areas 
may have had even less time to determine conformity under the previous 
rule. As a consequence, the shortening of the 18-month period by the 
amount of time needed for the adequacy review process could lead to 
significant difficulties for those that implement the conformity 
program.
    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 this rule change is 
reasonable and necessary, given that this additional time needed for 
adequacy review was not contemplated when the original 18-month initial 
SIP conformity requirement was established.
    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. In 
these cases, an 18-month period provides areas with the time needed to 
assess new information contained in a SIP, perform additional emissions 
analyses and provide the public with an opportunity to review new 
changes to the transportation plan and TIP and conformity 
determination. 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.
    For more information on EPA's adequacy process for initial SIP 
submissions, see the SUPPLEMENTARY INFORMATION section in this final 
rule to download a copy of EPA's May 14, 1999 memorandum implementing 
the court's decision.

C. What Comments Did We Receive?

    The majority of commenters agreed that the 18-month requirement for 
conformity to initial SIP submissions should be aligned with EPA's 
adequacy finding for such submitted budgets. Most commenters supported 
this rule change, as it will allow for greater certainty in the 
conformity process and will provide transportation planners sufficient 
time to incorporate new

[[Page 50812]]

information into the transportation planning and conformity processes.
    One commenter, however, believed that the proposed rule is 
arbitrary and capricious because it could potentially delay 
implementing new budgets in nonattainment areas where expeditious 
emissions reductions are necessary to meet statutory requirements and 
deadlines. The commenter asserted that 18 months is an excessive amount 
of time to allow for a revision of the plan and TIP to take place, and 
that the time frame for redetermining conformity when new budgets 
become available should be tailored to the time remaining before a 
required milestone or attainment year.
    In addition, the commenter stated that EPA's proposal is 
inconsistent with the Clean Air Act's requirements for how often 
conformity determinations should be conducted. The commenter 
acknowledged that Clean Air Act section 176(c)(4)(B)(ii) provides EPA 
discretion in determining the frequency of conformity determinations, 
but believed that EPA must also consider Congress' intention to have 
transportation agencies be ``active players'' in implementing the 
emission reductions required for reasonable further progress or 
attainment. The commenter cited Congressional records from the 
development of the 1990 Clean Air Act that stated that transportation 
activities can only be accepted by DOT if they are consistent with the 
SIP's air quality goals; if a transportation plan and TIP does not meet 
the emissions targets set by the SIP and further motor vehicle emission 
reductions are needed to reach attainment, the plan and TIP must be 
modified to achieve the SIP's budgets.
    EPA does not agree that the final rule will further delay the use 
of new budgets in the transportation planning and conformity processes. 
We are finalizing today's rule change to provide a reasonable response 
to an indirect effect of the March 2, 1999, court decision that 
requires EPA to formally review and find initially submitted budgets 
adequate before they can be used in a conformity determination. As a 
result of the court's ruling, we do not believe that starting an 18-
month clock from the submission of a budget that may or may not be 
adequate and available for use for conformity purposes is 
environmentally sensible. We believe that good air quality results will 
be most effectively achieved by ensuring that new budgets are 
consistent with timely attainment or maintenance through the adequacy 
process before requiring their use in the transportation planning and 
conformity processes.
    EPA also believes that the final rule is consistent with the Clean 
Air Act. While EPA agrees that the Clean Air Act requires 
transportation activities to conform to the SIP before federal funding 
and approval occurs and that the latest SIP budget should be used in 
such a conformity determination, the Clean Air Act does not 
specifically require conformity determinations to be done more often 
than every three years. Clean Air Act section 176(c)(4)(B) requires EPA 
to promulgate conformity procedures and criteria that ``shall, at a 
minimum, * * * address the appropriate frequency for making conformity 
determinations, but in no case shall such determinations for 
transportation plans and programs be less frequent than every three 
years * * *''
    EPA established the frequency requirements for conformity 
determinations covered by 40 CFR 93.104 in previous rulemakings, 
including the requirements to determine plan/TIP conformity within 18 
months of certain SIP actions (e.g., initial SIP submissions, EPA SIP 
approvals). The conformity rule's frequency requirements meet the 
statutory minimum and, along with the requirement that new plans, TIPs, 
and plan/TIP amendments must demonstrate conformity before they can be 
implemented in between 3-year update cycles, provide sufficient 
opportunities for reevaluating plans and TIPs in relation to new SIPs, 
especially in areas that have more significant air quality challenges. 
Therefore, even in cases where EPA's adequacy findings require more 
than three months to complete, existing conformity and transportation 
planning requirements provide a safeguard to prevent negative impacts 
on air quality.
    Moreover, areas typically begin considering new air quality 
information during the transportation planning process prior to EPA's 
formal adequacy finding for initial SIP submissions, as our pending 
adequacy finding on newly submitted budgets may necessitate additional 
emissions reductions or alterations to an area's current plan and TIP. 
In other words, transportation planners frequently become aware through 
early consultation with their air quality partners of when new, more 
stringent budgets are being developed, and thus, have the opportunity 
to consider changes to the transportation plan and TIP to ensure 
conformity to those new budgets in the future. Therefore, EPA continues 
to believe that the iterative nature of the conformity and 
transportation planning processes, along with early and effective 
interagency consultation, allows for new transportation activities to 
be continuously evaluated to ensure that attainment is not delayed.
    Furthermore, it is important to understand the role that 
transportation conformity plays in ensuring clean air. The 
transportation conformity process is one of many mechanisms established 
by the Clean Air Act for protecting public health. Although 
transportation conformity ensures that the SIP's motor vehicle 
emissions targets are achieved through the transportation planning 
process, air quality planners and EPA are primarily responsible for 
ensuring that SIPs containing sufficient emissions reductions to meet 
applicable air quality requirements are developed according to 
statutory requirements and are available in the transportation planning 
process in a timely manner.
    This rule change will not have a significant impact on air quality 
because it in no way affects the overall statutory requirements and 
deadlines established to attain the air quality standards. The Clean 
Air Act defines the dates by which nonattainment areas must attain the 
air quality standards. It is the responsibility of EPA and the state 
and local air quality agencies to ensure that SIPs can achieve the 
necessary reductions to meet these deadlines, taking into account, 
among other factors, control measure implementation schedules and the 
timing of conformity.
    EPA also believes that the suggested approach of tailoring the 
amount of time that an area has to redetermine conformity with the 
amount of time remaining before an area's next required milestone or 
attainment year would lead to inconsistencies and confusion in 
implementing the conformity rule. Moreover, the practical 
implementation of adjusting the time allowed to redetermine conformity 
following the submission of each initial SIP would introduce a great 
deal of uncertainty in the air quality and transportation planning 
processes, and would be logistically difficult and burdensome to 
implement.
    Transportation conformity is a process that coordinates two 
different planning processes--transportation and air quality planning. 
As a result, EPA has an obligation to balance the need to incorporate 
new air quality planning information and the need of transportation 
planners to have sufficient time to incorporate this new information 
into their planning process. We believe that today's rule change 
regarding the conformity requirement for initial SIP submissions will 
achieve

[[Page 50813]]

this balance, as well as remain within the boundaries of the statutory 
requirements.
    The same commenter also claimed that EPA provided no rational basis 
in the proposal for providing areas with an 18-month time period for 
redetermining conformity to an initial SIP submission. Alternatively, 
the commenter suggested providing areas with a shorter time period of 
nine months to meet the conformity requirement for initial SIP 
submissions, particularly when the time between submission of a SIP 
budget and a statutory attainment or reasonable further progress 
deadline is less than 24-36 months, or when such deadlines have not 
been met. According to the commenter, expediting conformity 
determinations in these situations would ensure that motor vehicle 
emissions control measures, such as transportation control measures and 
transit capital investments, will be in place in time to achieve 
necessary emissions reductions.
    EPA does not believe that the role of conformity, or of this rule 
change in particular, is to facilitate emissions reductions in the 
manner in which this commenter has suggested. The conformity provisions 
of the statute merely require that transportation activities conform to 
the SIP, and that such determinations include new transportation 
activities and are conducted at least every three years.
    For this rulemaking, EPA did not propose extending or reducing the 
18-month time period that is already provided to areas to redetermine 
conformity to initially submitted SIPs under existing federal rules. 
The 18-month time period for initial SIP submissions was established 
through the November 14, 1995, final rule (60 FR 57182). When EPA 
promulgated this rulemaking, we concluded that 18-months was an 
appropriate time frame in which to incorporate new SIP submissions into 
the transportation planning process. Since that time, no new 
information has indicated that the 18-month time period is 
inappropriate, as explained further below. Today's final rule only 
changes the starting point of the 18-month time period for initial SIP 
submissions. This change is needed to response to an indirect impact of 
the March 2, 1999, court decision in which the court ruled that budgets 
could not be used for conformity purposes until EPA has found them 
adequate.
    Moreover, from EPA's experience implementing the conformity rule to 
date, providing areas with 18 months to determine conformity to new SIP 
budgets is a reasonable time period, given the amount of time, 
resources and public participation that is required for the 
transportation planning and conformity processes. Prior to our November 
14, 1995, amendment to the conformity rule, areas only had 12 months to 
redetermine conformity to an initial SIP submission. Due to the 
overwhelming difficulties areas had in meeting these 12-month clocks, 
EPA proposed, considered public comment, and finalized extending the 
conformity requirement for initial SIP submissions to 18 months. As a 
result, EPA continues to believe that 18 months from an initial SIP 
conformity trigger for all areas is the most reasonable and workable 
time frame for redetermining conformity to initial SIPs. For more 
information regarding EPA's rationale and response to comments for 
extending the initial SIP conformity trigger to 18 months, see our 
November 1995 rulemaking. An electronic version of this rulemaking can 
be downloaded from EPA's web site listed in the SUPPLEMENTARY 
INFORMATION section of this rule.
    In addition, EPA believes that the existing transportation and air 
quality planning requirements do ensure that motor vehicle control 
measures that are approved into a SIP are implemented in such a manner 
that achieves the necessary emissions reductions in a timely fashion. 
Therefore, we do not believe that conformity determinations need to be 
expedited specifically for this purpose. Clean Air Act sections 174(a) 
and 176(c)(4) require the inclusion of transportation planners in the 
SIP development process and the formal establishment of consultation 
procedures among state and local transportation and air quality 
agencies involved in the conformity process, respectively. This 
required consultation among transportation and air quality agencies is 
intended to ensure that the transportation planning process becomes a 
routine component of any analysis (e.g., determining implementation 
schedules, evaluating emissions benefits, etc.) involving 
transportation control measures slated for inclusion in a SIP. 
Furthermore, as a practical matter, transportation projects, including 
those that have emissions reduction benefits, cannot receive federal 
funding or approval unless they are contained in a fiscally constrained 
and conforming transportation plan and TIP that has been approved 
through the transportation planning process, pursuant to 23 CFR part 
450 and 49 CFR part 613. Therefore, these transportation and air 
quality planning requirements ensure that any transportation measure 
that EPA approves into a SIP has been coordinated through the 
transportation planning process and is designed to timely reduce 
emissions in accordance with the SIP's purpose of achieving further 
progress, attainment or maintenance.
    The same commenter expressed concern over not requiring a new 18-
month clock when a conformity determination is made using budgets that 
EPA has found adequate, but not yet approved, prior to a subsequent 
submission of new, more stringent budgets for the same Clean Air Act 
requirement. In this particular case, the commenter believes that 
Sec. 93.104(e)(2) should be triggered again, thus requiring areas to 
revise their plan and TIP to conform to the newly submitted revised 
budgets upon EPA's adequacy finding. By not requiring Sec. 93.104(e)(2) 
to apply in this situation, the commenter argues that this rule will 
sever the link between the conformity process and the obligation of 
transportation agencies to revise plans and TIPs to achieve the Clean 
Air Act's objectives.
    EPA disagrees. EPA did not propose the additional 18-month 
requirement for the unique situation the commenter describes, and 
therefore can not address this issue in today's final rule. Moreover, 
this suggested requirement is contrary to the historic position that 
EPA has held on this issue, as described in the preamble to our August 
29, 1995 proposed rulemaking initially establishing the 18-month 
requirement (60 FR 44792). In that proposal to extend the conformity 
requirement for initial SIP submissions to within 18 months of their 
submissions, EPA states: ``If conformity to the initial submission has 
been demonstrated and that submission is subsequently revised, no 18-
month clock would start until * * * the SIP is approved by EPA.'' EPA's 
intent and implementation of Sec. 93.104(e)(2) of the conformity rule 
has always been to serve as a one-time conformity requirement for 
initial SIP submissions, so that areas can use new motor vehicle 
emissions budgets in a conformity determination when no budgets for a 
particular year and/or purpose had previously existed. Historically, we 
have never considered Sec. 93.104(e)(2) to be an iterative requirement 
that mandates continual conformity updates outside of the normal 
transportation planning process. Therefore, EPA continues to maintain 
that once conformity is determined and Sec. 93.104(e)(2) is satisfied 
for a SIP having a given purpose (e.g., attainment, rate-of-progress, 
maintenance), it is not necessary for areas to meet this requirement 
again for subsequent

[[Page 50814]]

submissions of the same type of SIP prior to EPA's approval. Areas will 
again be required to determine conformity within 18 months of EPA's 
approval of any revised budgets. However, in this situation, if new 
transportation activities are proposed after EPA finds the revised 
budgets adequate, but before SIP approval, a conformity determination 
based on the revised budgets along with all other applicable budgets 
would be required before such activities could be implemented. In other 
words, the revised budgets must be used (along with all other existing 
applicable budgets) in any determination after they have been found 
adequate, even though they are not subject to a new 18-month clock, 
pursuant to Sec. 93.104(e)(2).
    Furthermore, we do not agree that the integration of air quality 
and transportation planning via the conformity process will be 
compromised as a result of implementing Sec. 93.104(e)(2) as a one-time 
requirement for each initial SIP consistent with the current rule. Due 
to the iterative nature of the transportation planning and conformity 
processes, the most current air quality information is incorporated on 
a regular and consistent basis. The three-year conformity requirement 
for transportation plans and TIPs, along with other transportation 
planning and conformity requirements, provides for the reasonable and 
timely introduction of the most current information into the conformity 
process.
    The same commenter also requested from EPA a clarification that 
Sec. 93.118(a) requires a conformity determination for a plan and TIP 
to show consistency with all applicable adequate and approved budgets 
at the time a conformity determination is made. EPA agrees that this 
requirement applies for all conformity determinations, including those 
made for TIPs that rely on a previous emissions analysis pursuant to 
Sec. 93.122(e).
    Like all conformity determinations, a determination for a TIP that 
relies on a previous emissions analysis must satisfy the emissions test 
requirements of Sec. 93.118 (or Sec. 93.119, if no applicable adequate 
or approved budgets exist), and must do so over the time frame of the 
transportation plan. EPA agrees with this clarification of 
Sec. 93.118(a) and its requirement for demonstrating conformity using 
all applicable budgets, and will consider elaborating on this proposed 
clarification in a future rulemaking. Since EPA did not propose such a 
change, EPA is not making any changes in this final rule with regard to 
the described interpretation of Sec. 93.118(a). Nonetheless, EPA 
reiterates that this clarification is the intent of the existing rule.
    Finally, one commenter indicated that the October 2001 proposal was 
not clear as to how the one-year conformity grace period and the 18-
month requirement for initial SIPs relate to one another. From the 
commenter's reading of the proposed rule amendments, it appeared that 
the one-year grace period and 18-month requirement for initial SIP 
submissions overlap.
    In response, the one-year conformity grace period and the 18-month 
conformity requirement for initial SIPs are not interrelated. 
Typically, when areas are newly designated they do not have a submitted 
SIP for which an 18-month clock would start. In the unique situation 
where an area is newly designated and submits an initial SIP during the 
one-year grace period, conformity of the plan and TIP would still need 
to be demonstrated at the conclusion of the one-year grace period. If 
EPA has found adequate or approved the submitted SIP and budgets before 
the grace period expires, those adequate or approved budgets must be 
used for conformity. Therefore in this situation, both conformity 
requirements--a conforming plan and TIP one year after designation and 
the 18-month conformity requirement for the submitted SIP--would be 
satisfied if a conformity determination using the adequate or approved 
budgets is made prior to the expiration date of the one-year grace 
period.
    If no adequate or approved budgets exist at the time that the one-
year grace period expires, areas should use the conformity test(s) that 
EPA has deemed appropriate for satisfying the conformity requirement. 
EPA is currently considering what conformity test(s) will apply for 
areas that are designated nonattainment under new air quality standards 
(e.g., EPA's ozone and particulate matter standards issued in 1997) and 
will address this issue in future guidance documents and rulemakings 
prior to area designations. In this situation, an 18-month conformity 
clock pursuant to Sec. 93.104(e)(2) as amended today would not start 
until these areas submit an initial SIP and EPA has found the submitted 
budgets adequate for conformity purposes.

IV. What Comments That Addressed Topics Other Than Those Covered in 
This Rulemaking Did We Receive?

    Several commenters raised concerns about aspects of the 
transportation conformity rule that are not germane to this specific 
rulemaking, including the implementation of the conformity regulation 
under EPA's new 8-hour ozone and PM-2.5 (particulate matter with an 
aerodynamic diameter less than or equal to a nominal 2.5 micrometers) 
standards, and the impact of the March 2, 1999, court decision on 
projects that can proceed during a conformity lapse. These comments do 
not affect whether EPA should proceed with this final action, but EPA 
will be considering these comments when we develop policy guidance and 
future rulemakings to address these larger issues.
    In addition, one commenter requested that EPA consider eliminating 
two additional conformity SIP triggers required in Sec. 93.104(e). 
Specifically, the commenter requested that we eliminate the 18-month 
conformity frequency requirements for SIP approvals that establish new 
budgets (Sec. 93.104(e)(3)) and for SIP approvals that revise TCMs 
(Sec. 93.104(e)(4)). This commenter characterized these additional SIP 
requirements as being superfluous and onerous to the transportation 
planning process.
    For today's rulemaking, EPA did not propose eliminating the 
conformity triggers outlined in 93.104(e)(3) and 93.104(e)(4), nor have 
we provided the public with an opportunity to comment on the suggested 
deletion of these provisions from the conformity rule. Therefore, we 
are not making any changes to these requirements at this time. However, 
we will consider this flexibility, along with others, for future 
rulemakings. A complete response to comments documents is in the docket 
for this rulemaking (see ADDRESSES for more information regarding the 
docket and additional documents relevant to this rulemaking).

V. How Does Today's Final Rule 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 (including 
those that have been approved as a Memorandum of Understanding or 
Memorandum of Agreement), 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 that include Sec. 93.104(e)(2) from the 1997 
transportation conformity rule (62 FR 43780). In these areas, today's 
final rule changes will be effective only when EPA approves a 
conformity SIP revision

[[Page 50815]]

that includes the amendment to align the 18-month clock for initial SIP 
submissions with EPA's adequacy finding. EPA will work with states as 
appropriate to approve such revisions as expeditiously as possible 
through flexible administrative techniques such as parallel processing 
and direct final rulemaking to insure that all areas will be able to 
benefit from this rule change in a timely manner.
    In some areas, however, EPA may have approved such provisions in 
error, if EPA had approved a conformity SIP that included 
Sec. 93.104(e)(2) after the March 2, 1999, court decision, but prior to 
today. In these areas, EPA will publish, as appropriate, a technical 
correction in the Federal Register under section 110(k)(6) of the Clean 
Air Act to limit EPA's approval of such SIPs and clarify that 
Sec. 93.104(e)(2) should not have been approved into a conformity SIP 
since the court's ruling indirectly affected this provision by 
requiring EPA to find submitted budgets adequate before the initial SIP 
requirement could be satisfied. Once EPA has corrected its approval of 
such SIPs to exclude the state's version of Sec. 93.104(e)(2), these 
areas will become subject to the amended version of Sec. 93.104(e)(2) 
and 18 month clocks will immediately begin to run from EPA's adequacy 
determination rather than from the submission date of an initial SIP.
    In contrast, the one-year conformity grace period currently applies 
as a statutory matter for all newly designated nonattainment areas, 
including areas that have EPA-approved conformity SIPs, since this 
grace period was required as a matter of law once the Act was amended 
even prior to today's final rule.

VI. 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 final rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB.

B. Paperwork Reduction Act

    This final rule does not impose any new information collection 
requirements from EPA that 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 rule will not have a significant 
impact on a substantial number of small entities. This regulation 
directly affects federal agencies and metropolitan planning 
organizations that 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 final 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 EPA promulgates a 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 of 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 final 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. These rule amendments simplify the conformity 
rule and make it more practicable to implement, in accordance with the 
Clean Air Act and our

[[Page 50816]]

reasonable and thoughtful approach to an indirect impact of the court's 
decision. 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 standard 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 final 
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 final rule 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 13175

    Executive Order 13175: ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.''
    The Clean Air Act requires transportation conformity to apply in 
areas designated nonattainment and maintenance by EPA. Today's minor 
amendments to the conformity rule do not significantly or uniquely 
affect the communities of Indian tribal governments. Specifically, this 
rulemaking will not have substantial direct effects on tribal 
governments, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175. Accordingly, the requirements of Executive Order 
13175 do not apply to this rulemaking.

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 final rule, that 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 affirmatively find the motor vehicle emissions budgets 
contained in a SIP 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 will also provide newly designated 
nonattainment areas with a one-year grace period before conformity 
becomes applicable, as required by an October 2000 amendment to the 
Clean Air Act.
    In summary, one of the provisions in this final rule is required by 
statute and one provision will provide a reasonable response to an 
indirect impact of the court's decision, and by themselves will not 
have substantial impact on States. Thus, the requirements of section 6 
of the Executive Order do not apply to this rulemaking.

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

[[Page 50817]]

FR 28355; May 22, 2001) because it is not a significant regulatory 
action under Executive Order 12866.

J. Submission to Congress and the Comptroller General

    Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to the publication of the rule in today's Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C 
804(2).

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 7, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review, nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such a rule or action. This action may not be challenged later in 
proceeding to enforce its requirements. (See section 307(b)(2) of the 
Administrative Procedures Act.)

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: July 31, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 93 is 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 continuously 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 with 
respect to that standard for 12 months following the effective date of 
final designation to nonattainment for each standard for such 
pollutant.

    3. Section 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(e) and can be used for transportation conformity purposes;
* * * * *

[FR Doc. 02-19797 Filed 8-5-02; 8:45 am]
BILLING CODE 6560-50-P