[Federal Register Volume 60, Number 219 (Tuesday, November 14, 1995)]
[Rules and Regulations]
[Pages 57179-57186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27949]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[FRL-5329-9]
RIN 2060-AF95
Transportation Conformity Rule Amendments: Miscellaneous
Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action makes several changes to the current regulation
requiring transportation plans, programs, and projects to conform to
state air quality implementation plans.
This action allows any transportation control measure from an
approved state implementation plan (SIP) to proceed during a conformity
lapse; aligns the date of conformity lapses with the date of
application of Clean Air Act highway sanctions for any failure to
submit or submission of an incomplete control strategy SIP; extends the
grace period before which areas must determine conformity to a
submitted control strategy implementation plan; establishes a grace
period before which transportation plan and program conformity must be
determined in newly designated nonattainment areas; and corrects the
nitrogen oxides provisions of the transportation conformity rule
consistent with the Clean Air Act and previous commitments made by EPA.
A transportation conformity SIP revision consistent with these
amendments must be submitted to EPA by 12 months from November 14,
1995.
EFFECTIVE DATE: This regulation is effective December 14, 1995, except
for Secs. 51.448(a)(1) and 93.128(a)(1) which will be effective
November 14, 1995, and Secs. 51.394(b)(3)(i), 93.102(b)(3)(i),
51.428(b)(1)(ii), and 93.118(b)(1)(ii) which will be effective February
12, 1996, for the reasons explained in SUPPLEMENTARY INFORMATION.
ADDRESSES: Materials relevant to this rulemaking are contained in
Public Docket A-95-05. The docket is located in room M-1500 Waterside
Mall (ground floor) at the Environmental Protection Agency, 401 M
Street SW., Washington, DC 20460. The docket may be inspected from 8
a.m. to 4 p.m., Monday through Friday, including all non-government
holidays.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, Transportation and
Market Incentives Group, Regional and State Programs Division, U.S.
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI
48105, (313) 741-7842.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the transportation conformity rule,
``Criteria and Procedures for Determining Conformity to State or
Federal Implementation Plans of Transportation Plans, Programs, and
Projects Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Act'' (58 FR 62188, November 24, 1993). Required under section
176(c) of the Clean Air Act, as amended in 1990, the transportation
conformity rule established the criteria and procedures by which the
Federal Highway Administration, the Federal Transit Administration, and
metropolitan planning organizations (MPOs) determine the conformity of
federally funded or approved highway and transit plans, programs, and
projects to state implementation plans (SIPs). Conformity ensures that
transportation planning does not produce new air quality violations,
worsen existing violations, or delay timely attainment of national
ambient air quality standards. According to the Clean Air Act,
federally supported activities must conform to the implementation
plan's purpose of attaining and maintaining these standards.
This final rule is based on the August 29, 1995 proposed rule
entitled, ``Transportation Conformity Rule Amendments: Miscellaneous
Revisions'' (60 FR 44790) and comments received on that proposal. The
public comment period for the proposed rule ended on September 28,
1995.
EPA also issued on August 29, 1995, an interim final rule entitled,
[[Page 57180]]
``Transportation Conformity Rule Amendments: Authority for
Transportation Conformity Nitrogen Oxides Waivers'' (60 FR 44762). The
interim final rule changed the statutory authority for transportation
conformity nitrogen oxides (NOX) waivers from Clean Air Act
section 182(f) to section 182(b)(1), for areas subject to section
182(b)(1). The interim final rule took effect on August 29, 1995,
without prior notice and comment, and the subsequent public comment
period ended on September 28, 1995. This final rule includes the
provisions of the August 29 interim final rule, after completing
notice-and-comment rulemaking procedures on such provisions.
This final rule is the second in a series of three anticipated
amendments to the transportation conformity rule. The first set of
amendments was published as an interim final rule on February 8, 1995
(60 FR 7449), and was finalized on August 7, 1995 (60 FR 40098). The
first set of amendments aligned the dates of conformity lapses (i.e.,
halting of new federally funded highway/transit projects) due to SIP
failures with the application of Clean Air Act highway sanctions for a
few ozone areas and all areas with disapproved SIPs with a protective
finding. The third set of amendments, which will be proposed shortly,
will streamline the conformity rule and address other issues related to
non-federal projects, the build/no-build test, adding projects to the
transportation plan and transportation improvement program (TIP), and
rural nonattainment areas.
II. Description of Final Rule
This final rule makes changes from the proposed rule, involving
transportation control measures (TCMs) and grace periods for new
nonattainment areas. All other provisions of the proposal are included
in this final rule without modification. EPA will not restate here its
rationale for the changes which are identical to the August 29
proposal. The reader is referred to the proposal notice for such
discussions.
A. TCMs
The proposed rule would have allowed TCMs in an approved SIP to
proceed even if the conformity status of the current transportation
plan and TIP lapses, provided the TCMs were in a previously conforming
transportation plan and TIP.
In the final rule, EPA is changing the provisions of the proposal
in response to public comment such that any TCM in an approved SIP may
proceed, regardless of whether there is a currently conforming
transportation plan and TIP or whether the project was once included in
a previously conforming transportation plan and TIP. However, this
position does not alter or affect the title 23 (23 CFR Part 450) or
Federal Transit Act requirements for the funding of TCMs. EPA
acknowledges that the implementation of the Clean Air Act is done in
conjunction with statewide and metropolitan planning requirements of
the Intermodal Surface Transportation Efficiency Act (ISTEA). Most
current and all future TCMs are subject to these provisions and are
generally from a previously conforming transportation plan and TIP.
EPA received public comment that a TCM which is in an approved SIP
should be allowed to proceed at any point in time, regardless of
whether or not the TCM was once included in a previously conforming
transportation plan and TIP. The commenter stated that since SIP
requirements are legally binding, as evidenced by the fact that failure
to comply subjects the violator to enforcement action, EPA cannot
restrict the implementation of a TCM in the context of conformity.
Furthermore, given that approved SIPs must be implemented according to
the Clean Air Act and sanctions can be imposed for nonimplementation,
EPA cannot adopt a rule that has the effect of preventing TCMs in an
approved SIP from being implemented.
EPA agrees with the commenter. Although Clean Air Act sections
176(c)(2) (C) and (D) require that the conforming transportation plan
and TIP be used to determine whether a TCM conforms to an approved SIP,
a TCM contained in an approved SIP must necessarily conform to the
purpose of the SIP, as required by section 176(c)(1). By definition, a
TCM in an approved SIP conforms to the SIP because it is contained in
the SIP. To halt the implementation of TCMs in approved SIPs during a
conformity lapse of a transportation plan and TIP would be contrary to
the purpose of conformity and the approved SIP. EPA is not exempting
TCMs from the requirement for a conformity determination, however.
Also, where applicable, hot-spot analysis would still be required. TCMs
are simply not required to satisfy Secs. 51.420 (93.114) and 51.422
(93.115) because to require such compliance could prevent TCM
implementation.
Another commenter stated that any transportation project that is in
an approved SIP and a previously conforming transportation plan and TIP
should be allowed to proceed during a conformity lapse. EPA believes
that this final rule's change to the proposal accommodates this
comment, because all transportation projects that are in approved SIPs
that require conformity determinations are TCMs. No transportation
project would be approved into a SIP unless it was designed to reduce
emissions from transportation activities, and these projects should be
specifically identified as TCMs.
Although EPA is changing the proposed rule in response to public
comment, EPA does not foresee an instance as a practical matter where a
TCM would be contained in an approved SIP without first meeting the
transportation planning requirements contained in 23 CFR Part 450 and
49 CFR Part 613. In order for EPA to approve a SIP, the measures
contained in the SIP must have commitments from appropriate agencies
and have adequate funding and resources as stipulated in section
110(a)(2)(E) of the Clean Air Act.
In the case of TCMs, EPA expects this to be demonstrated by the
project's inclusion in a fiscally constrained and conforming
transportation plan and TIP.
Furthermore, EPA does not intend to approve SIPs containing TCMs
that have not been coordinated through the transportation planning
process, because the Clean Air Act and ISTEA require that an integrated
transportation/air quality planning process be used as the vehicle to
identify effective TCMs and ensure their funding sources. The
interagency consultation required by the conformity rule and the
States' conformity SIPs is intended to ensure that the transportation
planning process becomes a routine component of any analysis involving
TCMs slated for inclusion in a SIP. Furthermore, as a practical matter,
a project cannot receive federal highway or transit funds or Federal
Highway Administration (FHWA)/Federal Transit Administration (FTA)
approval unless it is contained in a fiscally constrained and
conforming transportation plan and TIP that has been approved through
the transportation planning process, under the requirements of 23 CFR
Part 450 and 49 CFR Part 613.
Finally, projects in approved SIPs remain subject to other planning
requirements, such as provisions of the National Environmental Policy
Act and ISTEA, which further stipulate that these projects be reviewed
through the transportation process prior to approval and
implementation.
[[Page 57181]]
B. Grace Period for New Nonattainment Areas
Like the proposed rule, the final rule allows newly designated
nonattainment areas a 12-month grace period before conformity
determinations to the transportation plan and TIP are required. In
response to public comment, EPA clarifies in the final rule that this
grace period also applies if a nonattainment area's boundaries are
newly expanded. Transportation plan and TIP conformity determinations
will not be required to include transportation projects in the portion
of the area that is newly added until 12 months from the date of the
boundary change. Although the proposed rule did not specifically
discuss applying the 12-month grace period to newly expanded areas, EPA
believes that this is a logical extension of the proposed rule. EPA
believes a grace period is appropriate because transportation plan and
TIP conformity determinations will not have included projects in the
new portion of the nonattainment area prior to the expansion. As
described in the proposal, Clean Air Act section 176(c) allowed a
similar grace period for 12 months after the date of enactment of the
Clean Air Act Amendments of 1990. EPA believes it is consistent with
Congressional intent and appropriate to include such a grace period for
newly designated areas to prevent short-term adverse impacts in the
implementation of transportation projects immediately following
redesignation.
C. Grace Period for Determination of Conformity to Newly Submitted SIPs
Like the proposed rule, this final rule extends the grace period
before which areas need to complete conformity determinations to newly
submitted SIPs. Under this final rule and for reasons explained in the
proposal, conformity to a newly submitted SIP must now be determined
within 18 months of its submission. This grace period provision in
Secs. 51.448(a)(1) and 93.128(a)(1) is effective immediately.
This grace period will prevent the conformity status of certain
plans and TIPs from lapsing on November 15, 1995, in several moderate
and above ozone areas that have not completed conformity determinations
to newly submitted SIPs. This conformity lapse would be contrary to the
public interest because as explained in the proposal EPA now believes
that halting of transportation plan, program, and project
implementation in these cases is not necessary at this time for the
lawful and effective implementation of Clean Air Act section 176(c). If
EPA did not make this provision of the rule effective by November 15,
1995, conformity lapse which is contrary to the public interest could
occur in some areas during the 30-day period between publication and
the effective date which is ordinarily provided under the
Administrative Procedures Act (APA), 5 U.S.C. 553(d). EPA therefore
finds good cause to make this grace period provision contained in this
final rule effective on publication. In addition, the extension of this
grace period relieves a restriction and therefore qualifies for an
exception from the APA's 30-day advance-notice period under 5 U.S.C.
553(d)(1).
The other provisions of this final rule will be effective on
December 14, 1995, except for Secs. 51.394(b)(3)(i), 93.102(b)(3)(i),
51.428(b)(1)(ii), and 93.118(b)(1)(ii) which will be effective 90 days
from November 14, 1995.
D. Alignment of Certain Conformity Lapses With Sanctions
Like the proposed rule, this final rule does not impose a
transportation plan/conformity lapse as a result of failure to submit
or submission of an incomplete ozone, carbon monoxide (CO), particles
with an aerodynamic diameter of less than or equal to a nominal 10
micrometers (PM-10), or nitrogen dioxide (NO2) control strategy
SIP. Conformity lapse as a result of these SIP failures is delayed
until Clean Air Act section 179(b) highway sanctions for these failures
are applied.
Like the proposed rule, this final rule does not change the timing
of conformity lapse for disapproval of any control strategy SIP without
a protective finding. This issue will be addressed in a forthcoming
proposal.
E. NOX Budgets
Like the proposed rule, this final rule requires consistency with
NOx motor vehicle emissions budgets in control strategy SIPs,
regardless of whether a NOx waiver has previously been granted.
However, the NOx build/no-build test and less-than-1990 tests
would not apply to ozone nonattainment areas receiving a NOx
waiver. Furthermore, as described in the Response to Comment section of
today's action, some flexibility is possible for areas that have been
issued a NOx waiver based upon air quality modeling data. Please
refer to that section for further discussion on this issue.
The NOx budget provisions will be effective 90 days from
November 14, 1995. In response to public comment, EPA has delayed this
effective date to prevent difficulties in identifying appropriate
NOx budgets from disrupting conformity determinations that are
currently underway.
EPA believes that Sierra Club v. EPA, 719 F.2d 436 (DC Cir. 1983),
gives EPA the authority to delay the effective date of the NOx
budget provisions in today's action. EPA believes that Sierra Club
provides a legal basis to allow grandfathering when there is an abrupt
departure from requirements that affected parties have previously
relied upon. Although EPA had previously announced that the NOx
budget changes to the transportation conformity rule would be contained
in this action, comments on the proposal indicate that certain areas
are not prepared for these provisions to be effective within the usual
30-day timeframe following publication of the final rule. Therefore,
EPA finds good cause to make these provisions effective 90 days from
November 14, 1995.
F. NOx Waiver Authority
Like the interim final rule, the final rule changes the statutory
authority for transportation conformity NOx waivers from Clean Air
Act section 182(f) to section 182(b)(1), for areas subject to section
182(b)(1). In general, NOx waivers are findings by the EPA
Administrator under Clean Air Act section 182(f) or 182(b) that
additional reductions of NOx would not contribute to attainment of
the ozone national ambient air quality standards by the statutory
deadline. The interim final rule will remain in effect until December
14, 1995, at which time the final rule will be effective and supersede
the interim final rule. As a result, the requirements for NOx
waivers granted after August 29, 1995, remain the same and are not
altered by today's action.
G. Conformity SIP Revision
A conformity SIP revision consistent with these amendments is
required to be submitted to EPA 12 months from November 14, 1995.
Section 176(c)(4)(C) of the Clean Air Act as amended in 1990 allowed
States 12 months from the promulgation of the original transportation
conformity rule to submit conformity SIP revisions. EPA believes that
it is consistent with the statute to provide states a similar time
period to revise their conformity SIPs in response to these rule
revisions.
III. Response to Comments
Twenty comments on the proposed rule and interim final rule were
submitted, including comments from MPOs, state and local air and
transportation agencies, neighborhood associations, and environmental
groups.
[[Page 57182]]
The majority of the comments supported the proposed rule and the
interim final rule. A complete response to comments document is in the
docket. Major comments and EPA responses are summarized here.
A. TCMs
Some comments suggested that TCMs from a submitted (and not yet
approved) SIP should be allowed to proceed at any time, without regard
to the conformity status of the transportation plan and TIP. However,
Clean Air Act section 176(c) requires conformity to the ``applicable
implementation plan.'' Clean Air Act section 302(q) defines an
applicable implementation plan as a portion (or portions) of the
current implementation plan which has (have) been approved or
promulgated by EPA. Projects from a submitted SIP that has not yet been
approved do not necessarily conform to the ``applicable'' (approved)
SIP. In order for such projects, including TCMs, to conform, there must
be a conforming transportation plan and TIP, as required by Clean Air
Act sections 176(c)(2) (C) and (D). For these reasons, only TCMs which
are included in an approved SIP are affected by today's rule change
allowing implementation of TCMs in an approved SIP to proceed during a
transportation plan and TIP conformity lapse.
Similar comments suggesting ways in which to increase the scope and
impact of this final rule changes regarding TCMs are not possible due
to the reasons already outlined above. For example, one commenter
suggested that any new project with a demonstrated emission reduction
benefit, regardless of whether it is in an approved SIP, should be
allowed to proceed even if it was not in a previously conforming
transportation plan and TIP. EPA could not make this change because the
agency has no evidence that such projects conform to the approved SIP.
B. Grace Period for New Nonattainment Areas
One commenter opposed the 12-month grace period for newly
designated nonattainment areas and stated that this grace period is not
consistent with Clean Air Act section 176(c). As stated in the proposed
rule, section 176(c)(3)(B)(i) allowed a similar grace period for 12
months after the date of enactment of the Clean Air Act Amendments of
1990. EPA continues to believe it is appropriate to implement section
176(c) so as to allow this same grace period for newly designated
areas. The existence of the grace period in section 176(c) indicates
that Congress clearly did not wish to immediately halt transportation
activities upon application of section 176(c) to an area.
The commenter suggested that there is sufficient time during the
redesignation process in which areas could plan ahead and prepare to
meet conformity requirements upon being designated to a nonattainment
area. However, as stated in the preamble of the proposed rule,
conformity determinations take time and the 12-month grace period
provides local and state transportation agencies with the temporary
relief that is necessary for these agencies to complete future
conformity requirements. Further, such agencies do not control the
timing of redesignation requests by state air quality agencies.
The commenter also disagreed that Sierra Club v. EPA, 719 F.2d 436
(DC Cir. 1983), gave EPA the authority to grant such a grace period to
newly designated nonattainment areas. EPA believes that Sierra Club
provides a legal basis to allow grandfathering when there is an abrupt
departure from requirements that affected parties have previously
relied upon. Although the case did involve retroactivity, the legal
analysis applies equally to grandfathering from new requirements, and
EPA has historically relied on the case in this context. See, e.g., 54
FR 2214, 2219 (Jan. 19, 1989); 59 FR 13044, 13057 (March 18, 1994).
Although the Court of Appeals did not uphold all of the grandfathering
provisions in Sierra Club, the Court did uphold grandfathering when
supported by reliance. Attainment areas have traditionally relied upon
not being required to fulfill conformity requirements that are mandated
for nonattainment areas. Immediate application of such requirements to
newly designated areas without an appropriate transition period clearly
represents a significant departure from past practice. The commenter
points to Supreme Court case law indicating that if any reliance on
prior law were enough to shield everyone from all changed requirements,
all laws would be frozen forever. However, this case law does not
prohibit limited grandfathering from new complex requirements for a
short time period to allow areas time to complete activities necessary
to comply with such requirements, where such areas had relied on past
law that did not impose such requirements. Based on the Court's
interpretations of reliance in Sierra Club, EPA believes that this case
supports its authority to grant a 12-month grace period to newly
designated nonattainment areas prior to subjecting such areas to
transportation conformity requirements.
C. Grace Period for Determination of Conformity to Newly Submitted SIPs
Several commenters were concerned that the 18-month grace period
before which a conformity determination is required for a newly
submitted SIP was not extended to those areas that have already
submitted a SIP revision. Specifically, the comments raised concerns
surrounding the equity of the proposed grace period.
The proposed rule states that the grace period would begin upon the
date of a new SIP's submission. This also applies to SIPs submitted
prior to today's rule change. Therefore, although areas that have
already submitted a SIP prior to this final action will not benefit
from the grace period extension as much as areas that have not yet
submitted a SIP, they will still get the full 18-month period from SIP
submission to make a conformity determination. EPA believes that this
final action makes the conformity rule more equitable because every
area has the same time period in which to determine conformity to newly
submitted SIPs. Prior to this final action, time periods for completing
conformity determinations were calculated starting from SIP submittal
deadlines.
One commenter stated that EPA did not provide adequate rationale in
the preamble of the proposed rule regarding the selection of the length
of this grace period. The commenter further suggested that 12 months
would be a more appropriate grace period length and would be consistent
with prior EPA policy regarding this issue. Based on experience with
the transportation conformity rule to date, EPA continues to believe
that 18 months reflects the most realistic timeframe required for
nonattainment areas to determine conformity to newly submitted SIPs.
Conformity determinations are typically completed by local
transportation planners on an annual basis. If the grace period was 12
months instead of 18 months, a newly submitted SIP could be introduced
into a local conformity cycle at a time in that cycle that is
disruptive to the local transportation planning process. Such a
disruption could necessitate that additional time be required to
complete the conformity determination, which may then delay the
implementation of local transportation projects. EPA's experience with
the existing 12-month grace period has convinced the agency that 12
months is an unrealistic grace period in this context.
[[Page 57183]]
D. Alignment of Certain Conformity Lapses With Sanctions
All commenters that commented on this issue supported the alignment
of conformity lapses due to SIP failures with Clean Air Act sanctions.
In addition, some commenters advocated aligning lapses and sanction
deadlines even in the case of SIP disapprovals without a protective
finding. As utilized under transportation conformity regulations, a
protective finding is a mechanism that would allow a submitted SIP's
motor vehicle emissions budget to be used for conformity purposes even
though the SIP does not fulfill all requirements in enforceable form,
as stipulated by Clean Air Act section 110(a)(2)(A). This conclusion is
based on a determination by EPA that a SIP would have been approvable
with respect to requirements for emissions reductions if all of the
section 110(a)(2)(A) requirements had been met. Thus, a protective
finding allows an area to proceed with transportation planning and
project implementation while the area revises the SIP. In contrast, a
SIP that is disapproved without a protective finding does not contain
an emissions budget that could be used for transportation conformity
purposes. A protective finding only allows the SIP's motor vehicle
emissions budget to be used for conformity purposes; it does not
guarantee that the SIP will eventually be approved.
EPA has been aware of stakeholder concerns regarding conformity
lapse following SIP disapprovals without protective findings, and as
EPA has previously stated, this issue will be raised for comment in the
preamble of the upcoming proposal of the third set of conformity
amendments. EPA could not take final action on this issue today because
it had never proposed to do so.
E. NOX Budgets
Several commenters stated that consistency with a NOX budget
should not be required for areas that have received a NOX waiver
from EPA based on air quality modeling. NOX waivers are findings
by the EPA Administrator under Clean Air Act section 182(b) or 182(f)
that additional reductions of NOX would not contribute to
attainment of the ozone national ambient air quality standards by the
statutory deadline. NOX waivers may be granted on the basis of
modeling demonstrations or monitoring data.
For the reasons described in the preamble to the August 29, 1995,
proposal, EPA continues to believe that the Clean Air Act requires
consistency with NOX motor vehicle emissions budgets in control
strategy SIPs, regardless of whether a NOX waiver has previously
been granted. The demonstration typically utilized to justify a
NOX waiver does not necessarily address the level of NOX
emissions necessary for an area to attain and maintain the ozone
standard. That is, a NOX waiver's demonstration that additional
NOX reductions would not contribute to attainment does not
necessarily mean that NOX increases would not affect an area's
ability to attain and maintain the ozone standard. The purpose of
conformity to a NOX budget is to prevent NOX emissions from
reaching levels that would threaten attainment or maintenance of the
ozone standard.
The commenters opposing a NOX budget test in areas with
modeling-based NOX waivers state that the attainment
demonstrations in such areas do not include NOX inventories or
NOX projections with sufficient accuracy to warrant their use in
determining conformity. Although the attainment demonstration contains
NOX projections that EPA could treat as an ``implicit budget,''
areas may not have performed the modeling necessary to determine how
high NOX emissions could be while remaining consistent with
attainment and maintenance of the ozone standard. The projections that
could act as an implicit budget could thus be unnecessarily
constraining, and exceeding those projections may not have real air
quality consequences. Furthermore, commenters argue that if the
modeling that would determine a maximum NOX motor vehicle
emissions budget is not a necessary part of the attainment
demonstration, it should not be required solely for conformity
purposes.
Although EPA is retaining in the final rule the requirement for
consistency with NOX emissions budgets for all ozone areas with
control strategy SIPs, including areas that received NOX waivers,
EPA agrees that in some circumstances it is appropriate to interpret
the control strategy SIP as not establishing a NOX motor vehicle
emissions budget. EPA may conclude in such circumstances that modeling-
based sensitivity analyses included in the attainment or maintenance
demonstration are sufficient to indicate that motor vehicle NOX
emissions could grow without limit over the transportation planning
horizon because the area would still attain the ozone standard without
jeopardizing attainment in other areas. In such a case, EPA would agree
that the control strategy SIP does not establish a NOX motor
vehicle emissions budget, and the NOX budget test would not have
to be satisfied for transportation conformity purposes.
For example, EPA expects that it would be able to interpret the
attainment demonstration as not establishing a NOX motor vehicle
emissions budget if it included modeling demonstrating that additional
reductions of NOX would increase peak ozone concentrations. In
contrast, modeling that did not examine the effect of NOX
reductions would not be sufficient to show that the attainment
demonstration did not establish a NOX motor vehicle emissions
budget. Also, areas with a SIP requirement to control NOX
emissions in order for downwind nonattainment areas to attain the ozone
standard would have an established NOX budget, because of the need
to indicate the level of NOX reductions required.
In addition, it is important to note that areas that are in
nonattainment or maintenance for both PM10 and ozone may have a
NOX motor vehicle emissions budget established in the PM10
SIP, regardless of whether the area has a NOX waiver for ozone
purposes or the area's ozone attainment or maintenance SIP establishes
a NOX motor vehicle emissions budget.
EPA continues to believe that, in general, control strategy SIPs by
their nature establish motor vehicle emissions budgets, whether or not
these budgets are explicitly stated. Motor vehicle emissions budgets
are implicitly a feature of control strategy SIPs, and a statement in
the SIP that no motor vehicle emissions budget is established does not
necessarily relieve the requirement to demonstrate consistency with the
SIP's implicit budget. However, as described above, EPA believes that
there are special circumstances under which EPA would agree that the
attainment or maintenance SIP demonstrates that no motor vehicle
emissions budget is necessary, and the budget test is not required for
transportation conformity purposes.
EPA encourages areas that are developing SIPs to explicitly state
the motor vehicle emissions budget(s) for each relevant pollutant or
pollutant precursor. For SIPs that have already been submitted,
agencies should work through the interagency consultation process to
identify the motor vehicle emissions budget(s) that is (are) not
explicitly stated. EPA will not consider a submitted SIP adequate for
transportation conformity purposes unless it either includes explicit
motor vehicle emissions budgets or adequate information to establish
budgets, or EPA
[[Page 57184]]
has agreed that the SIP sufficiently demonstrates that a NOX motor
vehicle emissions budget is not necessary.
F. Additional Comments Not Addressed in the Proposal
Several commenters also raised concerns about aspects of the
transportation conformity rule which are not relevant to this action,
including the build/no-build test, non-federal projects, and adding
projects to the transportation plan and TIP. These comments do not
affect whether EPA should proceed with this final action, but EPA will
be considering these and other issues, such as issues related to rural
nonattainment areas, in the context of the third set of conformity rule
amendments.
EPA did not address in this final rule the issues contained in the
Environmental Defense Fund et al.'s Petition for Reconsideration
relating to the November 24, 1993, transportation conformity rule that
may still be outstanding. Many of the issues contained in this petition
were beyond the scope of this rulemaking. The third set of conformity
amendments will address several of these issues, and EPA intends to
formally respond to others at a later date.
IV. Administrative Requirements
A. Administrative Designation
Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact or entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866.
Therefore, this notice was not subject to OMB review under the
Executive Order 12866.
B. Reporting and Recordkeeping Requirements
This rule does not contain any information collection requirements
from EPA which require approval by OMB under the Paperwork Reduction
Act of 1980, 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
EPA has determined that these regulations will not have a
significant impact on a substantial number of small entities. This
regulation affects federal agencies and metropolitan planning
organizations, which by definition are designated only for metropolitan
areas with a population of at least 50,000. These organizations do not
constitute small entities.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
EPA has determined that to the extent this rule imposes any mandate
within the meaning of the Unfunded Mandates Act, this final action does
not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector. Therefore, EPA has not prepared a statement
with respect to budgetary impacts.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Intergovernmental relations, Ozone.
Dated: November 6, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR parts 51 and 93 are
amended as follows:
PARTS 51 AND 93 --[AMENDED]
1. The authority citation for parts 51 and 93 continues to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
2. The identical text of Secs. 51.392 and 93.101 is amended by
adding a definition in alphabetical order to read as follows:
Sec. . Definitions.
* * * * *
Protective finding means a determination by EPA that the control
strategy contained in a submitted control strategy implementation plan
revision would have been considered approvable with respect to
requirements for emissions reductions if all committed measures had
been submitted in enforceable form as required by Clean Air Act section
110(a)(2)(A).
* * * * *
3. The identical text of Secs. 51.394 and 93.102 is amended by
revising paragraph (b)(3)(i) and adding paragraph (d) to read as
follows:
Sec. . Applicability.
* * * * *
(b) * * *
(3) * * *
(i) Volatile organic compounds and nitrogen oxides in ozone areas;
* * * * *
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been in attainment for either ozone, CO, PM-10, or
NO2 since 1990 and are subsequently redesignated to nonattainment
for any of these pollutants, the provisions of this subpart shall not
apply for such pollutant for 12 months following the date of final
designation to nonattainment.
4. Section 51.396(a) is amended by adding a sentence after the
second sentence to read as follows:
[[Page 57185]]
Sec. 51.396 Implementation plan revision.
(a) * * * Further revisions to the implementation plan required by
amendments to this subpart must be submitted within 12 months of the
date of publication of such final amendments to this subpart. * * *
* * * * *
5. Section 51.420 is revised to read as follows:
Sec. 51.420 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval. This
criterion applies during all periods. It is satisfied if the current
transportation plan and TIP have been found to conform to the
applicable implementation plan by the MPO and DOT according to the
procedures of this subpart.
(a) Only one conforming transportation plan or TIP may exist in an
area at any time; conformity determinations of a previous
transportation plan or TIP expire once the current plan or TIP is found
to conform by DOT. The conformity determination on a transportation
plan or TIP will also lapse if conformity is not determined according
to the frequency requirements of Sec. 51.400.
(b) This criterion is not required to be satisfied at the time of
project approval for a TCM specifically included in the applicable
implementation plan, provided that all other relevant criteria of this
subpart are satisfied.
6. Section 93.114 is revised to read as follows:
Sec. 93.114 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval. This
criterion applies during all periods. It is satisfied if the current
transportation plan and TIP have been found to conform to the
applicable implementation plan by the MPO and DOT according to the
procedures of this subpart.
(a) Only one conforming transportation plan or TIP may exist in an
area at any time; conformity determinations of a previous
transportation plan or TIP expire once the current plan or TIP is found
to conform by DOT. The conformity determination on a transportation
plan or TIP will also lapse if conformity is not determined according
to the frequency requirements of Sec. 93.104.
(b) This criterion is not required to be satisfied at the time of
project approval for a TCM specifically included in the applicable
implementation plan, provided that all other relevant criteria of this
subpart are satisfied.
7. The identical text of Secs. 51.422 and 93.115 are amended by
adding a sentence to the end of paragraph (a) and by adding paragraph
(d) as follows:
Sec. . Criteria and procedures: Projects from a plan and TIP.
(a) * * * Special provisions for TCMs in an applicable
implementation plan are provided in paragraph (d) of this section.
* * * * *
(d) TCMs. This criterion is not required to be satisfied for TCMs
specifically included in an applicable implementation plan.
8. The identical text of Secs. 51.428 and 93.118 is amended by
revising paragraph (b)(1)(ii) to read as follows:
Sec. . Criteria and procedures: Motor vehicle emissions budget
(transportation plan).
* * * * *
(b) * * *
(1) * * *
(ii) NOX as an ozone precursor;
* * * * *
9. Section 51.448 is amended by removing paragraph (g),
redesignating paragraphs (h) and (i) as (g) and (h), and revising
paragraphs (a) through (d) and the newly designated paragraph (g) to
read as follows:
Sec. 51.448 Transition from the interim period to the control strategy
period.
(a) Control strategy implementation plan submissions. (1) The
transportation plan and TIP must be demonstrated to conform by 18
months from the date of the State's initial submission to EPA of each
control strategy implementation plan establishing a motor vehicle
emissions budget. If conformity is not determined by 18 months from the
date of submission of such control strategy implementation plan, the
conformity status of the transportation plan and TIP will lapse, and no
new project-level conformity determinations may be made, until the
transportation plan and TIP have been demonstrated to conform.
(2) For areas not yet in the control strategy period for a given
pollutant, conformity shall be demonstrated using the motor vehicle
emissions budget(s) in a submitted control strategy implementation plan
revision for that pollutant beginning 90 days after submission, unless
EPA declares such budget(s) inadequate for transportation conformity
purposes. The motor vehicle emissions budget(s) may be used to
determine conformity during the first 90 days after its submission if
EPA agrees that the budget(s) are adequate for conformity purposes.
(b) Disapprovals. (1) If EPA disapproves the submitted control
strategy implementation plan revision and so notifies the State, MPO,
and DOT, which initiates the sanction process under Clean Air Act
section 179 or 110(m), the conformity status of the transportation plan
and TIP shall lapse 120 days after EPA's disapproval, and no new
project-level conformity determinations may be made. No new
transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same Clean Air Act requirements is submitted and conformity to this
submission is determined.
(2) Notwithstanding paragraph (b)(1) of this section, if EPA
disapproves the submitted control strategy implementation plan revision
but makes a protective finding, the conformity status of the
transportation plan and TIP shall lapse on the date that highway
sanctions as a result of the disapproval are imposed on the
nonattainment area under section 179(b)(1) of the Clean Air Act. No new
transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same Clean Air Act requirements is submitted and conformity to this
submission is determined.
(c) Failure to submit and incompleteness. For areas where EPA
notifies the State, MPO, and DOT of the State's failure to submit or
submission of an incomplete control strategy implementation plan
revision, which initiates the sanction process under Clean Air Act
section 179 or 110(m), the conformity status of the transportation plan
and TIP shall lapse on the date that highway sanctions are imposed on
the nonattainment area for such failure under section 179(b)(1) of the
Clean Air Act, unless the failure has been remedied and acknowledged by
a letter from the EPA Regional Administrator.
(d) Federal implementation plans. When EPA promulgates a federal
implementation plan that contains motor vehicle emissions budget(s) as
a result of a State failure, the conformity lapse imposed by this
section because of that State failure is removed.
* * * * *
(g) Nonattainment areas which are not required to demonstrate
reasonable further progress and attainment. If an area listed in
Sec. 51.464 submits a control strategy implementation plan revision,
the requirements of paragraphs (a) and
[[Page 57186]]
(e) of this section apply. Because the areas listed in Sec. 51.464 are
not required to demonstrate reasonable further progress and attainment
the provisions of paragraphs (b) and (c) of this section do not apply
to these areas.
* * * * *
10. Section 93.128 is amended by removing paragraph (g),
redesignating paragraphs (h) and (i) as (g) and (h), and revising
paragraphs (a) through (d) and the newly designated paragraph (g) to
read as follows:
Sec. 93.128 Transition from the interim period to the control strategy
period.
(a) Control strategy implementation plan submissions. (1) The
transportation plan and TIP must be demonstrated to conform by 18
months from the date of the State's initial submission to EPA of each
control strategy implementation plan establishing a motor vehicle
emissions budget. If conformity is not determined by 18 months from the
date of submission of such control strategy implementation plan, the
conformity status of the transportation plan and TIP will lapse, and no
new project-level conformity determinations may be made, until the
transportation plan and TIP have been demonstrated to conform.
(2) For areas not yet in the control strategy period for a given
pollutant, conformity shall be demonstrated using the motor vehicle
emissions budget(s) in a submitted control strategy implementation plan
revision for that pollutant beginning 90 days after submission, unless
EPA declares such budget(s) inadequate for transportation conformity
purposes. The motor vehicle emissions budget(s) may be used to
determine conformity during the first 90 days after its submission if
EPA agrees that the budget(s) are adequate for conformity purposes.
(b) Disapprovals. (1) If EPA disapproves the submitted control
strategy implementation plan revision and so notifies the State, MPO,
and DOT, which initiates the sanction process under Clean Air Act
section 179 or 110(m), the conformity status of the transportation plan
and TIP shall lapse 120 days after EPA's disapproval, and no new
project-level conformity determinations may be made. No new
transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same Clean Air Act requirements is submitted and conformity to this
submission is determined.
(2) Notwithstanding paragraph (b)(1) of this section, if EPA
disapproves the submitted control strategy implementation plan revision
but makes a protective finding, the conformity status of the
transportation plan and TIP shall lapse on the date that highway
sanctions as a result of the disapproval are imposed on the
nonattainment area under section 179(b)(1) of the Clean Air Act. No new
transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same Clean Air Act requirements is submitted and conformity to this
submission is determined.
(c) Failure to submit and incompleteness. For areas where EPA
notifies the State, MPO, and DOT of the State's failure to submit or
submission of an incomplete control strategy implementation plan
revision, which initiates the sanction process under Clean Air Act
sections 179 or 110(m), the conformity status of the transportation
plan and TIP shall lapse on the date that highway sanctions are imposed
on the nonattainment area for such failure under section 179(b)(1) of
the Clean Air Act, unless the failure has been remedied and
acknowledged by a letter from the EPA Regional Administrator.
(d) Federal implementation plans. When EPA promulgates a federal
implementation plan that contains motor vehicle emissions budget(s) as
a result of a State failure, the conformity lapse imposed by this
section because of that State failure is removed.
* * * * *
(g) Nonattainment areas which are not required to demonstrate
reasonable further progress and attainment. If an area listed in
Sec. 93.136 submits a control strategy implementation plan revision,
the requirements of paragraphs (a) and (e) of this section apply.
Because the areas listed in Sec. 93.136 are not required to demonstrate
reasonable further progress and attainment the provisions of paragraphs
(b) and (c) of this section do not apply to these areas.
* * * * *
Secs. 51.452 and 93.130 [Amended]
11. The identical text of Secs. 51.452 and 93.130 is amended by
redesignating paragraph (b)(5) as paragraph (a)(6); and in paragraph
(c)(1) by revising the references, ``paragraph (a)'' to read
``paragraph (b)'' in two places.
[FR Doc. 95-27949 Filed 11-13-95; 8:45 am]
BILLING CODE 6560-50-P
