Transportation Conformity Rule Amendments: Transition to the Control Strategy Period

Federal RegisterAug 7, 1995

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5273-8]

Transportation Conformity Rule Amendments: Transition to the

Control Strategy Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action permanently aligns the timing of certain

consequences of state air quality planning failures under EPA's

transportation conformity rule with the imposition of Clean Air Act

highway sanctions. For ozone nonattainment areas with an incomplete 15%

emissions-reduction state implementation plan with a protective

finding; incomplete ozone attainment/3% rate-of-progress plan; or

finding of failure to submit an ozone attainment/3% rate-of-progress

plan; and areas whose control strategy implementation plan for ozone,

carbon monoxide, particulate matter, or nitrogen dioxide is disapproved

with a protective finding, the conformity status of the transportation

plan and program will not lapse as a result of such failure until

highway sanctions for such failure are effective under other Clean Air

Act sections.

This action makes permanent the interim final rule issued on

February 8, 1995 (60 FR 7449), which was effective for only six months.

The lapse in conformity status which this action delays for some areas

would otherwise prevent approval of new highway and transit projects.

EFFECTIVE DATE: This final rule is effective August 8, 1995.

ADDRESSES: Materials relevant to this rulemaking are contained in

Docket No. A-95-02. The docket is located in room M-1500 Waterside Mall

(ground floor) at the Environmental Protection Agency, 401 M Street

S.W., 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: Kathryn Sargeant, Emission Control

Strategies Branch, Emission Planning and Strategies Division, U.S.

Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI

48105. (313) 668-4441.

SUPPLEMENTARY INFORMATION:

I. Background

On February 8, 1995, EPA issued an interim final rule entitled,

``Transportation Conformity Rule Amendments: Transition to the Control

Strategy Period,'' which was effective from February 8, 1995, until

August 8, 1995 (60 FR 7449). Because the interim final rule took effect

without prior notice and comment, EPA limited its effectiveness to a

six-month period, during which full notice and comment was to occur.

EPA also issued on February 8, 1995, a proposed rule to apply the

provisions of the interim final rule permanently (60 FR 7508). The

public comment period on the proposed rule lasted until March 10, 1995,

and a public hearing was held on February 22, 1995.

The February 8, 1995, interim final rule delayed the conformity

lapse imposed as a result of the following: an incomplete 15% rate-of-

progress SIP with a ``protective finding'' (described below); a failure

to submit or submission of an incomplete ozone attainment/3% rate-of-

progress SIP; and a disapproval of any control strategy SIP (i.e., 15%

rate-of-progress SIP, reasonable further progress SIP, or attainment

demonstration) with a protective finding.

The interim final rule did not affect the timing of the conformity

lapse which results from failure to determine conformity by the

deadlines established in 40 CFR 51.400 (93.104) and 51.448(a)

(93.128(a)), including deadlines to redetermine conformity with respect

to submitted SIPs, following promulgation of the November 1993 rule,

and following control strategy SIP approvals.

When the conformity status of the transportation plan and

transportation improvement program (TIP) lapses, no new project-level

conformity determinations may be made, and the only federal highway and

transit projects which may proceed are exempt or grandfathered

projects. Non-federal highway or transit projects may be adopted or

approved by recipients of funds designated under title 23 U.S.C. or the

Federal Transit Act only if they are not regionally significant.

EPA is delaying the conformity lapse resulting from the specific

SIP deficiencies listed above because EPA has recognized that in

practice, the twelve-month time period which the November 24, 1993,

transportation conformity rule allowed for areas to correct those SIP

deficiencies is too short to be reasonable for purposes of determining

when transportation plans and TIPs should lapse following SIP

development failures.

Today's 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). According to the Clean

Air Act, federally supported activities must conform to the

implementation plan's purpose of attaining and maintaining the national

ambient air quality standards.

II. Description of Final Rule

This final rule makes no substantive changes from the proposed

rule. This final rule permanently applies the provisions of the

February 8, 1995, interim final rule by eliminating the six-month limit

to the interim final rule's

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applicability. The regulatory language is somewhat modified from the

interim final rule's language as a result of the elimination of the

six-month limit on applicability of certain provisions.

Like the interim final rule and proposed rule, this final rule

affects areas with a 15% SIP which EPA found incomplete but noted in

the finding (according to 40 CFR 51.448(c)(1)(iii)) that the submittal

would have been considered complete with respect to requirements for

emission reductions if all committed measures had been submitted in

enforceable form as required by Clean Air Act section 110(a)(2)(A)

(i.e., incomplete with a ``protective finding''); ozone nonattainment

areas which fail to submit an ozone attainment SIP and/or a 3% rate-of-

progress SIP revision; ozone nonattainment areas with an incomplete

ozone attainment SIP and/or an incomplete 3% rate-of-progress SIP; and

areas with a disapproved control strategy SIP with a ``protective

finding'' as described in 40 CFR 51.448 (a)(3) and (d)(3). 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. If the

interim final rule expired on August 8, 1995, without today's final

rule, conformity would lapse immediately in approximately twenty areas

without complete 15% SIPs.

Like the interim final rule and proposed rule, this final rule does

not change the timing of conformity lapse for disapproval of any

control strategy SIP without a protective finding; for failure to

submit or submission of incomplete carbon monoxide (CO), particulate

matter (PM-10), or nitrogen dioxide (NO2) attainment

demonstrations; for failure to submit 15% SIPs; or for submission of

incomplete 15% SIPs without protective findings.

Like the interim final rule and the proposed rule, this final rule

does not affect the timing of the conformity lapse which results from

failure to determine conformity by the deadlines established in 40 CFR

51.400 (93.104) and 51.448(a) (93.128(a)), including deadlines to

redetermine conformity with respect to submitted SIPs, following

promulgation of the November 1993 rule, and following control strategy

SIP approvals.

This final rule deletes paragraphs (g)(1) and (g)(2) in 51.448(g)

(93.128(g)), because these provisions are no longer relevant given the

other changes of this final rule.

Today's final rule will be effective August 8, 1995. Today's final

rule will prevent the conformity status of certain plans and TIPs from

lapsing immediately upon expiration of the interim final rule on August

8, 1995, in approximately twenty ozone nonattainment areas currently

without complete 15% SIPs. This conformity lapse would be contrary to

the public interest because EPA 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 rule effective

August 8, 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 final rule effective August 8, 1995. In

addition, this rule 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).

III. Response to Comments

Fourteen comments on the proposed rule were submitted, including

comments from MPOs and state and local air and transportation agencies.

The majority of the comments supported the proposed rule. A complete

response to comments document is in the docket.

One commenter opposed the proposed rule for a number of reasons,

including the concern that the proposed rule would encourage further

delays in development and submission of control strategy SIPs. EPA

agrees that the submission of control strategy SIPs (and thus motor

vehicle emissions budgets) is of critical importance for conformity

purposes. However, EPA believes that Clean Air Act section 179(b)

sanctions continue to provide appropriate incentive to submit complete

and approvable control strategy SIPs.

The commenter also suggested that EPA consider options such as

retaining the lapsing provisions but allowing extensions in certain

circumstances, or retaining the conformity lapse but allowing a longer

grace period (such as 18 or 24 months) following an EPA finding of a

SIP failure. In fact, because Clean Air Act highway sanctions apply 24

months following an EPA finding of a SIP failure, today's amendments

aligning conformity lapse with Clean Air Act highway sanctions

implement the commenter's latter suggestion. Although the commenter was

also concerned that tying conformity to sanctions would make EPA more

hesitant to apply sanctions, section 179(b) sanctions are mandatory

within the prescribed periods following EPA's findings of State

failures, under the Clean Air Act and EPA's regulations.

Other commenters suggested that EPA should align all conformity

lapses due to SIP failures with Clean Air Act sanctions. Alignment for

more cases than originally proposed would require another rulemaking.

EPA currently intends to issue in the future a proposal to align with

Clean Air Act highway sanctions the conformity lapse which results from

failure to submit a 15% SIP; an incomplete 15% SIP without a protective

finding; and failure to submit or incomplete CO, PM-10, or NO2

attainment demonstrations. This change would also dramatically decrease

the complexity of the regulatory language in section 51.448 (93.128) of

the conformity rule, which was a concern expressed by some commenters.

EPA will be considering comments advocating alignment of the lapse

which follows SIP disapprovals without protective findings, but the

agency has not yet decided whether to propose amending that provision.

Some commenters suggested that every conformity lapse for any

reason, including failure to demonstrate conformity to a submitted SIP,

should be delayed. These suggestions are beyond the scope of the

proposed rule and would also require another proposed rule. Again, EPA

will be considering these comments in the context of future conformity

rule amendments.

Several commenters also raised concerns about aspects of the

conformity rule which are not relevant to this action, including

transportation control measures and non-federal projects. These

comments do not affect whether EPA should proceed with today's action,

but EPA will be considering them in the context of future conformity

rule amendments.

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

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the

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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; or

(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.

Pursuant to the terms of Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action.'' As

such, this action was submitted to OMB for review. Changes made in

response to OMB suggestions or recommendations will be documented in

the public record.

B. Reporting and Recordkeeping Requirements

This rule does not contain any information collection requirements

from EPA which require approval by the Office of Management and Budget

(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 today's regulations will not have a

significant impact on a substantial number of small entities. This

regulation affects moderate and above ozone nonattainment areas, which

are almost exclusively urban areas of substantial population, and

affects federal agencies and metropolitan planning organizations, which

by definition are designated only for metropolitan areas with a

population of at least 50,000.

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.

Because this action will delay conformity lapses that would

otherwise occur under existing regulations, 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: August 1, 1995.

Carol M. Browner,

Administrator.

40 CFR parts 51 and 93 are amended as follows:

PART 51--[AMENDED]

1. The authority citation for part 51 is amended to read as

follows:

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

PART 93---[AMENDED]

2. The authority citation for part 93 is amended to read as

follows:

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

Secs. 51.448 and 93.128 [Amended]

3. The identical texts of Secs. 51.448 and 93.128 are amended as

follows:

a. By redesignating paragraphs (b)(2) and (c)(2) as (b)(3) and

(c)(3);

b. By removing paragraphs (g)(1) and (g)(2) and redesignating

paragraph (g)(3) as (g)(1) and reserving paragraph (g)(2); and

c. By revising paragraphs (a)(3), (b)(1) introductory text, and

(d)(3), and adding new paragraphs (b)(2) and (c)(2).

The identical text of additions and revisions reads as follows:

Sec. ______. ____ Transition from the interim period to the control

strategy period.

(a) * * *

(3) Notwithstanding paragraph (a)(2) of this section, if EPA

disapproves the submitted control strategy implementation plan revision

but determines that the control strategy contained in the revision

would have been considered approvable with respect to requirements for

emission reductions if all committed measures had been submitted in

enforceable form as required by Clean Air Act section 110(a)(2)(A), 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,

unless another control strategy implementation plan revision is

submitted to EPA and found to be complete.

(b) Areas which have not submitted a control strategy

implementation plan revision.

(1) For CO, PM10 and NO2 areas whose Clean Air Act

deadline for submission of the control strategy implementation plan

revision is after November 24, 1993, and EPA has notified the State,

MPO, and DOT of the State's failure to submit a control strategy

implementation plan revision, which initiates the sanction process

under Clean Air Act sections 179 or 110(m):

(i) * * *

(ii) * * *

(2) For ozone nonattainment areas where EPA has notified the State,

MPO, and DOT of the State's failure to submit a control strategy

implementation plan revision required by Clean Air Act sections

182(c)(2)(A) and/or 182(c)(2)(B), failure to submit an attainment

demonstration for an intrastate moderate ozone nonattainment area that

chose to use the Urban Airshed Model for such demonstration, or failure

to submit an attainment demonstration for a multistate moderate ozone

nonattainment area, 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.

* * * * *

(2) In lieu of the provisions of paragraph (c)(1) of this section,

the conformity status of the transportation plan and TIP shall lapse on

the date that highway sanctions are imposed on the nonattainment area

under section

[[Page 40101]]

179(b)(1) of the Clean Air Act as a result of incompleteness, in ozone

nonattainment areas where EPA notifies the State, MPO, and DOT that the

following control strategy implementation plan revisions are

incomplete:

(i) The implementation plan revision due November 15, 1994, as

required by Clean Air Act sections 182(c)(2)(A), and/or 182(c)(2)(B);

(ii) The attainment demonstration required for moderate intrastate

ozone nonattainment areas which chose to use the Urban Airshed Model

for such demonstration and for multistate moderate ozone nonattainment

areas; or

(iii) The VOC reasonable further progress demonstration due

November 15, 1993, as required by Clean Air Act section 182(b)(1), if

EPA notes in its incompleteness finding as described in paragraph

(c)(1)(iii) of this section that the submittal would have been

considered complete with respect to requirements for emission

reductions if all committed measures had been submitted in enforceable

form as required by Clean Air Act section 110(a)(2)(A).

(iv) The consequences described in paragraph (c)(1) of this section

shall be nullified if such provisions have been applied as a result of

a failure described in paragraph (c)(2) of this section, and paragraph

(c)(2) of this section shall henceforth apply with respect to any such

failure.

* * * * *

(d) * * *

(3) Notwithstanding paragraph (d)(2) of this section, if EPA