Transportation Conformity Rule Amendments: Authority for Transportation Conformity Nitrogen Oxides Waivers

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5284-6]

RIN 2060-AF95

Transportation Conformity Rule Amendments: Authority for

Transportation Conformity Nitrogen Oxides Waivers

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: In this document EPA amends the November 24, 1993, final

transportation conformity rule to change the statutory authority for

exempting certain areas from certain nitrogen oxides provisions of the

transportation conformity rule. This change is necessary to implement

the conformity rule in a legally correct manner and to allow EPA to

approve nitrogen oxides exemptions for certain areas.

This interim final rule is effective immediately upon publication.

However, EPA will also conduct full notice-and-comment rulemaking on

EPA's interpretations regarding implementation of the provisions

addressed in this interim final rule. A proposed rule that addresses

this issue (among other things) is published in the proposed rule

section of this Federal Register. Public comments will be addressed in

a subsequent final rule.

EFFECTIVE DATE: This interim final rule is effective on August 29,

1995. Comments on this action must be received by September 28, 1995.

ADDRESSES: Interested parties may submit written comments (in

duplicate, if possible) to: Air and Radiation Docket and Information

Center, U.S. Environmental Protection Agency, Attention: Docket No. A-

95-05, 401 M Street, S.W., Washington, DC 20460.

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: This interim final rule changes the

statutory authority for transportation conformity nitrogen oxides

(NOX) exemptions from Clean Air Act section 182(f) to section

182(b)(1), for areas subject to section 182(b)(1).

The provisions of this interim final rule shall apply immediately

upon publication. However, EPA will also conduct full notice-and-

comment rulemaking on EPA's interpretations regarding implementation of

these provisions. A proposed rule that discusses these interpretations

(among other things) is published in the proposed rule section of this

Federal Register, and the public comment on this proposal will last

until September 28, 1995. Public comments will be addressed in a

subsequent final rule.

This portion of the proposal is being published as an interim final

rule without benefit of a prior proposal and public comment period

because EPA finds that ``good cause'' exists under the Administrative

Procedures Act (``APA'') 5 U.S.C. 553(b)(B) for deferring those

procedures until after publishing the change as an interim final rule.

In changing the transportation conformity rule's reference from Clean

Air Act section 182(f) to section 182(b)(1) as the statutory authority

for waiving the requirement to control NOX emissions in areas

subject to section 182(b)(1), EPA finds that good cause exists for at

least two reasons. First, it is contrary to the public interest in

light of the clear statutory reference to section 182(b)(1) to continue

offering such relief under the erroneous statutory reference in the

transportation conformity rule. Section 176(c)(3)(A)(iii) of the Act's

transportation conformity provisions explicitly states that, for ozone

nonattainment areas to conform during the period before state

implementation plans are approved by EPA, such areas must demonstrate

that they are achieving reductions ``consistent with'' the NOX

(and volatile organic compounds) reduction requirements of section

182(b)(1). That section also provides for a waiver of the NOX

requirements if EPA determines that such reductions would not

contribute to attainment in a particular area. Thus, given the clear

intent of the statutory language, EPA believes it is unnecessary to

undertake in advance full public rulemaking procedures when it is

acting to correct an obvious error and, thereby, facilitate the lawful

and effective implementation of section 176(c) of the Clean Air Act.

Second, in taking this action, EPA is responding to repeated public

comments the Agency received in several individual NOX exemption

rulemaking actions. These comments pointed out that the correct

statutory authority for relieving interim-period transportation

conformity NOX requirements is section 182(b)(1). Formal written

requests have also been submitted to EPA requesting that this portion

of the transportation conformity rule be revised so as to be consistent

with the clear intent and language of the Act.

This interim final rule is taking effect immediately upon

publication because, as described above, EPA believes it is contrary to

public interest to continue acting in contravention of section

176(c)(3)(A)(iii)'s requirement to adhere to the procedures and

requirements in section 182(b)(1) when considering the conformity

status of transportation-related actions during the interim period. EPA

therefore finds good cause to forego the 30-day period between

publication and the effective date ordinarily applied under the APA, 5

U.S.C. 553(d), and make this interim final rule effective immediately

for the same reasons described above in justification of taking final

action without prior proposal.

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.

[[Page 44763]]

Dated: August 17, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, 40 CFR parts 51 and 93 are

proposed to be 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. 51.394 and 93.102 is amended by

revising paragraph (b)(3)(i) to read as follows:

Sec. . Applicability.

* * * * *

(b) * * *

(3) * * *

(i) Volatile organic compounds and nitrogen oxides in ozone areas

(unless the Administrator determines that additional reductions of

NOX would not contribute to attainment);

* * * * *

[FR Doc. 95-21404 Filed 8-28-95; 8:45 am]

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