Transportation Conformity Rule Amendments: Miscellaneous Revisions

Federal RegisterNov 14, 1995

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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.

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