Transportation Conformity Rule Amendments: Transition to the Control Strategy Period

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5149-8]

Transportation Conformity Rule Amendments: Transition to the

Control Strategy Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: This action aligns the timing of certain transportation

conformity consequences with the imposition of Clean Air Act highway

sanctions for a six-month period. 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 delays the lapse in conformity status, which would

otherwise prevent approval of new highway and transit projects, and

allows States more time to prevent the lapse by submitting complete

control strategy implementation plans. EPA is issuing this interim

final rule, effective for a six-month period, without prior proposal in

order to prevent previously unforeseeable delays in State ozone

implementation plan development from causing widespread conformity

lapsing. In a parallel action in this Federal Register, EPA is

requesting comment on this interim final rule and on similar but

permanent rule changes.

EFFECTIVE DATE: This interim final rule is effective on February 8,

1995 until 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

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: 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

A. Transportation Conformity Rule

The final 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,'' was published November

24, 1993 (58 FR 62188) and amended 40 CFR parts 51 and 93. The Notice

of Proposed Rulemaking was published on January 11, 1993 (58 FR 3768).

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

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.

The final transportation conformity rule requires that conformity

determinations use the motor vehicle emissions budget(s) in a submitted

``control strategy'' SIP (defined below), and the rule includes special

provisions to address failures in control strategy SIP development.

These failures include failure to submit a control strategy SIP,

submission of an incomplete control strategy SIP, or disapproval of a

control strategy SIP. Specifically, according to 40 CFR 51.448 (and 40

CFR 93.128), following these SIP development failures, no new or

amended transportation plans or transportation improvement programs

(TIPs) may be found to conform to the SIP after a certain grace period

(i.e., the existing transportation plan and TIP are ``frozen''), and

eventually, the conformity status of the existing transportation plan

and TIP lapses.

When the conformity status of the transportation plan and 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 [[Page 7450]] 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.

As described in the preamble to the final transportation conformity

rule (58 FR 62191-3), EPA developed these requirements in response to

public comments which claimed that the proposed interim period

conformity criteria (e.g., the ``build/no-build test'') did not ensure

emissions reductions consistent with Clean Air Act requirements for

reasonable further progress and attainment, and which emphasized the

importance of emissions budgets in determining conformity. EPA imposed

restrictions such as conformity lapsing where the State failed to

establish emission budgets in a timely fashion, because EPA believed

that in the prolonged absence of a control strategy SIP, preventing new

conformity determinations and postponing new commitments of funds would

prevent uncontrolled emissions increases while the State was

establishing its control strategies.

B. Control Strategy SIP Requirements

Control strategy SIPs include 15% rate-of-progress plans,

reasonable further progress plans, and attainment demonstrations.

Clean Air Act section 182(b)(1) required moderate and above ozone

nonattainment areas to submit a 15% volatile organic compound emission

reduction rate-of-progress plan by November 15, 1993. Moderate ozone

areas were also required by that section to submit an attainment

demonstration by this date if they were not using photochemical grid

modeling to develop the demonstration.

Serious and above ozone nonattainment areas (and moderate ozone

nonattainment areas using photochemical grid modeling under EPA's

interpretation of section 182(b)(1)) were required to submit an

attainment demonstration by November 15, 1994 under Clean Air Act

section 182(c)(2)(A). Clean Air Act section 182(c)(2)(B) also required

serious and above ozone nonattainment areas to submit by this date a

reasonable-further-progress (or rate-of-progress) plan for 3% annual

emission reductions until the attainment date.

Carbon monoxide (CO) nonattainment areas classified as moderate

with design value greater than 12.7 parts per million or serious were

required by Clean Air Act section 187(a)(7) to submit an attainment

demonstration by November 15, 1992.

Areas in nonattainment for particulate matter less than a nominal

10 microns in aerodynamic diameter (PM-10) were required to submit an

attainment demonstration at varying dates depending upon their date of

classification, but Clean Air Act section 189(a)(1)(B) required many

areas to submit the attainment demonstration by November 15, 1991.

Nitrogen dioxide (NO2) areas were required by Clean Air Act

section 191 to submit an attainment demonstration by May 15, 1992.

II. Description of Interim Final Rule

A. Incomplete 15% SIPs and Disapprovals With Protective Findings

This interim final rule delays the lapse in transportation plan/TIP

conformity until Clean Air Act section 179(b) highway sanctions are

effective, for 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''). EPA is

also similarly delaying the conformity lapse which results from EPA

disapproval of a control strategy SIP with a ``protective finding'' as

described in 40 CFR 51.448(a)(3) and (d)(3). Clean Air Act highway

sanctions will become effective in both types of areas two years

following the date of EPA's incompleteness determination or

disapproval, unless the State remedies the failure.

Under the November 1993 transportation conformity rule, the

conformity status of the transportation plan and TIP lapses in such

areas twelve months following the incompleteness determination or

disapproval, unless another SIP is submitted to EPA and found to be

complete. This interim final rule delays the transportation plan/TIP

conformity lapse. It also restores the conformity status of

transportation plans and TIPs for which twelve months have already

elapsed since EPA made the incompleteness determination or disapproval

with protective finding, provided conformity has not lapsed for other

reasons under the transportation conformity rule. A list of areas with

incomplete 15% SIPs with protective findings (and the dates of those

EPA findings) is in the docket.

EPA is delaying the transportation plan/TIP conformity lapse in

these areas because the agency now believes that a twelve-month period

to make these control strategy SIPs fully enforceable is a too

stringent definition of ``timely'' SIP development in this particular

context, given the lengthy legislative and administrative processes of

many States. Although EPA believed this time period was appropriate at

the time EPA promulgated the transportation conformity rule, EPA has

now seen that in practice the time was too short to be reasonable for

purposes of determining when transportation plans and TIPs should lapse

following SIP development failures.

EPA believes it is appropriate to allow States more time to

complete these SIPs before negative conformity consequences are

imposed, particularly because in these areas with incompleteness

findings or disapprovals with protective findings, the State has

developed motor vehicle emissions budget(s) which are part of an

overall strategy to achieve the required emission reductions and

therefore are appropriate for use in conformity determinations. In

these areas, lapsing is not necessary in the short term to prevent

uncontrolled motor vehicle emissions increases while the State

completes the SIP, because the motor vehicle emissions budget(s) are

already applying in conformity determinations as a constraint.

However, EPA continues to believe that a conformity lapse is

appropriate in the prolonged absence of a complete control strategy

SIP. In such cases, EPA can no longer remain confident that states will

be able to adopt and implement the rules necessary to support the SIP

emissions budget. EPA believes that the application of Clean Air Act

highway sanctions signifies that SIP development has not proceeded in a

timely fashion and, therefore, that the conformity process should

ensure that significant new transportation projects will not be

undertaken.

B. Ozone Attainment/3% Rate-of-Progress SIPs

For ozone nonattainment areas which fail to submit an attainment

SIP due November 15, 1994 (including moderate areas using photochemical

grid modeling) and/or a 3% rate-of-progress SIP revision (hereafter

called an ``attainment/3% rate-of-progress SIP''), this interim final

rule similarly delays the transportation plan/TIP conformity lapse

until Clean Air Act highway sanctions are effective. Clean Air Act

highway sanctions apply in these areas two years following the date of

EPA's finding of failure to submit, unless the State remedies the

failure. This rule also [[Page 7451]] eliminates the transportation

plan/TIP ``freeze'' in these areas.

Under the November 1993 transportation conformity rule, in ozone

nonattainment areas where EPA finds a failure to submit the attainment/

3% rate-of-progress SIP, no new or amended transportation plans or TIPs

could be adopted after March 15, 1995 (i.e., the existing

transportation plan/TIP would be ``frozen''). The conformity status of

the transportation plan and TIP would have lapsed November 15, 1995.

This interim final rule also delays the transportation plan/TIP

conformity lapse until the application of Clean Air Act highway

sanctions for ozone nonattainment areas with incomplete attainment/3%

rate-of-progress SIPs. This rule also eliminates the transportation

plan/TIP ``freeze'' for these areas.

Under the November 1993 transportation conformity rule, if EPA

found an area's ozone attainment/3% rate-of-progress SIP incomplete

without a protective finding, the transportation plan/TIP would have

``frozen'' 120 days following EPA's incompleteness finding, and the

conformity status of the transportation plan/TIP would have lapsed

November 15, 1995. For areas for which EPA made an incompleteness

determination with a protective finding, the conformity status of the

transportation plan/TIP would have lapsed twelve months from the date

of the incompleteness finding (no ``freeze'' would have occurred).

Under this interim final rule, in any ozone nonattainment area with

an incomplete attainment/3% rate-of-progress SIP, the conformity status

of the transportation plan/TIP will not lapse until Clean Air Act

section 179(b)(1) highway sanctions are effective as a result of the

incompleteness (provided the conformity status of the transportation

plan and TIP does not lapse for other reasons under the transportation

conformity rule). Consequently, there will be no distinction among

incompleteness determinations regarding protective findings.

EPA is delaying the transportation plan/TIP conformity lapse due to

failure to submit and incomplete ozone attainment/3% rate-of-progress

SIPs because unforeseeable delays in the development of these SIPs,

including delays beyond the control of state air quality planning

agencies due to the complexity of required modeling, have convinced the

agency that the grace periods in the November 1993 rule constitute a

too stringent definition of ``timely'' establishment of emissions

budgets in this particular context. Since states have been proceeding

towards SIP development and delays have not been within their control,

EPA now believes that the original grace period is unreasonable.

However, EPA continues to believe that conformity lapsing is

appropriate in the prolonged absence of a complete ozone attainment/3%

rate-of-progress SIP. EPA believes that the application of Clean Air

Act highway sanctions signifies that SIP development has not proceeded

in a timely fashion and, therefore, that the conformity process should

ensure that significant new transportation projects will not be

undertaken.

C. Other Control Strategy SIPs

This interim final rule does not change the consequences in 40 CFR

51.448 for disapproval of any control strategy SIP without a protective

finding; for failure to submit or submission of incomplete CO, PM-10,

or NO2 attainment demonstrations; or for failure to submit or

submission of incomplete 15% SIPs without protective findings. EPA

believes that transportation plan/TIP ``freeze'' and conformity lapse

is appropriate as currently required because in these cases adequate

emissions budgets have not been established in a timely fashion.

III. Rulemaking Process

A. Rulemaking Procedures

This rule 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 for deferring those procedures until after

publishing the changes as an interim final rule. Good cause exists for

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

transportation conformity rule to halt implementation of transportation

plans, programs, and projects when for the reasons described above EPA

believes that such delay is not necessary at this time for the lawful

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

Furthermore, the conformity consequences for ozone areas which this

interim final rule delays would have occurred before full notice-and-

comment rulemaking could have been completed. EPA could not have

initiated full notice-and-comment rulemaking far enough in advance to

effectively delay the conformity consequences at issue because it was

first necessary to evaluate the States' progress in control strategy

SIP development and submission, and to determine whether the existing

grace periods were appropriate. In addition, it is possible that a

disapproval with a protective finding could have occurred during the

full notice-and-comment rulemaking process. Thus, it was impracticable

to provide notice-and-comment procedures prior to the time by which EPA

needs to implement these changes to avoid the conformity consequences

that would otherwise result under the existing rule.

Although prior notice-and-comment rulemaking was impracticable, a

draft of this rule was distributed to representatives of affected State

and local transportation and air quality planning agencies and the

public, and a conference call was held with stakeholders such as the

State and Territorial Air Pollution Program Administrators/Association

of Local Air Pollution Control Officials, the American Association of

State Highway and Transportation Officials, the American Public Transit

Association, the National Association of Regional Councils, the

American Association of Metropolitan Planning Organizations, the

National Governors' Association, the Surface Transportation Policy

Project, the Environmental Defense Fund, the Natural Resources Defense

Council, the Sierra Club Legal Defense Fund, the Highway Users

Federation, and the American Road and Transportation Builders

Association to solicit input on the interim final rule prior to

promulgation.

In addition, the Secretary of Transportation reviewed and concurred

with this interim final rule.

This interim final rule is taking effect immediately upon

publication because, as described above, conformity lapsing which is

contrary to the public interest would otherwise be occurring during the

30-day period between publication and the effective date ordinarily

provided under the Administrative Procedures Act (APA), 5 U.S.C.

553(d). EPA finds good cause to make this interim final rule effective

immediately for the same reasons described above in justification of

taking final action without prior proposal. 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).

The provisions of this interim final rule shall apply only for six

months, during which time EPA will conduct full notice-and-comment

rulemaking on these provisions and whether to make these provisions

permanent. A proposed rule is published in the proposed rule section of

this Federal Register, and the public comment period on this proposal

will last until March 10, 1995. Public [[Page 7452]] comments will be

addressed in a subsequent final rule, which will be promulgated before

the six-month limit on the applicability of this interim final rule

expires.

B. Future Amendments to the Transportation Conformity Rule

EPA intends to make additional limited amendments to the

transportation conformity rule. EPA intends to clarify certain

ambiguous language in 40 CFR 51.448 and 93.128 to ensure implementation

consistent with the intent of EPA and the Department of Transportation

(DOT), as expressed in guidance memoranda issued since November 1993.

These changes are necessary to have legal certainty that the amendments

promulgated today will continue to have their intended effect.

In addition, EPA intends to amend the transportation conformity

rule in order to allow transportation control measures which are in an

approved SIP and have been included in a conforming transportation plan

and TIP to proceed even if the conformity status of the current

transportation plan and TIP has lapsed.

EPA is not issuing these amendments in this interim final rule

because prior notice-and-comment rulemaking is not impracticable in

these cases. EPA intends to propose these amendments in a Notice of

Proposed Rulemaking within the next several months, and representatives

from the organizations listed above will be given an opportunity to

comment on a draft NPRM this month.

Since publication of the transportation conformity rule in November

1993, EPA, DOT, and state and local air and transportation officials

have had experience implementing the criteria and procedures in the

rule. It is that mutual experience which leads to the amendments which

EPA will be proposing today and in the very near future. In each case,

the amendments are needed to clarify ambiguities, correct errors, or

make the conformity process more logical and feasible.

There are many other issues which were debated in the original

rulemaking, some of which are the subject of litigation at this time.

EPA does not intend its issuance of back-to-back rulemakings to imply a

willingness to open the conformity rule to amendments which suit one or

the other petitioners' purpose. Both EPA and DOT, of course, are very

willing and eager to assist transportation and air quality planners in

complying with the rule and the statutory intent.

IV. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

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

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof;

(4) Raise novel 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 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.

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: January 31, 1995.

Carol M. Browner,

Administrator.

40 CFR parts 51 and 93 are amended as follows:

PARTS 51 AND 93--[AMENDED]

1. The authority citation for part 51 continues to read as follows:

Authority: 42 U.S.C. 7401(a)(2), 7475(e), 7502 (a) and (b),

7503, 7601(a)(1) and 7602.

2. The authority citation for part 93 continues to read as follows:

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

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. In the newly redeisgnated paragraph (c)(3)(iii) by revising the

reference ``paragraphs (c)(2)(i) and (ii)'' to read ``paragraphs

(c)(3)(i) and (ii); and

c. By adding new paragraphs (a)(4), (b)(2), (c)(2), and (d)(4).

The identical text of additions reads as follows:

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

strategy period.

(a) * * *

(4) Until August 8, 1995, for areas otherwise subject to paragraph

(a)(3) of this section, the conformity lapse imposed by the final

sentence of paragraph (a)(3) of this section shall not apply. 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 [[Page 7453]] plan

revision is submitted to EPA and found to be complete.

(b) * * *

(2) Until August 8, 1995, 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 following shall apply in lieu of

the provisions of paragraph (b)(1) of this section:

(i) 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; and

(ii) The consequences described in paragraph (b)(1) of this section

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

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

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

failure.

* * * * *

(c) * * *

(2) Until August 8, 1995, for the ozone nonattainment areas

described in paragraph (c)(2)(i) of this section, the following shall

apply in lieu of the provisions of paragraph (c)(1) of this section:

(i) 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 179(b)(1) of the Clean Air Act for the

failures described below, unless the failure has been remedied and

acknowledged by a letter from the EPA Regional Administrator, in ozone

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

of the following control strategy implementation plan revisions are

incomplete:

(A) 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);

(B) 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

(C) 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); and

(ii) 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)(i) of this section, and

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

any such failure.

* * * * *

(d) * * *

(4) Until August 8, 1995, for areas otherwise subject to paragraph

(d)(3) of this section, the conformity lapse imposed by the final

sentence of paragraph (d)(3) of this section shall not apply. 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.

* * * * *

[FR Doc. 95-3003 Filed 2-7-95; 8:45 am]

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