Transportation Conformity Amendment: Deletion of Grace Period

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[FRL-6481-9]

RIN 2060-AI76

Transportation Conformity Amendment: Deletion of Grace Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to delete a provision of the transportation

conformity rule that was overturned by the U.S. Court of Appeals for

the District of Columbia Circuit (Sierra Club v. EPA, et al., 129 F.3d

137 (D.C. Cir. 1997)). In 1995, we amended the conformity rule so that

new nonattainment areas would have a one-year grace period before

transportation conformity began applying. In 1997, the court overturned

this grace period. This action formally deletes the provision from the

transportation conformity rule in compliance with the court ruling.

In addition, we discuss in this document some issues that were

raised in a Petition for Reconsideration of the original transportation

conformity rule (finalized November 24, 1993). We are not proposing any

changes to the conformity rule in response to these issues.

We are required by a court settlement to finalize rulemaking on

these issues by December 31, 1999. We agreed to this settlement in 1998

in response to litigation by the Environmental Defense Fund.

Transportation conformity is a Clean Air Act requirement for

transportation plans, programs, and projects to conform to state air

quality plans. Conformity to a state air quality plan means that

transportation activities will not produce new air quality violations,

worsen existing violations, or delay timely attainment of the national

air quality standards.

Our transportation conformity rule establishes the criteria and

procedures for determining whether or not transportation activities

conform to the state air quality plan.

DATES: Written comments on this proposal must be submitted on or before

December 30, 1999.

ADDRESSES: Interested parties may submit written comments in response

to this rule (in duplicate, if possible) to: Air and Radiation Docket

and Information Center, U.S. Environmental Protection Agency,

Attention: Docket No. A-99-35, 401 M Street, SW., Washington, DC 20460.

(Those desiring notification of receipt of comments must include a

self-addressed, stamped postcard).

Materials relevant to this rulemaking are in Public Docket A-99-35

at the above EPA address in room M-1500 Waterside Mall (ground floor).

You may look at them from 8:00 a.m. to 5:30 p.m. on weekdays, except

holidays. You may have to pay a reasonable fee for copying docket

material.

The notice of proposed rulemaking is also available electronically

from our web site. See SUPPLEMENTARY INFORMATION for information on

accessing and downloading files.

FOR FURTHER INFORMATION CONTACT: Laura Voss, Transportation and Market

Incentives Group, Regional and State Programs Division, U.S.

Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI

48105, [email protected]. (734) 214-4858.

SUPPLEMENTARY INFORMATION: You can access and download files on your

first call using a personal computer according to the following

information:

Internet Web Sites

http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired

date or use Search feature)

OR

http://www.epa.gov/OMSWWW/ (look in What's New or under the

Conformity file area)

A version should be available today on any of the above-listed sites.

Please note that you may see format changes due to differences in

software.

Regulated Entities

Entities potentially regulated by the conformity rule are those

which adopt, approve, or fund transportation plans, programs, or

projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories

and entities include:

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Examples of regulated

Category entities

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Local government.......................... Local transportation and air

quality agencies.

State government.......................... State transportation and air

quality agencies.

Federal government........................ Department of Transportation

(Federal Highway

Administration and Federal

Transit Administration).

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be affected by this

rule. This table lists the types of entities that EPA is now aware

could potentially be regulated by the conformity rule. Other types of

entities not listed in the table could also be regulated. To determine

whether your organization is regulated by this action, you should

carefully examine the applicability requirements in Sec. 93.102 of the

conformity rule. If you have questions regarding the applicability of

this action to a particular entity, consult the person listed in the

preceding FOR FURTHER INFORMATION CONTACT section.

The contents of this preamble are listed in the following outline:

I. Background

II. How Soon Does Conformity Apply to a New Nonattainment Area?

III. Issues From Petition for Reconsideration

A. Fiscal Constraint

B. Horizon Years for Hot-Spot Analyses

C. Assumptions Regarding Regional Distribution of Emissions

D. Credit for Delayed TCMs

IV. How Would this Action Affect Conformity SIPs?

V. Administrative Requirements

I. Background

In 1998, we entered into a settlement with the Environmental

Defense Fund (EDF) in response to litigation. We agreed to finalize

rulemaking by December 31, 1999, to repeal the grace period in 40 CFR

93.102(d) and respond to four issues identified in EDF's May 1994

Petition for Reconsideration of the original conformity rule.

Section 93.102(d) and the four issues from the petition for

reconsideration are described below.

The original conformity rule was finalized on November 24, 1993 (58

FR 62188). We subsequently amended the rule on August 7, 1995 (60 FR

40098), November 14, 1995 (60 FR 57179), and August 15, 1997 (62 FR

43780).

[[Page 66833]]

II. How Soon Does Conformity Apply to a New Nonattainment Area?

According to a November 4, 1997, court decision, conformity must

apply as soon as we designate an area nonattainment. As a result, we

are proposing to delete Sec. 93.102(d) of the conformity rule. This

section allowed newly designated nonattainment areas a one-year grace

period before conformity starts applying.

We included this provision in our November 14, 1995, conformity

amendments (60 FR 57179). However, the Sierra Club challenged it and

the court overturned it.

Therefore, as soon as we designate your area as nonattainment, you

must have a conforming transportation plan and transportation

improvement program (TIP) in order to approve transportation projects.

This plan and TIP must conform with respect to all pollutants for which

the area is designated nonattainment. You may have to delay approving

projects until this is done.

Since designation is done through notice-and-comment rulemaking,

you will be aware of pending designations at the time of proposal and

will have the time until the final designation is effective to develop

a conforming plan and TIP.

III. Issues From Petition for Reconsideration

On May 26, 1994, the Environmental Defense Fund, the Natural

Resources Defense Council, and the Sierra Club Legal Defense Fund

submitted to EPA a Petition for Reconsideration of the November 1993

conformity rule. We have already responded to most of the concerns

raised in this petition through previous conformity amendments.

However, there are four outstanding issues which we agreed to

reconsider and respond to through this rulemaking. As explained below,

we have now reconsidered these issues. However, we are not proposing

any changes to the existing conformity rule as a result of our

reconsideration.

The full Petition for Reconsideration is in the docket for this

proposal (see ADDRESSES).

A. Fiscal Constraint

1. What Is the Issue?

As described in issue 6 of the Petition for Reconsideration, the

petitioners believe that we should have adopted our own regulatory

language requiring transportation plans and TIPs to be fiscally

constrained, rather than referencing the Department of Transportation's

(DOT's) metropolitan planning regulations. These DOT regulations

require fiscally constrained transportation plans and TIPs; that is,

that the proposed projects in plans and TIPs must be consistent with

already available or projected sources of revenue.

The petitioners are concerned that DOT could unilaterally modify

its regulations. The petitioners believe that by referencing DOT's

planning regulations, we have unlawfully delegated our rulemaking

authority to DOT.

In addition, the petitioners object that DOT's metropolitan

planning regulations do not properly implement the Intermodal Surface

Transportation Efficiency Act's (ISTEA's) funding requirements for

TIPs. ISTEA has since been reauthorized as the Transportation Equity

Act for the 21st Century, or TEA-21.

2. What Is EPA's Response?

We believe that it is appropriate to refer to DOT's regulations on

fiscal constraint for several reasons. First, the Clean Air Act does

not direct us to issue regulations regarding fiscal constraint.

Congress has given DOT the authority to create the regulations that

implement ISTEA and TEA-21. Second, it would not be practical for our

fiscal constraint requirements to be different from DOT's rules; in

order to be effectively implemented and enforced, they need to be

exactly the same.

Third, the conformity rule as a whole is based on DOT's

transportation planning process as it is outlined in DOT's metropolitan

planning regulations, including the rules for developing plans and

TIPs. Although these planning regulations provide a foundation for the

conformity rule, it is not necessary or appropriate for us to use the

conformity rule to issue our own interpretation of ISTEA's planning

requirements. Our reliance on DOT's fiscal constraint requirements is

an illustration of this general principle. Therefore, EPA believes it

is appropriate to defer to DOT's interpretation of the requirements for

fiscal constraint as adopted in DOT's planning regulations.

Finally, we do not share the petitioners' concern that DOT will

unilaterally change its regulations. EPA and DOT are federal partners

in transportation and air quality planning. There are mechanisms to

ensure federal coordination, and we are involved in DOT's drafting of

the metropolitan planning regulations. Further, petitioners will have

an opportunity to comment directly on any changes DOT may propose to

their regulation on fiscal constraint through DOT's regulatory process.

B. Horizon Years for Hot-Spot Analyses

1. What Is the Issue?

In issue 9B of the Petition for Reconsideration, the petitioners

state that we should require hot-spot analyses to examine the 20-year

timeframe of the transportation plan.

The existing transportation conformity rule does not specify the

horizon for hot-spot analyses.

2. What Are the Conformity Rule's Requirements About Hot Spots?

The rule requires carbon monoxide (CO) and particulate matter (PM-

10) areas to demonstrate that transportation projects will not cause or

contribute to new hot spots or increase the frequency or severity of

existing hot spots. In some cases, CO nonattainment areas must

demonstrate that they reduce localized CO violations. The conformity

rule requires these demonstrations to be based on modeling procedures

and assumptions that are decided through interagency consultation.

At the present time, quantitative PM-10 hot-spot analysis is not

required. According to Sec. 93.123(b)(4) of the conformity rule,

quantitative PM-10 hot-spot analysis is not required until EPA releases

modeling guidance on this subject. However, projects' impact on

localized PM-10 violations must be qualitatively considered.

3. What Is EPA's Response?

In most areas, hot-spot analyses are done for the year of project

completion. Areas decide whether they should examine other analysis

years in the future. For example, some areas analyze the last year of

the transportation plan (i.e., the twentieth year) or the tenth year

after the project's date of completion.

We do not believe it is necessary to specify that hot-spot analyses

must model the twentieth year of the transportation plan in all cases.

We allow a considerable amount of flexibility for areas to decide

through the interagency consultation process how to demonstrate that

hot spots are not caused or worsened in any area. There is even an

opportunity for qualitative demonstrations.

Because current emissions models show that CO emissions per vehicle

are decreasing over time, it may be most conservative to analyze a year

in the nearer term, rather than a year that is 20 years distant. Thus,

it would not be appropriate for us to mandate that all hot-spot

analyses must examine the twentieth year. Instead, we believe the

horizon year of the hot-spot analysis should be decided through

interagency

[[Page 66834]]

consultation, as appropriate to the individual area, on a case-by-case

basis.

C. Assumptions Regarding Regional Distribution of Emissions

1. What Is the Issue?

As described in issue 12 of the Petition for Reconsideration, the

petitioners believe that Metropolitan Planning Oganizations (MPOs)

should be required to demonstrate that regional land use policies and

the proposed transportation plan will achieve the same spatial

distribution of motor vehicle emissions as was used in the state

implementation plan (SIP) to demonstrate attainment.

We believe that the petitioners are in effect requesting that we

should always require SIPs to establish subarea budgets, and that we

should then require MPOs and DOT to show conformity to these subarea

budgets. The petitioners request that we eliminate Sec. 93.124(d) of

the conformity rule, which states that when the SIP includes emissions

estimates by subarea, these are not considered to be budgets for

conformity purposes unless the SIP explicitly states that intent.

2. What Is EPA's Response?

We believe that the conformity rule's provisions should be

retained. The Clean Air Act does not require subarea budgets. We have

always interpreted the Clean Air Act to allow for a single budget for a

nonattainment area for a given criteria pollutant or precursor,

although states have the option to disaggregate the budget at their

discretion (see our General Preamble for the Implementation of Title I

of the Clean Air Act Amendments of 1990, at 57 FR 13448, April 16,

1992).

If we were to compel states to include subarea budgets in their

SIPs, it is not clear what level of disaggregation would be

appropriate. Creating budgets for each grid cell used in the

photochemical modeling would be impractical, because each grid cell is

small. Grid cells can be as small as one square kilometer. The

transportation plan and TIP would have to be apportioned into subareas,

and the transportation model would have to be altered so it could

produce estimates for each separate subarea.

We believe the costs of this requirement would generally outweigh

the benefits. Where spatial distribution of emissions is very important

to the attainment of the standards, states should specify subarea

budgets in their SIPs as necessary to demonstrate attainment, according

to the degree of disaggregation they deem appropriate. Where such

subarea budgets are identified, all plans and TIPs would have to show

conformity to each subarea budget. On the other hand, if subarea

budgets are not necessary for attainment demonstration purposes, EPA

believes that the conformity rule need not require them.

D. Credit for Delayed TCMs

1. What Is the Issue?

As described in issue 15 of the Petition for Reconsideration, the

petitioners believe that where a transportation control measure (TCM)

has been delayed beyond the scheduled implementation date(s) in the

SIP, an area's conformity determination should not be allowed to take

emissions reduction credit for the TCM until after the TCM has actually

been brought into service. This would be more stringent than the

current conformity rule, which prohibits emission reduction credit only

until ``such time as implementation has been assured'' (see

Sec. 93.122(a)(2)).

2. What Is EPA's Response?

We believe that in general, it is appropriate for areas to take

credit for measures even before they have been implemented, provided

that there are good reasons to believe that the measures will be

implemented on the anticipated schedule. The main purpose of conformity

is to prospectively analyze the impacts of future transportation

activities, whether their impacts are positive or negative.

The conformity rule has a number of provisions to ensure that areas

analyze only those projects that are reasonably expected to occur. For

example, we do not allow areas to take credit for TCMs on their

original implementation schedule when they have already been delayed.

We do not allow areas to take credit for regulatory measures until they

have been adopted or committed to in a SIP.

However, the petitioners' suggestion would not allow for any

prospective credit for any TCM that had been delayed at any point in

its life. Although the petitioners' suggestion could perhaps provide an

incentive to avoid TCM delays, we believe that the requirements for

timely implementation of TCMs already serve that purpose.

We believe that the petitioners' suggestion would be punitive in

nature and is not necessary to fulfill the requirements of Clean Air

Act section 176(c). We do not see any reason to forbid areas to take

credit for a TCM if all obstacles have been overcome and its

implementation is assured, even if the project is not on its original

implementation schedule.

Once implementation has been assured, emissions analyses could take

credit for the TCM in the analysis years during which the TCM would

actually be in service (under the revised schedule). Obviously, an area

would not be allowed to take credit for the TCM according to its

original schedule, unless the area could demonstrate how it was making

up for the past delays.

The petitioners do point out that we have not defined what we mean

by the phrase, ``such time as implementation has been assured.''

Although the interpretation of this phrase will vary from case to case,

assurance of implementation would require at least the following: (a)

Past obstacles to implementation of the TCM have been overcome; (b)

state and local agencies are giving maximum priority to approval or

funding of TCMs over other projects within their control; (c) funding

for the TCM is identified and reasonably expected to be available; and

(d) the legal or regulatory authority necessary to implement the TCM

has been secured or appropriate commitments are in place.

Section 93.113 of the conformity rule requires that if TCMs in an

approved SIP are behind schedule, the area must demonstrate that past

obstacles to implementation of the TCM have been overcome and that the

TCM is receiving maximum priority. This demonstration must be based on

consultation among the federal, state, and local air and transportation

agencies.

The preamble to the 1993 conformity rule (58 FR 62197, November 24,

1993) provides more explanation of these points, including guidance on

what is considered ``maximum priority.''

We take this opportunity to also address some other questions that

have arisen about timely TCM implementation. First, what does it mean

for a TCM or other measure in the SIP to be ``delayed beyond the

scheduled date(s)'' We consider a measure ``delayed'' if the current

schedule for its implementation (for example, as described in the TIP)

indicates that the upcoming scheduled dates in the SIP will be missed.

In other words, a measure can be considered delayed even before the

implementation date is actually missed. If current projections indicate

the project will miss scheduled implementation dates, it is considered

delayed.

In addition, we would like to clarify that once a TCM has been

implemented, this implementation must continue permanently unless the

approved SIP specifically stipulates that

[[Page 66835]]

implementation will cease at a specific time.

IV. How Would this Action Affect Conformity SIPs?

Clean Air Act section 176(c)(4)(C) requires states to submit

revisions to their SIPs in order to include the criteria and procedures

for determining conformity.

If we approved your area's conformity SIP and it includes a

provision for a one-year grace period (Sec. 93.102(d)), that provision

cannot be implemented. This has been the case ever since the November

4, 1997, court decision, which found such provisions to be inconsistent

with the Clean Air Act.

Future conformity SIP submissions may not include Sec. 93.102(d).

If your area has submitted a conformity SIP to us that contains this

provision (and we have not yet approved the conformity SIP), we are not

able to approve such a provision as part of the SIP.

V. 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 of entitlements, grants,

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

thereof;

(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.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

B. Paperwork Reduction Act

This proposal does not impose any new information collection

requirements from EPA which require approval by OMB under the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501 et seq. An Agency may not conduct

or sponsor, and a person is not required to respond to a collection of

information unless it displays a currently valid OMB control number.

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any previously applicable instructions and requirements;

train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information;

and transmit or otherwise disclose the information.

C. Regulatory Flexibility Analysis

The Regulatory Flexibility Act, as amended by the Small Business

Regulatory Enforcement Fairness Act of 1996, requires the agency to

conduct a regulatory flexibility analysis of any significant impact a

proposed rule will have on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

organizations and small government jurisdictions.

EPA has determined that today's 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. The Regulatory Flexibility Act defines

``small governmental jurisdiction'' as the government of a city,

county, town, school district or special district with a population of

less than 50,000.

Therefore, as required under section 605 of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., I certify that this rule will

not have a significant economic impact on a substantial number of small

entities.

D. Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

EPA has determined that this rule does not contain a Federal

mandate that may result in expenditures of $100 million or more for

State, local, and tribal governments, in the aggregate, or the private

sector in any one year. Furthermore, this proposal simply formalizes

what the court has already decided as a legal matter, and which is

already being implemented in practice.

This rule affects only those areas that are newly designated as

nonattainment, and it simply applies conformity one year earlier than

our previous rule had required. Therefore, this rule could require a

limited number of areas to perform perhaps one additional

transportation plan/TIP conformity determination each.

A 1992 DOT survey of metropolitan planning organizations (MPOs)

found that most MPOs spend less than $50,000 per transportation plan/

TIP conformity determination. The largest MPOs (serving a population

over one million) spent up to $250,000. Thus, even if EPA were to

designate 200 areas as nonattainment in one year and each one

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incurred the maximum costs, the expenditures would not exceed $100

million.

Thus, today's rule is not subject to the requirements of sections

202 and 205 of the UMRA.

E. NTTAA

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15

U.S.C. 272 note) directs EPA to use voluntary consensus standards in

its regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA directs EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards.

Therefore, EPA is not considering the use of any voluntary consensus

standards.

F. Executive Order 13045

Executive Order 13045: ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies

to any rule that: (1) is determined to be ``economically significant''

as defined under Executive Order 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those

regulatory actions that are based on health or safety risks, such that

the analysis required under section 5-501 of the Order has the

potential to influence the regulation. This proposed rule is not

subject to Executive Order 13045 because it is not economically

significant within the meaning of Executive Order 12866 and it does not

establish an environmental standard intended to mitigate health or

safety risks.

G. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

The Clean Air Act requires conformity to apply in nonattainment and

maintenance areas, and the U.S. Court of Appeals for the District of

Columbia Circuit has determined that the Clean Air Act requires

conformity to apply immediately upon nonattainment designation. As a

result, this regulation is required by statute. Accordingly, the

requirements of section 1(a) of Executive Order 12875 do not apply to

this rule.

H. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

The Clean Air Act requires conformity to apply in nonattainment and

maintenance areas, and the U.S. Court of Appeals for the District of

Columbia Circuit has determined that the Clean Air Act requires

conformity to apply immediately upon nonattainment designation. As a

result, this regulation is required by statute. Furthermore, today's

rule would not significantly or uniquely affect the communities of

Indian tribal governments. Accordingly, the requirements of section

3(b) of Executive Order 13084 do not apply to this rule.

I. Executive Orders on Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August

10, 1999), requires EPA to develop an accountable process to ensure

``meaningful and timely input by State and local officials in the

development of regulatory policies that have federalism implications.''

``Policies that have federalism implications'' is defined in the

Executive Order to include regulations that have ``substantial direct

effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government.'' Under

Executive Order 13132, EPA may not issue a regulation that has

federalism implications, that imposes substantial direct compliance

costs, and that is not required by statute, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by State and local governments, or EPA consults with

State and local officials early in the process of developing the

proposed regulation. EPA also may not issue a regulation that has

federalism implications and that preempts State law unless the Agency

consults with State and local officials early in the process of

developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA

to provide to the Office Management and Budget (OMB), in a separately

identified section of the preamble to the rule, a federalism summary

impact statement (FSIS). The FSIS must include a description of the

extent of EPA's Prior consultation with State and local officials, a

summary of the nature of their concerns and the Agency's position

supporting the need to issue the regulation, and a statement of the

extent to which the concerns of State and local officials have been

met. Also, when EPA transmits a draft final rule

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with federalism implications to OMB for review pursuant to Executive

Order 12866, EPA must include a certification form the Agency's

Federalism Official stating that EPA has met the requirements of

Executive Order 13132 in a meaningful and timely manner.

This proposed rule will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 13132.

The Clean Air Act requires conformity to apply in nonattainment and

maintenance areas, and the U.S. Court of Appeals for the District of

Columbia Circuit has determined that the Clean Air Act requires

conformity to apply immediately upon nonattainment designation. As a

result, this rule is codifying in regulation the statutory

interpretation by the court that is currently in effect. Consequently,

this rule itself will not have substantial impact on States. Thus, the

requirements of section 6 of the Executive Order do not apply to this

rule.

List of Subjects in 40 CFR Part 93

Environmental protection, Administrative practice and procedure,

Air pollution control, Carbon monoxide, Intergovernmental relations,

Nitrogen Dioxide, Ozone, Particulate matter, Transportation, Volatile

organic compounds.

Dated: November 22, 1999.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, 40 CFR part 93 is proposed

to be amended as follows:

PART 93--[AMENDED]

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

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

Sec. 93.102 [Amended]

2. In Sec. 93.102, paragraph (d) is removed.

[FR Doc. 99-30903 Filed 11-29-99; 8:45 am]

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