50954 Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the Federal and State

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that State laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that State programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

under SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 and

has determined that, to the extent

allowed by law, this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

30 CFR 730.11, 732.15, and

732.17(h)(10), decisions on proposed

State regulatory programs and program

amendments submitted by the States

must be based solely on a determination

of whether the submittal is consistent

with SMCRA and its implementing

Federal regulations and whether the

other requirements of 30 CFR Parts 730,

731, and 732 have been met.

Executive Order 13211—Regulations

That Significantly Affect The Supply,

Distribution, or Use of Energy

On May 18, 2001, the President issued

Executive Order 13211 which requires

agencies to prepare a Statement of

Energy Effects for a rule that is (1)

considered significant under Executive

Order 12866, and (2) likely to have a

significant adverse effect on the supply,

distribution, or use of energy. Because

this rule is exempt from review under

Executive Order 12866 and because it is

not expected to have a significant

adverse effect on the supply,

distribution, or use of energy, a

Statement of Energy Effects is not

required.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed State regulatory program

provision does not constitute a major

Federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S. based enterprises to

compete with foreign-based enterprises.

This determination is based upon the

fact that the State submittal which is the

subject of this rule is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 904

Intergovernmental relations, Surface

mining, Underground mining.

Dated: September 5, 2001.

Malcolm B. Ahrens,

Acting Regional Director, Mid-Continent

Regional Coordinating Center.

[FR Doc. 01–25005 Filed 10–4–01; 8:45 am]

BILLING CODE 4310–05–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 93

[FRL–7075–6]

RIN 2060–AJ70

Transportation Conformity Rule

Amendments: Minor Revision of 18-

Month Requirement for Initial SIP

Submissions and Addition of Grace

Period for Newly Designated

Nonattainment Areas

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing two minor

revisions to the transportation

conformity rule. Transportation

conformity is required by the Clean Air

Act to ensure that federally supported

highway and transit project activities

are consistent with (‘‘conform to’’) the

purpose of a state air quality

implementation plan (SIP). Conformity

to the purpose of the SIP means that

transportation activities will not cause

new air quality violations, worsen

existing violations, or delay timely

attainment of the national ambient air

quality standards. EPA’s transportation

conformity rule establishes the criteria

and procedures for determining whether

transportation activities conform to the

state air quality plan.

Today’s proposal would implement a

recent Clean Air Act amendment that

provides a one-year grace period before

conformity is required in areas that are

designated nonattainment for a given air

quality standard for the first time. This

Clean Air Act amendment was enacted

on October 27, 2000. Today’s proposal

formally adds the one-year conformity

grace period to the conformity rule, but

the grace period can already be used by

Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules 50955

newly designated nonattainment areas

as a matter of law.

This proposal would also revise the

timing for determining conformity after

a State submits a control strategy

implementation plan or maintenance

plan for the first time (an ‘‘initial’’ SIP

submission). The current conformity

rule requires a conformity

determination within 18 months of the

submission of an initial SIP. The

proposed rule would change this

requirement, so that conformity would

be required within 18 months of EPA’s

affirmative finding that the SIP’s motor

vehicle emissions budgets are adequate.

EPA is proposing this revision as a

result of the March 2, 1999, ruling by

the U.S. Court of Appeals for the District

of Columbia Circuit Court

(Environmental Defense Fund v. EPA, et

al., 167 F. 3d 641, D.C. Cir. 1999). The

court stated that motor vehicle

emissions budgets from an initial SIP

submission can only be used for

conformity once EPA affirmatively finds

the budgets adequate. Under this

approach, state and local agencies have

sufficient time to redetermine

conformity where initial SIPs are

submitted and after EPA finds such

budgets adequate. The preamble to the

proposal also clarifies what is

considered an initial SIP submission

under the conformity rule.

DATES: Comments on this action must be

received by November 5, 2001.

ADDRESSES: Comments should be

submitted (in duplicate, if possible) to:

Air and Radiation Docket and

Information Center, U.S. Environmental

Protection Agency, Attention: Docket

No. A–2001–12, 1200 Pennsylvania

Avenue, Mail Code 6102, Washington,

DC 20460.

Materials relevant to this rulemaking

are in Public Docket A–2001–12 located

at the U.S. Environmental Protection

Agency, 401 M Street, SW., Washington,

DC 20460 in Room M–1500, Waterside

Mall (ground floor). Ph: 202–260–7548.

The docket is open and supporting

materials are available for review

between 8 a.m. and 5:30 p.m. on all

federal government workdays. You may

have to pay a reasonable fee for copying

docket materials.

This proposal is available

electronically from our web site. See

SUPPLEMENTARY INFORMATION for

information on accessing and

downloading files.

FOR FURTHER INFORMATION CONTACT:

Denise Kearns, State Measures and

Conformity Group, Transportation and

Regional Programs Division, U.S.

Environmental Protection Agency, 2000

Traverwood Drive, Ann Arbor, MI

48105, kearns.denise@epa.gov, (734)

214–4240; or Meg Patulski, State

Measures and Conformity Group,

Transportation and Regional Programs

Division, U.S. Environmental Protection

Agency, 2000 Traverwood Drive, Ann

Arbor, MI 48105; patulski.meg@epa.gov;

(734) 214–4842.

SUPPLEMENTARY INFORMATION: You can

access and download today’s proposal

on your computer by going to the

following address on EPA’s Web site:

Internet Web Site

http://www.epa.gov/otaq/traq (Once

at the site, click on ‘‘conformity.’’)

Regulated Entities

Entities potentially regulated by the

transportation 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

affected by this action include:

Category Examples of regulated entities

Local government.Local transportation and air

quality agencies, including

metropolitan planning organizations.

State government.State transportation and air

quality agencies.

Federal government.Department of Transportation (Federal Highway

Administration (FHWA)

and Federal Transit Administration (FTA)).

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this proposal. This table lists

the types of entities that EPA is 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 40 CFR

93.102 of the transportation 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. What Is Transportation Conformity?

II. One-year Grace Period for Newly

Designated Nonattainment Areas

A. Background

B. What Are We Proposing?

C. How Soon Does Conformity Apply in a

Newly Designated Nonattainment Area?

D. Why Is a One-year Grace Period

Beneficial for Newly Designated

Nonattainment Areas?

III. Conformity Determinations for Initial SIP

Submissions

A. Background

B. What Are We Proposing?

C. Why Are We Proposing This Change?

D. Examples: When Would an 18-Month

Clock Start for an Initial SIP Submission?

IV. How Would Today’s Proposal Affect

Conformity SIPs?

V. Administrative Requirements

A. Executive Order 12866

B. Paperwork Reduction Act

C. Regulatory Flexibility Analysis

D. Unfunded Mandates

E. National Technology Transfer and

Advancement Act

F. Executive Order 13045

G. Executive Order 13084

H. Executive Orders on Federalism

I. Executive Order 13211

I. What Is Transportation Conformity?

Transportation conformity is required

under section 176(c) of the Clean Air

Act (42 U.S.C. 7506(c)) to ensure that

federally supported highway and transit

project activities are consistent with

(‘‘conform to’’) the purpose of a state air

quality implementation plan (SIP).

Conformity to the purpose of the SIP

means that transportation activities will

not cause new air quality violations,

worsen existing violations, or delay

timely attainment of the national

ambient air quality standards. EPA’s

transportation conformity rule (40 CFR

parts 51 and 93) establishes the criteria

and procedures for determining whether

transportation activities conform to the

state air quality plan.

EPA first published the transportation

conformity rule on November 24, 1993

(58 FR 62188). Minor revisions were

initially made to the rule in 1995 (60 FR

40098, August 7, 1995 and 60 FR 57179,

November 14, 1995), and more recently

in the spring of 2000 (65 FR 18911,

April 10, 2000).

On August 15, 1997, a comprehensive

set of amendments was published that

clarified and streamlined language from

the 1993 transportation conformity rule

(62 FR 43780). However, several

provisions from the 1997 rulemaking

were affected by the U.S. Court of

Appeals for the District of Columbia

Circuit in a decision made on March 2,

1999 (Environmental Defense Fund v.

EPA, et al., 167 F. 3d 641, D.C. Cir.

1999). Today’s proposal addresses the

impact of the March 2, 1999, court

decision on one provision of the

conformity rule. In addition to today’s

action, we are preparing a future

proposal that will further amend the

1997 conformity rule based on the

remaining issues addressed by the

court’s March 2, 1999, decision.

In the interim, areas where conformity

applies are currently operating under

50956 Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules

administrative guidance that EPA and

the U.S. Department of Transportation

(DOT) issued to address the provisions

directly affected by the court decision

[May 14, 1999, Memorandum from Gay

MacGregor, then-Director of the

Regional and State Programs Division of

EPA’s Office of Transportation and Air

Quality, to Regional Air Division

Directors, ‘‘Conformity Guidance on

Implementation of March 2, 1999,

Conformity Court Decision;’’ and June

18, 1999, Memorandum from Kenneth

R. Wykle, then-Administrator, Federal

Highway Administration (FHWA), and

Gordon J. Linton, then-Administrator,

Federal Transit Administration (FTA),

to FHWA Division Administrators,

Federal Lands Highway Division

Engineers, and FTA Regional

Administrators, ‘‘Additional

Supplemental Guidance for the

Implementation of the Circuit Court

Decision Affecting Transportation

Conformity’]. See EPA’s web site listed

in the SUPPLEMENTARY INFORMATION

section to download an electronic

version of any of these memoranda.

II. One-year Grace Period for Newly

Designated Nonattainment Areas

A. Background

Newly designated nonattainment

areas are any geographic areas or

portions of such areas which EPA

designates as nonattainment for the first

time for a given air quality standard.

EPA designates an area as

‘‘nonattainment’’ when its air quality

violates the national ambient air quality

standards (NAAQS) set by EPA to

protect public health. EPA designates

areas nonattainment through the

Federal Register. Nonattainment areas

that are reclassified (or ‘‘bumped up’’) to

a higher classification of nonattainment

for a given standard are not considered

newly designated nonattainment areas.

An area that is redesignated from

nonattainment to attainment (i.e.,

becomes a maintenance area) is not

considered a newly designated

nonattainment area. Finally, a

maintenance area that is redesignated

from attainment to nonattainment is

also not considered a newly designated

nonattainment area for the purposes of

this proposal.

Areas can be designated

nonattainment for more than one air

quality standard. For example, if an area

is currently designated as a carbon

monoxide nonattainment area but now

has monitoring data which show that it

is violating an ozone standard, the area

would be considered a newly

designated nonattainment area for ozone

once EPA’s final ozone nonattainment

designation is effective.

In the November 1995 conformity

rule, EPA gave newly designated

nonattainment areas a one-year grace

period before conformity applied for a

given standard (§ 93.102(d) of the

November 14, 1995 final rule, 60 FR

57179). However, this provision was

challenged by the Sierra Club, and the

U.S. Court of Appeals for the District of

Columbia Circuit overturned the grace

period on November 4, 1997 (Sierra

Club v. EPA, et al., 129 F .3d 137, D.C.

Cir. 1997). The court concluded that the

Clean Air Act in effect at that time did

not provide such a grace period. In

compliance with the court’s decision,

EPA deleted § 93.102(d) in a final rule

published on April 10, 2000 (65 FR

18911).

However, on October 27, 2000, an

amendment to the Clean Air Act was

enacted providing for the one-year grace

period for conformity in newly

designated nonattainment areas,

effective immediately [42 U.S.C.

7506(c)(6)].

B. What Are We Proposing?

As a result of Congress’ action, EPA

is proposing to add the one-year

conformity grace period for newly

designated nonattainment areas for a

given air quality standard to the

transportation conformity rule. We are

proposing this change to make the

transportation conformity rule

consistent with the amended Clean Air

Act.

C. How Soon Does Conformity Apply in

a Newly Designated Nonattainment

Area?

Under the current Clean Air Act as

amended in October 2000, conformity

applies one year after EPA first

designates an area or portion of an area

nonattainment for a given air quality

standard. More specifically, conformity

applies one year after the effective date

of EPA’s final nonattainment

designation, as published in the Federal

Register.

Therefore, one year after the effective

date of EPA’s designation of an area to

nonattainment for a given standard, a

conforming transportation plan and

transportation improvement program

(TIP) must be in place in order to fund

or approve transportation projects, or

the area will be in a conformity lapse.

In the absence of a conforming

transportation plan and TIP, no new

project-level conformity determinations

may be made. According to existing

guidance, exempt projects listed in

§ 93.126, projects listed in § 93.127, and

projects that have received final funding

commitments or approvals from the

FHWA or FTA can proceed toward

implementation. Transportation control

measures (TCMs) that EPA has

approved into a SIP can also proceed

during a conformity lapse. TCMs are

projects which support air quality goals

by reducing travel or affecting

congestion. A new conformity

determination for the transportation

plan and TIP based on all pollutants

that apply is necessary to end the

conformity lapse.

The transportation plan and TIP must

conform with respect to all pollutants

for which the area is designated

nonattainment. Transportation

conformity applies in areas that are

designated nonattainment for an ozone

standard, carbon monoxide, particulate

matter, and nitrogen dioxide criteria

pollutants. For example, a carbon

monoxide nonattainment area which is

subsequently designated nonattainment

for ozone has a one-year grace period

before conformity determinations must

be made for ozone; conformity would

continue to apply in the interim for CO.

By the end of the one-year grace period,

a transportation plan and TIP

conformity determination must be in

place for all pollutants in a given area,

in this case, for carbon monoxide and

ozone.

D. Why Is a One-year Grace Period

Beneficial for Newly Designated

Nonattainment Areas?

Although there are opportunities for

newly designated areas to prepare for

the conformity process prior to the

effective date of a nonattainment

designation, areas with little or no

conformity experience will find a oneyear grace period beneficial. The grace

period will provide these areas with

additional time to evaluate their long

range transportation plans, TIPs, and

projects, and to complete the conformity

process.

III. Conformity Determinations for

Initial SIP Submissions

A. Background

Under § 93.104(e)(2) of the current

conformity rule, a new conformity

determination for the transportation

plan and TIP is required no later than

18 months after the date that a State

submits for the first time a SIP (i.e., an

initial SIP submission) that establishes

motor vehicle emissions budgets. This

provision was created in the November

14, 1995, final rule (60 FR 57179) and

August 15, 1997, final rule (62 FR

43780) amending the conformity

requirement. See these final rules and

the proposals (60 FR 44790, August 29,

Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules 50957

1995, and 61 FR 36111, July 9, 1996) for

more background information.

An initial SIP submission is a control

strategy SIP (i.e., a reasonable further

progress or attainment demonstration

SIP) or a maintenance plan that is

submitted for the first time to address a

specific Clean Air Act requirement and

includes budgets that can be used for

conformity purposes. A revision to an

existing approved SIP for a certain

Clean Air Act requirement is not

considered an initial SIP submission

and therefore would not start a new 18-

month clock under § 93.104(e)(2).

Under the current conformity rule, if

conformity is not determined within 18

months of an initial SIP submission, the

conformity status of the transportation

plan and TIP lapse. See Section II.C. of

this proposal for more information of

which projects can proceed during a

lapse. A new conformity determination

based on the initial SIP’s budgets that

EPA has found adequate and any other

adequate budgets is necessary to avoid

or end a conformity lapse.

There may be limited cases where an

initial SIP is submitted, EPA finds its

budgets adequate, but then the state

submits a revision to the initial SIP with

budgets that EPA also finds adequate. In

this case, if conformity has not yet been

determined to the budgets in the first

submission, the conformity

determination to satisfy the 18-month

clock must be demonstrated to the

budgets in the revised SIP. The budgets

in the previous SIP submission would

no longer apply for conformity

purposes, since EPA has found the new

budgets adequate.

As stated in the preamble to the

August 29, 1995 proposal (60 FR 44792),

‘‘[t]he 18-month time period for

determining conformity would not be

affected by subsequent changes to the

submitted control strategy SIP. For

example, if within the 18-month period

the initial submission is revised before

conformity has been determined, the 18-

month clock would not be restarted.

However, when conformity is

eventually determined, the relevant

motor vehicle emissions budgets must

be used. If conformity to the initial

submission has been demonstrated and

that submission is subsequently revised,

no 18-month clock would be started,

until, as required in (§ 93.104(e)(3)), the

SIP is approved by EPA.’’

B. What Are We Proposing?

EPA is proposing a minor revision to

§ 93.104(e)(2) to ensure that

transportation planners have sufficient

time to consider new air quality

information in the transportation

planning process, so that the goals of air

quality plans are achieved. EPA

proposes to change the trigger point or

starting point of the requirement to

determine conformity from within 18

months of an initial SIP submission to

within 18 months of the effective date

of the Federal Register notice

announcing EPA’s finding that the

budgets in an initial SIP submission are

adequate. The net effect is that areas

will have the full 18 months to satisfy

the conformity requirement for initial

submissions. See Section III.D. for

examples of how today’s proposal

would be implemented.

Today’s proposal does not change the

current requirement to redetermine

conformity for each initial SIP that is

submitted for a given pollutant,

standard, and Clean Air Act

requirement. For example, an 18-month

conformity clock would still be started

for the first attainment demonstration

for a given pollutant and standard that

an area submits and EPA finds

adequate. Other conformity

determinations would be triggered by

the first rate-of-progress SIP or

maintenance plan that is submitted and

found adequate for each standard that

applies. Today’s proposal changes only

the date on which these 18-month

clocks begin to run. As previously

discussed, if an area revises its initial

SIP submission and EPA finds the

revised budgets adequate before

§ 93.104(e)(2) is satisfied, then the

conformity determination would be

based on the budgets in the most recent

submission found to be adequate.

Finally, today’s proposal does not

change the current rule’s requirement

that an area need only satisfy the 18-

month requirement to determine

conformity to an initial SIP submission

once for a given Clean Air Act

requirement. Once § 93.104(e)(2) is

satisfied, EPA believes that it does not

have to be satisfied again for subsequent

submissions of the same type prior to

EPA SIP approval. EPA required the 18-

month conformity determination clock

to introduce new air quality data into

the conformity process quickly. Once

this has been done, it would be

unreasonable to require further

determinations where SIP submissions

are revised. A new 18-month clock also

starts when EPA approves each control

strategy SIP revision and maintenance

plan which establishes or revises a

motor vehicle emissions budget,

according to § 93.104(e)(3) of the

transportation conformity rule. EPA

believes that this requirement, along

with other transportation planning and

conformity requirements, provides a

sufficient opportunity for periodically

introducing new air quality information

into the conformity process.

C. Why Are We Proposing This Change?

The proposal would ensure that all

areas have the full 18 months from the

time motor vehicle emissions budgets

become adequate to make transportation

plan and TIP conformity determinations

to initial SIP submissions, which is not

the case under the current conformity

rule.

In the 1997 conformity rule (40 CFR

93.118(e)(1)), areas could use the motor

vehicle emissions budgets from an

initially submitted SIP for conformity 45

days after we received the SIP, unless

EPA declared the budgets inadequate for

conformity purposes. On March 2, 1999,

the U.S. Court of Appeals for the D.C.

Circuit issued a decision on a challenge

to the 1997 transportation conformity

rule (Environmental Defense Fund v.

EPA, et al., 167 F. 3d 641, D.C. Cir.

1999). The court ruled that SIP budgets

cannot be used for conformity until EPA

affirmatively finds those budgets

adequate.

In response to the court’s decision,

EPA issued guidance regarding the

process that is used to review the

adequacy of budgets for conformity

purposes. The process described in this

guidance has been in effect since shortly

after the court’s March 2, 1999, ruling

(May 14, 1999, EPA memorandum from

Gay MacGregor, then-Director of the

Regional and State Programs Division in

the Office of Transportation and Air

Quality, to Regional Air Division

Directors, ‘‘Conformity Guidance on

Implementation of March 2, 1999, Court

Decision’’).

Today’s action would align the

conformity rule with EPA’s existing

guidance and with the March 2, 1999,

conformity court decision. Requiring

conformity following the effective date

of EPA’s adequacy finding on the

budgets, instead of the date that an

initial SIP is submitted, ensures that

new information is incorporated in a

timely and reasonable manner.

As described in the May 14, 1999,

memorandum, EPA’s current adequacy

process starts when a new SIP is

submitted and ends with the effective

date of our adequacy finding, which we

formally announce through a Federal

Register notice. EPA tries to complete

an adequacy review in approximately

three months, although in some cases

additional time is needed.

Areas cannot begin the process of

determining conformity using the

submitted budgets with certainty until

EPA has determined that the budgets are

adequate. Under our current conformity

rule and the court decision, a

50958 Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules

conformity determination cannot be

made until budgets are found adequate,

and therefore, transportation agencies

may not want to invest time and

resources completing a regional

emissions analysis and conformity

determination prior to knowing which

SIP budgets apply. As a result, under

the current rule, areas have a maximum

of 15 months to determine conformity

following an initial SIP submission (i.e.,

the 18-month conformity clock for

initial submissions minus the three

months minimally required for EPA to

determine adequacy). Where adequacy

review is complex and subsequently

delayed, areas may have even less time

to determine conformity under the

current rule. As a practical matter, if

budgets cannot be used until EPA

completes its adequacy review and the

finding becomes effective, the 18-month

clock for conformity should not start

until that time. EPA believes it is more

equitable for areas to have the full 18

months to complete conformity

determinations.

There can also be situations where

EPA finds submitted budgets adequate,

but later finds them inadequate because

new information has become available

that affects the adequacy of the budgets.

In these situations, conformity

implementers may try in good faith to

determine conformity to adequate

budgets in an initial SIP submission

within 18 months, only to have the

budgets found inadequate before a

conformity determination is made.

To address the situations described

above and based on our experience in

implementing conformity to date, EPA

continues to believe that areas should

have the full 18 months to determine

conformity. An 18-month period

provides areas with the time needed to

assess new information contained in a

SIP. We continue to encourage air

quality and transportation planners to

coordinate their processes so that new

air quality plans can be used

expeditiously in the transportation

conformity and planning processes.

Finally, today’s proposal does not

weaken the conformity rule provisions

or the SIP process. For example, EPA

considered whether starting the 18-

month clock from adequacy (rather than

from the state’s submission of the SIP)

would result in SIPs being submitted

with inadequate budgets.

EPA does not believe that this

situation would be encouraged by

today’s proposal. There are many other

considerations, aside from the

conformity process, that are in place to

encourage the development of SIPs that

can be approved with adequate budgets.

Due to the significant level of state and

local government resources that are

involved in developing a SIP that meets

Clean Air Act requirements, it is

unlikely that a state or area would

choose to submit a SIP with inadequate

budgets simply to avoid an 18-month

conformity clock from starting for an

initial SIP submission.

D. Examples: When Would an 18-Month

Clock Start for an Initial SIP

Submission?

The following examples help

illustrate what types of situations trigger

or do not trigger the 18-month

conformity requirement for initial SIP

submissions. There could be other cases

that are not described here but could be

implemented under this proposal.

How would this proposal affect areas

where an 18-month clock is currently

running? In areas where an 18-month

clock for an initial submission has

already started and has not yet been

satisfied, this proposed change would

alter those clocks. In these areas, EPA

proposes that a new 18-month clock

would be started on the effective date of

EPA’s positive adequacy finding for

budgets contained in an initial SIP

submission. If EPA has already found

budgets in the initial SIP submission

adequate and conformity has not been

determined to these budgets, the new

18-month clock would begin on the

effective date of EPA’s affirmative

adequacy finding. An 18-month clock

would not yet be started if EPA is still

reviewing budgets for adequacy, or if

EPA subsequently finds submitted

budgets inadequate.

For example, suppose an area

submitted its first attainment

demonstration 15 months ago. EPA

found the budgets in the attainment

demonstration adequate, and our

finding was effective five months after

submission. A conformity determination

on the transportation plan and TIP has

yet to be made. Under our current rule,

the area would have only three more

months to do conformity (i.e., the

current rule requires conformity to be

determined 18 months after submission,

and it has been 15 months since the SIP

was submitted). In contrast, under

today’s proposal, the area would still

have eight months to determine

conformity to the budgets in the initial

SIP (i.e., the clock would start on the

effective date of EPA’s adequacy finding

which happened 10 months ago).

Is a new conformity determination

triggered if EPA finds the budgets

inadequate during its adequacy review?

No, if EPA finds budgets inadequate, the

18-month clock for a conformity

determination would not be triggered.

Inadequate budgets cannot be used for

conformity determinations, and the

requirement to conduct a determination

is only triggered by budgets that can be

used for conformity. An 18-month

conformity clock would be triggered in

the future if a new SIP is submitted for

the same Clean Air Act requirement and

EPA finds its budgets adequate. This

new SIP would be considered an initial

submission since the prior SIP’s budgets

were found inadequate.

What happens if EPA finds the

budgets adequate but later finds them

inadequate? There have been limited

cases where EPA finds the budgets

adequate during our initial adequacy

review, but EPA later reverses its

decision because of new information

that indicates that the budgets are in fact

inadequate.

In such a case under the current rule

and under this proposal, if a conformity

determination had been approved by the

metropolitan planning organization

(MPO) and the Department of

Transportation (DOT) before the

effective date of the Federal Register

notice announcing EPA’s subsequent

finding that the budgets are inadequate,

the requirement to determine

conformity within 18 months of the

initial attainment demonstration would

be satisfied. The conformity

determination for the transportation

plan and TIP would continue to remain

valid, pursuant to § 93.118(e)(3) of the

current conformity rule and this

proposal. In this particular case, a new

18-month conformity clock for an initial

submission would not start if the state

subsequently makes a new initial SIP

submission containing budgets that EPA

also finds adequate. A new 18-month

clock would not start in this situation

because the conformity requirement for

initial submissions only needs to be

satisfied once for a specific Clean Air

Act requirement.

However, if the MPO and DOT had

not determined conformity to the

submitted budgets before EPA found the

budgets inadequate, the requirement to

determine conformity within 18 months

of an initial SIP submission under

§ 93.104(e)(2) would not be satisfied. In

this situation, EPA is proposing that an

18-month clock would start when the

state makes a new initial SIP submission

and EPA finds its budgets adequate for

conformity purposes. Transportation

agencies would have a new 18-month

time period to determine conformity

once the new budgets are in place.

In certain ozone areas, is a new 18-

month conformity clock started when

EPA finds budgets adequate that are

submitted to reflect additional control

measures or MOBILE6 estimates of Tier

2 vehicle and fuel standards? No, EPA

Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules 50959

1 In this answer, EPA is assuming that the original

attainment budgets that included interim MOBILE5-

based Tier 2 estimates were adequate and approved

as part of the attainment demonstration. If the

original MOBILE5-based budgets were found

inadequate prior to being used in a conformity

determination, then the MOBILE6 budgets would be

considered an initial submission that starts an 18-

month clock under § 93.104(e)(2).

has already stated that these SIP

revisions are not initial SIP submissions

that start 18-month clocks under

§ 93.104(e)(2).1 EPA addressed this

question in the July 28, 2000,

supplemental notice of proposed

rulemaking (65 FR 46386) for certain

ozone nonattainment areas.

IV. How Would Today’s Proposal Affect

Conformity SIPs?

Clean Air Act section 176(c)(4)(C)

requires states to submit revisions to

their SIPs to reflect the criteria and

procedures for determining conformity.

Section 51.390(b) of the conformity

rule specifies that after EPA approves a

conformity SIP revision, the federal

conformity rule no longer governs

conformity determinations (for the parts

of the rule that are covered by the

approved conformity SIP). In some

areas, EPA has already approved

conformity SIPs which include

§ 93.104(e)(2) from the 1997

transportation conformity rule. In these

areas, the final rule amendment that

changes this requirement as described

in today’s proposal will be effective

only when this amendment is included

in a conformity SIP revision and EPA

approves that SIP revision. EPA will

work with states to approve such

revisions as expeditiously as possible

through flexible administrative

techniques such as parallel processing

and direct final rulemaking.

In contrast, the one-year conformity

grace period applies as a statutory

matter for all newly designated

nonattainment areas, including areas

that have EPA-approved conformity

SIPs, since this grace period is already

required as a matter of law.

V. 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

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

proposal 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 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

proposed rule will not have a significant

impact on a substantial number of small

entities. This regulation directly 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 a

‘‘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

proposed 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 costeffective 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

proposed rule does not contain a

Federal mandate that may result in

50960 Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

any one year. These rule amendments

simplify the conformity rule and make

it more practicable to implement and

are being promulgated to formalize what

the court and Congress have already

decided as a legal matter. They do not

impose any additional burdens. Thus,

today’s proposed rule is not subject to

the requirements of sections 202 and

205 of the UMRA and EPA has not

prepared a statement with respect to

budgetary impacts.

E. National Technology Transfer and

Advancement Act

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 rulemaking does not involve

technical standards. Therefore, the use

of voluntary consensus standards does

not apply to this proposed rule.

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.

This proposal is not subject to

Executive Order 13045 because it is not

economically significant within the

meaning of Executive Order 12866 and

does not require the consideration of

relative environmental health or safety

risks.

G. Executive Order 13084

On January 1, 2001, EO13084 was

superseded by EO13175. However, this

proposed rule was developed during the

period when EO13084 was still in force,

and so tribal considerations were

addressed under EO13084.

Development of the final rule will

address tribal considerations under

EO13175. 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 today’s

proposed rule does not significantly or

uniquely affect the communities of

Indian tribal governments. The

proposed rule does not impose any

requirements on tribal governments.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this proposed rule.

H. Executive Orders on Federalism

Executive Order 13132, Federalism

(64 FR 43255, August 10, 1999), revokes

and replaces Executive Orders 12612

(Federalism) and 12875 (Enhancing the

Intergovernmental Partnership).

Executive Order 13132 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 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 of 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 rule with

federalism implications to OMB for

review pursuant to Executive Order

12866, EPA must include a certification

from 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, which amends a

regulation that is required by statute,

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 directed EPA to find the motor

vehicle emissions budgets contained in

a SIP affirmatively adequate before the

budgets can be used in conformity

determinations. To effectively

implement the court’s directive on this

matter, we believe it is necessary to

modify the timing of when one of our

existing frequency requirements for

conformity is required. The rule also

Federal Register / Vol. 66, No. 194 / Friday, October 5, 2001 / Proposed Rules 50961

would provide newly designated

nonattainment areas with a one-year

grace period before conformity becomes

applicable, as required by a recent

amendment to the Clean Air Act.

In summary, this proposed rule is

required by statute and the court’s

interpretation of the statute, and by

itself will not have substantial impact

on States. Thus, the requirements of

section 6 of the Executive Order do not

apply to this proposed rule.

I. Executive Order 13211

This rule is not subject to Executive

Order 13211, ‘‘Action Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use’’ (66

FR 28355(May 22, 2001) because it is

not a significant regulatory action under

Executive Order 12866.

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: September 28, 2001.

Christine Todd Whitman,

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.

2. Section 93.102 is amended by

adding paragraph (d) to read as follows:

§ 93.102 Applicability.

* * * * *

(d) Grace period for new

nonattainment areas. For areas or

portions of areas which have been

designated attainment or not designated

for any standard for ozone, CO, PM10 or

NO2 since 1990 and are subsequently

redesignated to nonattainment or

designated nonattainment for any

standard for any of these pollutants, the

provisions of this subpart shall not

apply for 12 months following the

effective date of final designation to

nonattainment for each standard for

such pollutant.

3. § 93.104 is amended by revising

paragraph (e)(2) to read as follows:

§ 93.104 Frequency of conformity

determinations.

* * * * *

(e) * * *

(2) The effective date of EPA’s finding

that motor vehicle emissions budgets

from an initially submitted control

strategy implementation plan or

maintenance plan are adequate pursuant

to § 93.118 and can be used for

transportation conformity purposes;

* * * * *

[FR Doc. 01–25017 Filed 10–4–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 141 and 142

[WH–FRL–7076–2]

RIN 2040–AB75

National Primary Drinking Water

Regulations; Arsenic and Clarifications

to Compliance and New Source

Contaminants Monitoring

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of data availability.

SUMMARY: Today’s action announces the

availability of three reports and

recommendations on the science, cost of

compliance, and benefits analyses in

support of a rule on arsenic in drinking

water. These reports were prepared by

panels convened by the National

Academy of Sciences, the National

Drinking Water Advisory Council, and

the EPA Science Advisory Board. The

establishment and operation of each of

these independent, expert panels was

described in a July 19, 2001, Federal

Register proposed rule. The July 19

proposal also requested comment on

whether data and analyses support

setting the enforceable arsenic drinking

water standard, or Maximum

Contaminant Level (MCL), at 3

micrograms per liter (ug/L) (the feasible

level), 5 ug/L (the level proposed in

June 2000), 10 ug/L (the level published

in the January 2001 rule), 20 ug/L, or

some other level. The availability of

these three reports allows commenters

to consider this information in

preparing their comments on the July

19, 2001, proposal, and to comment on

the data, analyses, and conclusions that

EPA should consider.

DATES: Comments must be in writing

and either postmarked or received by

EPA’s Water Docket by October 31,

2001.

ADDRESSES: EPA accepts comments by

three delivery methods:

(1) Mailed to the W–99–16–VI Arsenic

Comments Clerk, Water Docket (MC–

4101); U.S. EPA, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460.

(2) Hand delivered (e.g., courier or

overnight delivery service) to EPA’s

Water Docket, located at 401 M Street,

SW; East Tower Basement Room 57, in

Washington, DC; between 9 a.m. and

3:30 p.m. Eastern Daylight Time,

Monday through Friday, except

holidays.

(3) Electronically sent to ow-arsenicdocket@epa.gov. See SUPPLEMENTARY

INFORMATION for file formats and other

information about electronic filing and

docket review.

FOR FURTHER INFORMATION CONTACT: The

Safe Drinking Water Hotline, phone:

(800) 426–4791 or (703) 412–3330, email: hotline-sdwa@epa.gov for general

information, meeting information, and

copies of arsenic regulations and

support documents. For other inquiries,

contact Richard Reding, (202) 260–4441,

e-mail: reding.richard@epa.gov.

SUPPLEMENTARY INFORMATION:

Additional Information for Commenters

No facsimiles (faxes), compressed or

zipped files will be accepted, and

comments must be submitted in writing.

Please submit an original and three

copies of your comments and enclosures

(including references) and identify your

submission by the docket number W–

99–16–VI. To ensure that EPA can read,

understand, and therefore properly

respond to comments, the Agency

would prefer that comments cite, where

possible, the question(s) or sections and

page numbers in the document or

supporting documents to which each

comment refers. Commenters should

use a separate paragraph for each issue

discussed. Commenters who want EPA

to acknowledge receipt of their

comments should include a selfaddressed, stamped envelope.

EPA uses WordPerfect as its standard

software, so electronic attachments

(including 3.5 inch floppy disks) must

be identified as docket submissions for

W–99–16–VI and submitted in

WordPerfect 8 (or older version) or

ASCII file format (unless four hard

copies are also submitted). Comments

attached in other electronic formats

(e.g., Word, pdf, Excel, and compressed

or zipped files) must also be submitted

as hard copies. If you submit your

comment both electronically and as a

hard copy, please note this on both

submissions so the Docket can link your

submissions as one comment rather

than two separate comments. Electronic

comments on this document may be

filed online at many Federal Depository

Libraries.

There is no need to submit a comment

to repeat views stated in previous

comments, or if you do not have