50808 Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 

* * * * *

[FR Doc. 02–19798 Filed 8–5–02; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93 

[FRL–7256–3] 

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: Final rule.

SUMMARY: EPA is promulgating 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. 

First, today’s final rule will 

implement a 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. 

Although the grace period is already 

available to newly designated 

nonattainment areas as a matter of law, 

EPA is today incorporating the one-year 

conformity grace period into the 

conformity rule. 

Second, today’s final rule will change 

the point by which a conformity 

determination must be made following 

a State’s submission of a control strategy 

implementation plan or maintenance 

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

submission). Today’s rule requires 

conformity to be determined within 18 

months of EPA’s affirmative finding that 

the SIP’s motor vehicle emissions 

budgets are adequate. Prior to today’s 

action, the conformity rule required a 

new conformity determination within 

18 months of the submission of an 

initial SIP. 

This change to the conformity rule 

better aligns when the 18-month 

requirement for conformity to initial SIP 

submissions is implemented, so that 

state and local agencies have sufficient 

time to redetermine conformity when 

initial SIPs are submitted and after EPA 

finds the SIP budgets adequate.

EFFECTIVE DATE: This final rule is 

effective on September 5, 2002.

ADDRESSES: 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 final rule is available 

electronically from EPA’s Web site. See

SUPPLEMENTARY INFORMATION for 

information on accessing and 

downloading files.

FOR FURTHER INFORMATION CONTACT:

Angela Spickard, State Measures and 

Conformity Group, Transportation and 

Regional Programs Division, U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105, spickard.angela@epa.gov, (734) 

214–4283.

SUPPLEMENTARY INFORMATION: You can 

access and download today’s final rule 

on your computer by going to the 

following address on EPA’s 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 

that 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)) and EPA. 

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 of which EPA is aware 

that 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. Background 

II. One-year Conformity Grace Period for 

Newly Designated Nonattainment Areas 

III. Conformity Determinations for Initial SIP 

Submissions 

IV. What Comments That Addressed Topics 

Other Than Those Covered in This 

Rulemaking Did We Receive? 

V. How Does Today’s Final Rule Affect 

Conformity SIPs? 

VI. Administrative Requirements

I. Background 

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 

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), and made subsequent 

minor revisions to the rule in 1995 (60 

Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 50809

FR 40098, August 7, 1995, and 60 FR 

57179, November 14, 1995). On August 

15, 1997, however, EPA published a 

comprehensive set of amendments that 

clarified and streamlined language from 

the 1993 transportation conformity rule 

and 1995 amendments (62 FR 43780). 

Since the publication of the 1997 rule, 

we made one additional minor revision 

to the conformity rule in 2000 (65 FR 

18911, April 10, 2000). 

As described in the October 5, 2001, 

proposal to this final rule (66 FR 50954), 

EPA’s 1995 conformity rule provided a 

one-year conformity grace period to 

areas that were designated 

nonattainment for a given air quality 

standard for the first time (§ 93.102(d) of 

the November 14, 1995, final rule; 60 FR 

57179). However, this provision was 

challenged by the Sierra Club under the 

Clean Air Act as amended in 1990, and 

the U.S. Court of Appeals for the District 

of Columbia Circuit overturned the 

grace period on statutory grounds on 

November 4, 1997 (Sierra Club v. EPA, 

et al., 129 F. 3d 137, D.C. Cir. 1997). As 

a result of the court’s decision, the oneyear conformity grace period was no 

longer available to areas and EPA 

removed it from the conformity rule in 

2000 (65 FR 18911). Subsequently, 

Congress amended the Clean Air Act on 

October 27, 2000, to reinstate the grace 

period as a matter of law. Today’s final 

rule amends the conformity regulation 

by reinstating the grace period provision 

to be consistent with the October 2000 

Clean Air Act amendment, and therefore 

will provide newly designated 

nonattainment areas with a one-year 

grace period before the conformity 

regulation applies.

Today’s action also amends the 

conformity rule to respond, in part, to 

the impact of a decision made on March 

2, 1999, by the U.S. Court of Appeals for 

the District of Columbia Circuit that 

affected several provisions of the 1997 

rulemaking (Environmental Defense 

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

Cir. 1999). Specifically, today’s final 

rule addresses the indirect impact of 

this court decision on one provision of 

the conformity rule (§ 93.104(e)), the 

provision that requires conformity to be 

redetermined within 18 months of an 

initial SIP submission. In addition to 

today’s minor rule revision, we are 

currently preparing a future rulemaking 

to respond to the remaining issues 

addressed by the March 1999 court 

decision that will be separately 

proposed in the Federal Register. 

In the interim, areas where conformity 

applies are currently operating under 

administrative guidance that EPA and 

the U.S. Department of Transportation 

(DOT) issued to address the provisions 

directly affected by the court decision. 

See EPA’s web site listed in the 

SUPPLEMENTARY INFORMATION section to 

download an electronic version of EPA’s 

May 14, 1999, and DOT’s January 2, 

2002, memoranda implementing the 

March 1999 court decision. 

Today’s final rule is based on the 

October 5, 2001, proposed rule entitled, 

‘‘Transportation Conformity Rule 

Amendments: Minor Revision of 18-

month Requirement for Initial SIP 

Submissions and Addition of Grace 

Period for Newly Designated 

Nonattainment Areas’’ (66 FR 50954) 

and comments received on that 

proposal. The public comment period 

for the proposed rule ended on 

November 5, 2001. EPA received twelve 

public comments on the proposed rule 

from metropolitan planning 

organizations, state transportation and 

air quality agencies, and an 

environmental group. 

This final rule makes two minor 

changes to the October 5, 2001, 

proposed rule that further clarify the 

applicability of the one-year conformity 

grace period to newly designated 

nonattainment areas. No other 

modifications to the proposed rule, 

however, have been made in today’s 

final rule. EPA will not restate here its 

rationale for the changes to the 

conformity rule that are identical to the 

October 5 proposal. The reader is 

referred to the proposal notice for such 

discussions. 

II. One-year Conformity Grace Period 

for Newly Designated Nonattainment 

Areas 

A. What Are We Finalizing? 

Today, EPA is adding the existing 

one-year conformity grace period for 

newly designated nonattainment areas 

for a given air quality standard to the 

transportation conformity rule. We are 

finalizing this change to make the 

transportation conformity rule 

consistent with an October 27, 2000, 

amendment to the Clean Air Act (42 

U.S.C. 7506(c)(6)). 

Specifically, the October 2000 

amendment provides areas, that for the 

first time are designated nonattainment 

for a given air quality standard, with a 

one-year grace period before the 

conformity regulation applies with 

respect to that standard. This grace 

period begins upon the effective date of 

EPA’s published notice in the Federal 

Register that designates an area as 

nonattainment. Although today’s final 

rule incorporates the grace period into 

the transportation conformity rule, it 

has been available to newly designated 

nonattainment areas as a matter of law 

since Congress enacted the October 

2000 amendment to the Act. For more 

information on what defines a ‘‘newly 

designated’’ nonattainment area, see the 

October 5, 2001, proposal to today’s 

rulemaking. 

B. 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 

as 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 the first time for a 

given standard, metropolitan areas must 

have a conforming transportation plan 

and Transportation Improvement 

Program (TIP) in place to fund or 

approve transportation projects. If, at 

the conclusion of the one-year grace 

period, a metropolitan area is not able 

to make a conformity determination for 

its plan and TIP, the area will be in what 

is known as 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, during a conformity lapse 

exempt projects listed in § 93.126 (e.g.,

safety projects), projects listed in 

§ 93.127 and § 93.128, and project 

phases that have received all applicable 

funding commitments or approvals from 

the FHWA, FTA or state and local 

authorizing agencies can proceed 

toward implementation. Transportation 

control measures (TCMs) that EPA has 

approved into a SIP can also proceed 

during a lapse. TCMs are projects that 

support air quality goals by reducing 

travel or relieving congestion. 

The transportation plan and TIP must 

conform with respect to all pollutants 

for which the area is designated 

nonattainment to end the conformity 

lapse. Transportation conformity 

applies in areas that are designated 

nonattainment or maintenance for 

ozone, carbon monoxide, particulate 

matter, and nitrogen dioxide. For 

example, a carbon monoxide 

nonattainment area that 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 

carbon monoxide. By the end of the oneyear grace period, a conforming 

50810 Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 

transportation plan and TIP must be in 

place for all pollutants in a given area, 

in this case, for carbon monoxide and 

ozone. 

C. What Comments Did We Receive? 

In general, commenters supported 

amending the conformity rule to include 

the one-year conformity grace period for 

newly designated nonattainment areas. 

Most commenters believe that newly 

designated areas, especially those with 

little or no conformity experience, need 

the additional time to evaluate their 

long range transportation plans, TIPs 

and projects, and to complete the 

conformity process. Although the grace 

period has been available to newly 

designated areas since the enactment of 

the October 2000 Clean Air Act 

amendment, several commenters felt 

that its inclusion into the conformity 

rule will help to reduce confusion and 

provide assurance to future newly 

designated areas. 

Though most commenters agreed with 

amending the conformity rule to include 

the one-year grace period, some 

commenters argued that one year is not 

enough time to complete the 

transportation planning and conformity 

processes when an area becomes 

designated nonattainment for a given air 

quality standard for the first time. Some 

of these commenters believe that a 

longer grace period of three years is 

more appropriate. 

The October 2000 Clean Air Act 

amendment specifically provides newly 

designated areas with a one-year grace 

period, after which conformity applies. 

Therefore, we believe that the statutory 

language precludes EPA from extending 

the conformity grace period beyond one 

year for new areas. We should also 

emphasize, however, that areas will 

have prior notification of their pending 

designation well before the Federal 

Register notice announcing their 

designation is published. We encourage 

areas to use the time provided by the 

designation process to begin preparing 

themselves for implementing the 

conformity regulation. 

One commenter also requested that 

EPA consider delaying the effective date 

of designation to 60–90 days after a 

Federal Register notice is published, so 

that areas will have more time beyond 

the one-year grace period to meet the 

conformity requirements. Generally, the 

amount of time between publication and 

effective date is established through 

EPA’s administrative discretion on a 

case-by-case basis. Therefore, we do 

intend to consider how areas are 

designated, particularly for areas 

designated under new air quality 

standards, so that the transition to 

implementing the conformity regulation 

will be reasonable. Furthermore, as 

previously stated, the designation 

process will provide areas advanced 

notification of their pending 

designation. Areas should use this 

additional time prior to the one-year 

conformity grace period to prepare for 

the implementation of the conformity 

regulation and other Clean Air Act 

requirements. EPA can not now 

determine the appropriate effective date 

for all future designations, but will 

continue to do so, as appropriate on a 

case-by-case basis, in the course of 

future designation rulemaking. 

Finally, EPA received a comment 

questioning whether the proposed rule 

text included in our October 5, 2001, 

proposal is consistent with the statutory 

language in the Clean Air Act, section 

176(c)(6). Specifically, one commenter 

suggested that the proposed rule 

language does not incorporate the 

limitation that the one-year grace period 

only applies to areas that are designated 

nonattainment for a given pollutant for 

the ‘‘first’’ time. This commenter argued 

that the Clean Air Act precludes the 

availability of the grace period to areas 

that were once nonattainment for a 

standard, redesignated to attainment 

under Clean Air Act section 107(d)(3), 

but then designated back to 

nonattainment because they again 

violated the same air quality standard.

EPA agrees with this commenter’s 

interpretation of the statutory language; 

we do not believe that the grace period 

is available to areas that are designated 

nonattainment for a given pollutant and 

standard more than one time. The 

preamble to the October 5, 2001, 

proposal further supports this limitation 

by stating that the conformity grace 

period is not available to areas that have 

been previously designated 

nonattainment for a given pollutant and 

standard. 

Although EPA continues to believe 

that the proposed regulatory language 

for § 93.102(d) is consistent with the 

Clean Air Act, we are finalizing two 

minor clarifying changes to the 

proposed rule to ensure that the grace 

period is correctly implemented. 

Specifically, we have clarified in the 

final rule language that the grace period 

is only available to areas that have been 

‘‘continuously’’ designated attainment 

for a given standard since 1990, or have 

not been designated at all for a given 

standard for that same period. In 

addition, we specify that for areas that 

are designated nonattainment for the 

first time for a given air quality 

standard, the one-year conformity grace 

period only applies ‘‘with respect to that 

standard.’’ These minor clarifications 

ensure that the regulatory language 

limits the applicability of the one-year 

grace period to only areas that have 

been designated nonattainment for a 

given pollutant and standard for the first 

time, and therefore, is consistent with 

our interpretation and implementation 

of the Clean Air Act section 176(c)(6). 

EPA believes that a reproposal is not 

necessary to incorporate these minor 

clarifying changes in today’s final rule, 

as these clarifications are consistent 

with EPA’s original intentions and 

stakeholders’ understanding of the 

proposed regulatory language. 

III. Conformity Determinations for 

Initial SIP Submissions 

A. What Are We Finalizing? 

As in the proposed rule, this final rule 

revises § 93.104(e)(2) to change the 

trigger point or starting point of the 

requirement to determine conformity 

after an initial SIP submission is made. 

With this rule change, conformity must 

be determined 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. Today’s action changes 

the 1997 conformity rule that required 

conformity to be determined within 18 

months of the submission date for an 

initial SIP. The net effect is that areas 

will have the full 18 months to satisfy 

the conformity requirement for initial 

submissions once adequate budgets 

have become available for conformity. 

EPA is promulgating this minor rule 

revision to provide a reasonable 

response to an indirect impact of the 

March 2, 1999, court decision that 

requires EPA to first find the budgets 

from an initial SIP submission adequate 

before such budgets can be used in a 

conformity determination. 

Today’s final rule will also change the 

starting point for 18-month clocks that 

are currently running for areas with 

initial SIP submissions, so that these 

areas are given the full 18 months to 

determine conformity to their initial 

SIPs. In other words, in areas where a 

SIP has been submitted and EPA is 

currently reviewing it for adequacy, the 

18-month clock required by 

§ 93.104(e)(2) will not start until the 

effective date of our adequacy finding 

(i.e., today’s action voids the current 18-

month clock that started from the SIP 

submission date for these areas). If we 

are currently reviewing the adequacy of 

a submitted SIP, and subsequently find 

it inadequate, the 18-month clock will 

not start because today’s rule requires 

EPA to first find budgets in initial SIP 

submissions adequate before 

§ 93.104(e)(2) applies. Finally, for areas 

Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 50811

that have submitted initial SIPs that 

EPA has already found adequate and to 

which conformity has not yet been 

determined, this final rule will restart 

the 18-month clock from the effective 

date of EPA’s positive adequacy finding. 

Consistent with the proposed rule, 

today’s final rule will not require an 18-

month clock to begin if budgets from an 

initial SIP submission are found 

inadequate. Furthermore, this rule will 

void any 18-month clocks that are 

running for initial SIP submissions that 

EPA finds adequate, but subsequently 

finds inadequate before a conformity 

determination is made, at the time that 

EPA finds such budgets inadequate. 

Today’s action 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 

clock will still be triggered for the first 

attainment demonstration that an area 

submits and EPA subsequently finds 

adequate, as well as for the first rate-ofprogress SIP for a given year and 

maintenance plan that is submitted and 

found adequate. Today’s rule changes 

only the date on which these 18-month 

clocks begin to run. 

In addition, today’s action 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, areas do not have to satisfy 

this requirement again for subsequent 

submissions of the same type prior to 

EPA SIP approval. EPA believes that the 

requirement to update conformity every 

three years (40 CFR 93.104), along with 

other transportation planning and 

conformity requirements, provides 

sufficient additional opportunity for 

periodically introducing new air quality 

information into the conformity process. 

Furthermore, this action does not 

change the conformity rule’s 

requirement of 40 CFR 93.104(e)(3); 

areas are still required to demonstrate 

conformity within 18 months of EPA’s 

approval of a SIP containing revised 

budgets. 

Finally, as indicated in the proposal, 

today’s final rule will not affect those 

SIPs that are submitted to reflect 

additional control measures or to update 

MOBILE5 interim estimates of federal 

Tier 2 vehicle and fuel standards with 

MOBILE6. EPA has already stated that 

these SIP revisions are not initial SIP 

submissions that start 18-month clocks 

under 40 CFR 93.104(e)(2). EPA 

addressed this issue in the July 28, 

2000, supplemental notice of proposed 

rulemaking (65 FR 46386) for certain 

ozone attainment areas. 

For more information on what defines 

an ‘‘initial SIP submission,’’ see the 

October 5, 2001, proposal to today’s 

final rule. 

B. Why Is This Rule Change Necessary? 

Today’s rule change is necessary 

because it provides a reasonable 

response to an indirect impact of the 

March 2, 1999, court decision. In its 

March 1999, decision, the court ruled 

that EPA must first find newly 

submitted motor vehicle emissions 

budgets adequate before such budgets 

can be used in a conformity 

determination. An effect of the 

combination of the court decision and 

EPA’s previous rule was that a 

significant portion of the 18-month 

period for demonstrating conformity 

could elapse prior to the time EPA made 

a determination that the submitted 

budgets were adequate. 

As described in our May 14, 1999, 

guidance implementing the court’s 

decision, EPA’s current adequacy 

process for a newly submitted initial SIP 

starts when the 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. During the 

adequacy review period, the public is 

provided at least 30 days to comment on 

the appropriateness of the newly 

submitted budgets. EPA must then 

address all comments received for the 

submitted budgets before we can make 

our adequacy finding. Areas cannot 

begin the process of determining 

conformity using the submitted budgets 

with certainty until EPA has determined 

that the budgets are adequate.

Under the conformity rule prior to 

today and the court decision, a 

conformity determination cannot be 

made until budgets are found adequate, 

and therefore, transportation agencies 

should not be expected to invest 

valuable time and resources completing 

a regional emissions analysis and 

conformity determination prior to 

knowing which SIP budgets apply. As a 

result, under the prior rule, areas had 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 was 

complex and subsequently delayed, 

particularly in situations with 

significant public involvement, areas 

may have had even less time to 

determine conformity under the 

previous rule. As a consequence, the 

shortening of the 18-month period by 

the amount of time needed for the 

adequacy review process could lead to 

significant difficulties for those that 

implement the conformity program. 

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 this rule 

change is reasonable and necessary, 

given that this additional time needed 

for adequacy review was not 

contemplated when the original 18-

month initial SIP conformity 

requirement was established. 

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. In these cases, an 18-month 

period provides areas with the time 

needed to assess new information 

contained in a SIP, perform additional 

emissions analyses and provide the 

public with an opportunity to review 

new changes to the transportation plan 

and TIP and conformity determination. 

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. 

For more information on EPA’s 

adequacy process for initial SIP 

submissions, see the SUPPLEMENTARY

INFORMATION section in this final rule to 

download a copy of EPA’s May 14, 1999 

memorandum implementing the court’s 

decision. 

C. What Comments Did We Receive? 

The majority of commenters agreed 

that the 18-month requirement for 

conformity to initial SIP submissions 

should be aligned with EPA’s adequacy 

finding for such submitted budgets. 

Most commenters supported this rule 

change, as it will allow for greater 

certainty in the conformity process and 

will provide transportation planners 

sufficient time to incorporate new 

50812 Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 

information into the transportation 

planning and conformity processes. 

One commenter, however, believed 

that the proposed rule is arbitrary and 

capricious because it could potentially 

delay implementing new budgets in 

nonattainment areas where expeditious 

emissions reductions are necessary to 

meet statutory requirements and 

deadlines. The commenter asserted that 

18 months is an excessive amount of 

time to allow for a revision of the plan 

and TIP to take place, and that the time 

frame for redetermining conformity 

when new budgets become available 

should be tailored to the time remaining 

before a required milestone or 

attainment year. 

In addition, the commenter stated that 

EPA’s proposal is inconsistent with the 

Clean Air Act’s requirements for how 

often conformity determinations should 

be conducted. The commenter 

acknowledged that Clean Air Act 

section 176(c)(4)(B)(ii) provides EPA 

discretion in determining the frequency 

of conformity determinations, but 

believed that EPA must also consider 

Congress’ intention to have 

transportation agencies be ‘‘active 

players’’ in implementing the emission 

reductions required for reasonable 

further progress or attainment. The 

commenter cited Congressional records 

from the development of the 1990 Clean 

Air Act that stated that transportation 

activities can only be accepted by DOT 

if they are consistent with the SIP’s air 

quality goals; if a transportation plan 

and TIP does not meet the emissions 

targets set by the SIP and further motor 

vehicle emission reductions are needed 

to reach attainment, the plan and TIP 

must be modified to achieve the SIP’s 

budgets. 

EPA does not agree that the final rule 

will further delay the use of new 

budgets in the transportation planning 

and conformity processes. We are 

finalizing today’s rule change to provide 

a reasonable response to an indirect 

effect of the March 2, 1999, court 

decision that requires EPA to formally 

review and find initially submitted 

budgets adequate before they can be 

used in a conformity determination. As 

a result of the court’s ruling, we do not 

believe that starting an 18-month clock 

from the submission of a budget that 

may or may not be adequate and 

available for use for conformity 

purposes is environmentally sensible. 

We believe that good air quality results 

will be most effectively achieved by 

ensuring that new budgets are 

consistent with timely attainment or 

maintenance through the adequacy 

process before requiring their use in the 

transportation planning and conformity 

processes.

EPA also believes that the final rule 

is consistent with the Clean Air Act. 

While EPA agrees that the Clean Air Act 

requires transportation activities to 

conform to the SIP before federal 

funding and approval occurs and that 

the latest SIP budget should be used in 

such a conformity determination, the 

Clean Air Act does not specifically 

require conformity determinations to be 

done more often than every three years. 

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

requires EPA to promulgate conformity 

procedures and criteria that ‘‘shall, at a 

minimum, * * * address the 

appropriate frequency for making 

conformity determinations, but in no 

case shall such determinations for 

transportation plans and programs be 

less frequent than every three years 

***’’

EPA established the frequency 

requirements for conformity 

determinations covered by 40 CFR 

93.104 in previous rulemakings, 

including the requirements to determine 

plan/TIP conformity within 18 months 

of certain SIP actions (e.g., initial SIP 

submissions, EPA SIP approvals). The 

conformity rule’s frequency 

requirements meet the statutory 

minimum and, along with the 

requirement that new plans, TIPs, and 

plan/TIP amendments must 

demonstrate conformity before they can 

be implemented in between 3-year 

update cycles, provide sufficient 

opportunities for reevaluating plans and 

TIPs in relation to new SIPs, especially 

in areas that have more significant air 

quality challenges. Therefore, even in 

cases where EPA’s adequacy findings 

require more than three months to 

complete, existing conformity and 

transportation planning requirements 

provide a safeguard to prevent negative 

impacts on air quality. 

Moreover, areas typically begin 

considering new air quality information 

during the transportation planning 

process prior to EPA’s formal adequacy 

finding for initial SIP submissions, as 

our pending adequacy finding on newly 

submitted budgets may necessitate 

additional emissions reductions or 

alterations to an area’s current plan and 

TIP. In other words, transportation 

planners frequently become aware 

through early consultation with their air 

quality partners of when new, more 

stringent budgets are being developed, 

and thus, have the opportunity to 

consider changes to the transportation 

plan and TIP to ensure conformity to 

those new budgets in the future. 

Therefore, EPA continues to believe that 

the iterative nature of the conformity 

and transportation planning processes, 

along with early and effective 

interagency consultation, allows for new 

transportation activities to be 

continuously evaluated to ensure that 

attainment is not delayed. 

Furthermore, it is important to 

understand the role that transportation 

conformity plays in ensuring clean air. 

The transportation conformity process is 

one of many mechanisms established by 

the Clean Air Act for protecting public 

health. Although transportation 

conformity ensures that the SIP’s motor 

vehicle emissions targets are achieved 

through the transportation planning 

process, air quality planners and EPA 

are primarily responsible for ensuring 

that SIPs containing sufficient emissions 

reductions to meet applicable air quality 

requirements are developed according 

to statutory requirements and are 

available in the transportation planning 

process in a timely manner. 

This rule change will not have a 

significant impact on air quality because 

it in no way affects the overall statutory 

requirements and deadlines established 

to attain the air quality standards. The 

Clean Air Act defines the dates by 

which nonattainment areas must attain 

the air quality standards. It is the 

responsibility of EPA and the state and 

local air quality agencies to ensure that 

SIPs can achieve the necessary 

reductions to meet these deadlines, 

taking into account, among other 

factors, control measure implementation 

schedules and the timing of conformity. 

EPA also believes that the suggested 

approach of tailoring the amount of time 

that an area has to redetermine 

conformity with the amount of time 

remaining before an area’s next required 

milestone or attainment year would lead 

to inconsistencies and confusion in 

implementing the conformity rule. 

Moreover, the practical implementation 

of adjusting the time allowed to 

redetermine conformity following the 

submission of each initial SIP would 

introduce a great deal of uncertainty in 

the air quality and transportation 

planning processes, and would be 

logistically difficult and burdensome to 

implement. 

Transportation conformity is a 

process that coordinates two different 

planning processes—transportation and 

air quality planning. As a result, EPA 

has an obligation to balance the need to 

incorporate new air quality planning 

information and the need of 

transportation planners to have 

sufficient time to incorporate this new 

information into their planning process. 

We believe that today’s rule change 

regarding the conformity requirement 

for initial SIP submissions will achieve 

Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 50813

this balance, as well as remain within 

the boundaries of the statutory 

requirements. 

The same commenter also claimed 

that EPA provided no rational basis in 

the proposal for providing areas with an 

18-month time period for redetermining 

conformity to an initial SIP submission. 

Alternatively, the commenter suggested 

providing areas with a shorter time 

period of nine months to meet the 

conformity requirement for initial SIP 

submissions, particularly when the time 

between submission of a SIP budget and 

a statutory attainment or reasonable 

further progress deadline is less than 

24–36 months, or when such deadlines 

have not been met. According to the 

commenter, expediting conformity 

determinations in these situations 

would ensure that motor vehicle 

emissions control measures, such as 

transportation control measures and 

transit capital investments, will be in 

place in time to achieve necessary 

emissions reductions. 

EPA does not believe that the role of 

conformity, or of this rule change in 

particular, is to facilitate emissions 

reductions in the manner in which this 

commenter has suggested. The 

conformity provisions of the statute 

merely require that transportation 

activities conform to the SIP, and that 

such determinations include new 

transportation activities and are 

conducted at least every three years.

For this rulemaking, EPA did not 

propose extending or reducing the

18-month time period that is already 

provided to areas to redetermine 

conformity to initially submitted SIPs 

under existing federal rules. The 18-

month time period for initial SIP 

submissions was established through 

the November 14, 1995, final rule (60 FR 

57182). When EPA promulgated this 

rulemaking, we concluded that 18-

months was an appropriate time frame 

in which to incorporate new SIP 

submissions into the transportation 

planning process. Since that time, no 

new information has indicated that the 

18-month time period is inappropriate, 

as explained further below. Today’s 

final rule only changes the starting point 

of the 18-month time period for initial 

SIP submissions. This change is needed 

to response to an indirect impact of the 

March 2, 1999, court decision in which 

the court ruled that budgets could not 

be used for conformity purposes until 

EPA has found them adequate. 

Moreover, from EPA’s experience 

implementing the conformity rule to 

date, providing areas with 18 months to 

determine conformity to new SIP 

budgets is a reasonable time period, 

given the amount of time, resources and 

public participation that is required for 

the transportation planning and 

conformity processes. Prior to our 

November 14, 1995, amendment to the 

conformity rule, areas only had 12 

months to redetermine conformity to an 

initial SIP submission. Due to the 

overwhelming difficulties areas had in 

meeting these 12-month clocks, EPA 

proposed, considered public comment, 

and finalized extending the conformity 

requirement for initial SIP submissions 

to 18 months. As a result, EPA 

continues to believe that 18 months 

from an initial SIP conformity trigger for 

all areas is the most reasonable and 

workable time frame for redetermining 

conformity to initial SIPs. For more 

information regarding EPA’s rationale 

and response to comments for extending 

the initial SIP conformity trigger to 18 

months, see our November 1995 

rulemaking. An electronic version of 

this rulemaking can be downloaded 

from EPA’s web site listed in the 

SUPPLEMENTARY INFORMATION section of 

this rule. 

In addition, EPA believes that the 

existing transportation and air quality 

planning requirements do ensure that 

motor vehicle control measures that are 

approved into a SIP are implemented in 

such a manner that achieves the 

necessary emissions reductions in a 

timely fashion. Therefore, we do not 

believe that conformity determinations 

need to be expedited specifically for this 

purpose. Clean Air Act sections 174(a) 

and 176(c)(4) require the inclusion of 

transportation planners in the SIP 

development process and the formal 

establishment of consultation 

procedures among state and local 

transportation and air quality agencies 

involved in the conformity process, 

respectively. This required consultation 

among transportation and air quality 

agencies is intended to ensure that the 

transportation planning process 

becomes a routine component of any 

analysis (e.g., determining 

implementation schedules, evaluating 

emissions benefits, etc.) involving 

transportation control measures slated 

for inclusion in a SIP. Furthermore, as 

a practical matter, transportation 

projects, including those that have 

emissions reduction benefits, cannot 

receive federal funding or approval 

unless they are contained in a fiscally 

constrained and conforming 

transportation plan and TIP that has 

been approved through the 

transportation planning process, 

pursuant to 23 CFR part 450 and 49 CFR 

part 613. Therefore, these transportation 

and air quality planning requirements 

ensure that any transportation measure 

that EPA approves into a SIP has been 

coordinated through the transportation 

planning process and is designed to 

timely reduce emissions in accordance 

with the SIP’s purpose of achieving 

further progress, attainment or 

maintenance. 

The same commenter expressed 

concern over not requiring a new 18-

month clock when a conformity 

determination is made using budgets 

that EPA has found adequate, but not 

yet approved, prior to a subsequent 

submission of new, more stringent 

budgets for the same Clean Air Act 

requirement. In this particular case, the 

commenter believes that § 93.104(e)(2) 

should be triggered again, thus requiring 

areas to revise their plan and TIP to 

conform to the newly submitted revised 

budgets upon EPA’s adequacy finding. 

By not requiring § 93.104(e)(2) to apply 

in this situation, the commenter argues 

that this rule will sever the link between 

the conformity process and the 

obligation of transportation agencies to 

revise plans and TIPs to achieve the 

Clean Air Act’s objectives. 

EPA disagrees. EPA did not propose 

the additional 18-month requirement for 

the unique situation the commenter 

describes, and therefore can not address 

this issue in today’s final rule. 

Moreover, this suggested requirement is 

contrary to the historic position that 

EPA has held on this issue, as described 

in the preamble to our August 29, 1995 

proposed rulemaking initially 

establishing the 18-month requirement 

(60 FR 44792). In that proposal to 

extend the conformity requirement for 

initial SIP submissions to within 18 

months of their submissions, EPA states: 

‘‘If conformity to the initial submission 

has been demonstrated and that 

submission is subsequently revised, no 

18-month clock would start until * * * 

the SIP is approved by EPA.’’ EPA’s 

intent and implementation of 

§ 93.104(e)(2) of the conformity rule has 

always been to serve as a one-time 

conformity requirement for initial SIP 

submissions, so that areas can use new 

motor vehicle emissions budgets in a 

conformity determination when no 

budgets for a particular year and/or 

purpose had previously existed. 

Historically, we have never considered 

§ 93.104(e)(2) to be an iterative 

requirement that mandates continual 

conformity updates outside of the 

normal transportation planning process. 

Therefore, EPA continues to maintain 

that once conformity is determined and 

§ 93.104(e)(2) is satisfied for a SIP 

having a given purpose (e.g., attainment, 

rate-of-progress, maintenance), it is not 

necessary for areas to meet this 

requirement again for subsequent 

50814 Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 

submissions of the same type of SIP 

prior to EPA’s approval. Areas will 

again be required to determine 

conformity within 18 months of EPA’s 

approval of any revised budgets. 

However, in this situation, if new 

transportation activities are proposed 

after EPA finds the revised budgets 

adequate, but before SIP approval, a 

conformity determination based on the 

revised budgets along with all other 

applicable budgets would be required 

before such activities could be 

implemented. In other words, the 

revised budgets must be used (along 

with all other existing applicable 

budgets) in any determination after they 

have been found adequate, even though 

they are not subject to a new 18-month 

clock, pursuant to § 93.104(e)(2).

Furthermore, we do not agree that the 

integration of air quality and 

transportation planning via the 

conformity process will be 

compromised as a result of 

implementing § 93.104(e)(2) as a onetime requirement for each initial SIP 

consistent with the current rule. Due to 

the iterative nature of the transportation 

planning and conformity processes, the 

most current air quality information is 

incorporated on a regular and consistent 

basis. The three-year conformity 

requirement for transportation plans 

and TIPs, along with other 

transportation planning and conformity 

requirements, provides for the 

reasonable and timely introduction of 

the most current information into the 

conformity process. 

The same commenter also requested 

from EPA a clarification that § 93.118(a) 

requires a conformity determination for 

a plan and TIP to show consistency with 

all applicable adequate and approved 

budgets at the time a conformity 

determination is made. EPA agrees that 

this requirement applies for all 

conformity determinations, including 

those made for TIPs that rely on a 

previous emissions analysis pursuant to 

§ 93.122(e). 

Like all conformity determinations, a 

determination for a TIP that relies on a 

previous emissions analysis must satisfy 

the emissions test requirements of 

§ 93.118 (or § 93.119, if no applicable 

adequate or approved budgets exist), 

and must do so over the time frame of 

the transportation plan. EPA agrees with 

this clarification of § 93.118(a) and its 

requirement for demonstrating 

conformity using all applicable budgets, 

and will consider elaborating on this 

proposed clarification in a future 

rulemaking. Since EPA did not propose 

such a change, EPA is not making any 

changes in this final rule with regard to 

the described interpretation of 

§ 93.118(a). Nonetheless, EPA reiterates 

that this clarification is the intent of the 

existing rule. 

Finally, one commenter indicated that 

the October 2001 proposal was not clear 

as to how the one-year conformity grace 

period and the 18-month requirement 

for initial SIPs relate to one another. 

From the commenter’s reading of the 

proposed rule amendments, it appeared 

that the one-year grace period and 18-

month requirement for initial SIP 

submissions overlap. 

In response, the one-year conformity 

grace period and the 18-month 

conformity requirement for initial SIPs 

are not interrelated. Typically, when 

areas are newly designated they do not 

have a submitted SIP for which an 18-

month clock would start. In the unique 

situation where an area is newly 

designated and submits an initial SIP 

during the one-year grace period, 

conformity of the plan and TIP would 

still need to be demonstrated at the 

conclusion of the one-year grace period. 

If EPA has found adequate or approved 

the submitted SIP and budgets before 

the grace period expires, those adequate 

or approved budgets must be used for 

conformity. Therefore in this situation, 

both conformity requirements—a 

conforming plan and TIP one year after 

designation and the 18-month 

conformity requirement for the 

submitted SIP—would be satisfied if a 

conformity determination using the 

adequate or approved budgets is made 

prior to the expiration date of the oneyear grace period. 

If no adequate or approved budgets 

exist at the time that the one-year grace 

period expires, areas should use the 

conformity test(s) that EPA has deemed 

appropriate for satisfying the conformity 

requirement. EPA is currently 

considering what conformity test(s) will 

apply for areas that are designated 

nonattainment under new air quality 

standards (e.g., EPA’s ozone and 

particulate matter standards issued in 

1997) and will address this issue in 

future guidance documents and 

rulemakings prior to area designations. 

In this situation, an 18-month 

conformity clock pursuant to 

§ 93.104(e)(2) as amended today would 

not start until these areas submit an 

initial SIP and EPA has found the 

submitted budgets adequate for 

conformity purposes.

IV. What Comments That Addressed 

Topics Other Than Those Covered in 

This Rulemaking Did We Receive? 

Several commenters raised concerns 

about aspects of the transportation 

conformity rule that are not germane to 

this specific rulemaking, including the 

implementation of the conformity 

regulation under EPA’s new 8-hour 

ozone and PM–2.5 (particulate matter 

with an aerodynamic diameter less than 

or equal to a nominal 2.5 micrometers) 

standards, and the impact of the March 

2, 1999, court decision on projects that 

can proceed during a conformity lapse. 

These comments do not affect whether 

EPA should proceed with this final 

action, but EPA will be considering 

these comments when we develop 

policy guidance and future rulemakings 

to address these larger issues. 

In addition, one commenter requested 

that EPA consider eliminating two 

additional conformity SIP triggers 

required in § 93.104(e). Specifically, the 

commenter requested that we eliminate 

the 18-month conformity frequency 

requirements for SIP approvals that 

establish new budgets (§ 93.104(e)(3)) 

and for SIP approvals that revise TCMs 

(§ 93.104(e)(4)). This commenter 

characterized these additional SIP 

requirements as being superfluous and 

onerous to the transportation planning 

process. 

For today’s rulemaking, EPA did not 

propose eliminating the conformity 

triggers outlined in 93.104(e)(3) and 

93.104(e)(4), nor have we provided the 

public with an opportunity to comment 

on the suggested deletion of these 

provisions from the conformity rule. 

Therefore, we are not making any 

changes to these requirements at this 

time. However, we will consider this 

flexibility, along with others, for future 

rulemakings. A complete response to 

comments documents is in the docket 

for this rulemaking (see ADDRESSES for 

more information regarding the docket 

and additional documents relevant to 

this rulemaking). 

V. How Does Today’s Final Rule 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 (including those 

that have been approved as a 

Memorandum of Understanding or 

Memorandum of Agreement), 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 that include 

§ 93.104(e)(2) from the 1997 

transportation conformity rule (62 FR 

43780). In these areas, today’s final rule 

changes will be effective only when 

EPA approves a conformity SIP revision 

Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 50815

that includes the amendment to align 

the 18-month clock for initial SIP 

submissions with EPA’s adequacy 

finding. EPA will work with states as 

appropriate to approve such revisions as 

expeditiously as possible through 

flexible administrative techniques such 

as parallel processing and direct final 

rulemaking to insure that all areas will 

be able to benefit from this rule change 

in a timely manner. 

In some areas, however, EPA may 

have approved such provisions in error, 

if EPA had approved a conformity SIP 

that included § 93.104(e)(2) after the 

March 2, 1999, court decision, but prior 

to today. In these areas, EPA will 

publish, as appropriate, a technical 

correction in the Federal Register under 

section 110(k)(6) of the Clean Air Act to 

limit EPA’s approval of such SIPs and 

clarify that § 93.104(e)(2) should not 

have been approved into a conformity 

SIP since the court’s ruling indirectly 

affected this provision by requiring EPA 

to find submitted budgets adequate 

before the initial SIP requirement could 

be satisfied. Once EPA has corrected its 

approval of such SIPs to exclude the 

state’s version of § 93.104(e)(2), these 

areas will become subject to the 

amended version of § 93.104(e)(2) and 

18 month clocks will immediately begin 

to run from EPA’s adequacy 

determination rather than from the 

submission date of an initial SIP. 

In contrast, the one-year conformity 

grace period currently applies as a 

statutory matter for all newly designated 

nonattainment areas, including areas 

that have EPA-approved conformity 

SIPs, since this grace period was 

required as a matter of law once the Act 

was amended even prior to today’s final 

rule. 

VI. 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 final 

rule is not a ‘‘significant regulatory 

action’’ under the terms of Executive 

Order 12866 and is therefore not subject 

to OMB. 

B. Paperwork Reduction Act 

This final rule does not impose any 

new information collection 

requirements from EPA that 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 rule 

will not have a significant impact on a 

substantial number of small entities. 

This regulation directly affects federal 

agencies and metropolitan planning 

organizations that 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 final 

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 EPA 

promulgates a 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 of 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 final 

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. These 

rule amendments simplify the 

conformity rule and make it more 

practicable to implement, in accordance 

with the Clean Air Act and our 

50816 Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 

reasonable and thoughtful approach to 

an indirect impact of the court’s 

decision. 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 

standard 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 final 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 final rule 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 13175 

Executive Order 13175: ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

6, 2000) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

The Clean Air Act requires 

transportation conformity to apply in 

areas designated nonattainment and 

maintenance by EPA. Today’s minor 

amendments to the conformity rule do 

not significantly or uniquely affect the 

communities of Indian tribal 

governments. Specifically, this 

rulemaking will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

Accordingly, the requirements of 

Executive Order 13175 do not apply to 

this rulemaking. 

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 final rule, that 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 affirmatively 

find the motor vehicle emissions 

budgets contained in a SIP 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 will also provide newly 

designated nonattainment areas with a 

one-year grace period before conformity 

becomes applicable, as required by an 

October 2000 amendment to the Clean 

Air Act. 

In summary, one of the provisions in 

this final rule is required by statute and 

one provision will provide a reasonable 

response to an indirect impact of the 

court’s decision, and by themselves will 

not have substantial impact on States. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rulemaking. 

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 

Federal Register / Vol. 67, No. 151 / Tuesday, August 6, 2002 / Rules and Regulations 50817

FR 28355; May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

J. Submission to Congress and the 

Comptroller General 

Under 5 U.S.C. 801(a)(1)(A), as added 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, EPA 

submitted a report containing this rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to the 

publication of the rule in today’s 

Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C 

804(2). 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 7, 2002. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review, nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such a rule or action. This action may 

not be challenged later in proceeding to 

enforce its requirements. (See section 

307(b)(2) of the Administrative 

Procedures Act.)

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: July 31, 2002. 

Christine Todd Whitman, 

Administrator.

For the reasons set out in the 

preamble, 40 CFR part 93 is 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 

continuously 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 with respect 

to that standard for 12 months following 

the effective date of final designation to 

nonattainment for each standard for 

such pollutant.

3. Section 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(e) and can be used for 

transportation conformity purposes;

* * * * *

[FR Doc. 02–19797 Filed 8–5–02; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL EMERGENCY 

MANAGEMENT AGENCY 

44 CFR Part 64

[Docket No. FEMA–7789] 

Suspension of Community Eligibility

AGENCY: Federal Emergency 

Management Agency, FEMA.

ACTION: Final rule.

SUMMARY: This rule identifies 

communities, where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP), that are suspended on the 

effective dates listed within this rule 

because of noncompliance with the 

floodplain management requirements of 

the program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will be withdrawn 

by publication in the Federal Register.

EFFECTIVE DATES: The effective date of 

each community’s suspension is the 

third date (‘‘Susp.’’) listed in the third 

column of the following tables.

ADDRESSES: If you wish to determine 

whether a particular community was 

suspended on the suspension date, 

contact the appropriate FEMA Regional 

Office or the NFIP servicing contractor.

FOR FURTHER INFORMATION CONTACT:

Edward Pasterick, Division Director, 

Program Marketing and Partnership 

Division, Federal Insurance 

Administration and Mitigation 

Directorate, 500 C Street, SW., Room 

411, Washington, DC 20472, (202) 646–

3098.

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the 

National Flood Insurance Program, 42 

U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59 et seq. Accordingly, the communities 

will be suspended on the effective date 

in the third column. As of that date, 

flood insurance will no longer be 

available in the community. However, 

some of these communities may adopt 

and submit the required documentation 

of legally enforceable floodplain 

management measures after this rule is 

published but prior to the actual 

suspension date. These communities 

will not be suspended and will continue 

their eligibility for the sale of insurance. 

A notice withdrawing the suspension of 

the communities will be published in 

the Federal Register. 

In addition, the Federal Emergency 

Management Agency has identified the 

special flood hazard areas in these 

communities by publishing a Flood 

Insurance Rate Map (FIRM). The date of 

the FIRM if one has been published, is 

indicated in the fourth column of the 

table. No direct Federal financial 

assistance (except assistance pursuant to 

the Robert T. Stafford Disaster Relief 

and Emergency Assistance Act not in 

connection with a flood) may legally be 

provided for construction or acquisition 

of buildings in the identified special 

flood hazard area of communities not 

participating in the NFIP and identified 

for more than a year, on the Federal 

Emergency Management Agency’s 

initial flood insurance map of the 

community as having flood-prone areas 

(section 202(a) of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 

4106(a), as amended). This prohibition 

against certain types of Federal 

assistance becomes effective for the