Transportation Conformity Rule Amendment and Solicitation for Participation in the Transportation Conformity Pilot Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[FRL-5527-9]

RIN 2060-AG16

Transportation Conformity Rule Amendment and Solicitation for

Participation in the Transportation Conformity Pilot Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to amend the transportation conformity rule

to allow EPA to create and implement a conformity pilot program. The

conformity rule requires that transportation activities conform to

state air quality implementation plans and establishes the criteria and

procedures for determining whether or not they do. Conformity to an air

quality plan means that transportation activities will not produce new

air quality violations, worsen existing violations, or delay timely

attainment of national ambient air quality standards.

The pilot program would exempt up to six areas from some of the

existing rule's requirements. After EPA approval, the areas will

experiment with alternative conformity procedures for the three-year

duration of the program. Today's notice invites applications for

participation in the pilot program and presents the application and

selection process, which will be finalized in the final rule.

Along with recent amendments to the conformity rule, the pilot

program is part of an EPA strategy to provide states and localities

greater flexibility in meeting federal transportation conformity

requirements while reinforcing Clean Air Act commitments.

[[Page 35995]]

This strategy results from experience gained in implementing the

conformity rule.

The conformity pilot program would allow state and local

transportation and air quality agencies the additional flexibility to

seek out and test the conformity procedures that work best in their

area. Participating areas' experiences will be evaluated and it is

possible that successful pilot programs may ultimately lead to further

changes in the conformity rule.

DATES: Comments on this action must be received by August 8, 1996.

Applications may be submitted beginning July 9, 1996. EPA requests

expressions of interest by August 23, 1996.

ADDRESSES: Interested parties may submit written comments (in

duplicate, if possible) to: Air and Radiation Docket and Information

Center, U.S. Environmental Protection Agency, Attention: Docket No. A-

95-55, 401 M. Street, S.W., Washington, DC 20460.

Materials relevant to this proposal have been placed in Public

Docket A-95-55 by EPA. The docket is located at the above address in

room M-1500 Waterside Mall (ground floor) and may be inspected from 8

a.m. to 4 p.m., Monday through Friday, including all non-governmental

holidays.

For informational purposes, areas which submit expressions of

interest and applications will be listed on the EPA's Technology

Transfer Network (TTN) bulletin board, on the Office of Mobile Sources

(OMS) bulletin board under the Rulemaking: Transportation: Conformity

file area. TTN files can be accessed on the first call to (919) 541-

5742 or through the internet at TELNET ttnbbs.rtpnc.epa.gov. TTN is

off-line every Monday from 8:00 a.m.-12 Noon, and the TTN voice help

line is (919) 541-5384.

FOR FURTHER INFORMATION CONTACT: Elizabeth Cummings, Transportation and

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

Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI

48105, (313) 741-7857 or Lucy Garliauskas, Environmental Analysis

Division, Office of Environment and Planning, Federal Highway

Administration, 400 Seventh Street S.W., Washington, DC 20590, (202)

366-2068.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by the conformity rule are those

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

projects under the Intermodal Surface Transportation Efficiency Act or

Federal Transit Laws. Regulated categories and entities include:

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Examples of regulated

Category entities

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

quality agencies.

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

quality agencies.

Federal government........................ EPA and Department of

Transportation (Federal

Highway Administration and

Federal Transit

Administration).

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

guide for readers regarding entities likely to be affected by this

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

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

entities not listed in the table could also be affected. 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 today's preamble are listed in the following

outline:

I. Background of Transportation Conformity

II. Transportation Conformity Pilot Program

A. Program Objective

B. Exemptions from Certain Conformity Requirements

C. Eligibility

D. Submission of Applications

E. Selection Criteria

F. Selection Process

III. Conformity SIPs

IV. Administrative Requirements

A. Administrative Designation

B. Reporting and Recordkeeping Requirements

C. Regulatory Flexibility Act

D. Unfunded Mandates

I. Background of Transportation Conformity

The transportation conformity rule, ``Criteria and Procedures for

Determining Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Funded or Approved Under

Title 23 U.S.C. or the Federal Transit Act,'' was published November

24, 1993 (58 FR 62188) and amended 40 CFR Parts 51 and 93. It was

subsequently amended on August 7, 1995 (60 FR 40098) and November 14,

1995 (60 FR 57179). In addition, EPA is proposing a third set of

conformity amendments to further streamline and simplify the conformity

rule.

Required under section 176(c) of the Clean Air Act, as amended in

1990, the transportation conformity rule established the criteria and

procedures by which the Federal Highway Administration (FHWA), the

Federal Transit Administration (FTA), and metropolitan planning

organizations (MPOs) determine the conformity of federally funded or

approved highway and transit plans, programs, and projects to state

implementation plans (SIPs). The Clean Air Act requires that federally

supported activities conform to the implementation plan's purpose of

expeditiously attaining and of maintaining the national ambient air

quality standards.

Since publication of the transportation conformity rule in November

1993, EPA, the Department of Transportation (DOT), and state and local

air and transportation officials have had considerable experience

implementing the criteria and procedures in the rule. It is that mutual

experience which has lead EPA and DOT to undertake a number of

initiatives to streamline the transportation conformity rule. In

addition to significant revisions of the conformity rule through three

sets of amendments, today's proposal would provide further flexibility

through the creation and implementation of a transportation conformity

pilot program.

II. Conformity Pilot Program

The purpose of this notice is to propose an amendment to 40 CFR

Parts 51 and 93 to create a transportation conformity pilot program.

This amendment would allow EPA and DOT to select up to six areas to

participate in the program and would allow EPA to exempt the selected

areas from certain provisions of the transportation conformity

regulation for a period of three years. This notice also describes the

pilot program's objectives, application and selection process, and

participation requirements, and solicits applications for the program.

A. Conformity Pilot Program Objective

The overall objective of the conformity pilot program would be to

seek out and test innovative methods of streamlining regulatory

requirements while ensuring that Clean Air Act objectives and

requirements are met. EPA and DOT are committed to continuing to

encourage procedures which improve the conformity process. Under the

pilot program, state and local air and transportation agencies could

identify the conformity processes and procedures that work best for

their area, and EPA and DOT would select the applications expected to

lead to a more effective conformity process. It is

[[Page 35996]]

possible that successful pilot projects may ultimately lead to further

changes in the federal transportation conformity regulation.

The pilot program would enable as many as six areas to exercise

flexibility in meeting certain requirements of the conformity

regulation in three areas: modeling, consultation, and coordination of

the Intermodal Surface Transportation Efficiency Act (ISTEA) schedules

and procedures with conformity deadlines and schedules. EPA would also

consider proposals from applicants to extend this flexibility to other

aspects of the conformity requirements.

During the third year of the pilot program, EPA and DOT would

conduct a national evaluation to see if transportation policy, project

selection and investment choices changed as a result of a more flexible

approach to meeting the Clean Air Act conformity requirements; if

interagency consultation and public participation improved as a result

of new procedures; and if Clean Air Act compliance costs were reduced

and efficiencies implemented while still ensuring that Clean Air Act

goals and requirements were met. Pilot program areas would also propose

methods for self-evaluation of their conformity pilot program and

cooperate with the national evaluation.

B. Exemption From Certain Conformity Requirements

This proposal would allow EPA and DOT to exempt no more than six

areas for no more than three years from certain requirements of 40 CFR

Parts 51 and 93, if these areas are selected to participate in this

conformity pilot program. EPA and DOT approval of the alternative

requirements developed by the applicant areas would be required for

selection to participate in the pilot program. In order to obtain EPA

and DOT approval, each area would be required to provide an opportunity

for public comment on its proposed alternative conformity requirements.

The alternative conformity requirements would be proposed to achieve

results equivalent to or better than the requirements of 176(c) of the

Clean Air Act. Areas selected to participate in the pilot program must

comply with their final project agreements. After the three-year

duration of the pilot program has expired, the selected areas would

again be subject to all of the requirements of 40 CFR Parts 51 and 93.

However, EPA may revise 40 CFR Parts 51 and 93 to incorporate elements

of effective pilot programs based on results from evaluating the first

two years of program implementation.

C. Eligibility

Up to six areas currently subject to the requirements of the

transportation conformity regulation would be selected by EPA and DOT

to participate in the pilot program. Applications may be submitted by

either an MPO, a local air quality agency, a state air quality agency,

or a state department of transportation acting as a lead contact for

purposes of the pilot program. When submitting its application, the

lead agency must demonstrate that its proposal is endorsed by all state

and local air and transportation agencies that participate in the

area's interagency consultation process. In certain cases, for example,

an MPO that covers more than one nonattainment area or a nonattainment

area that covers more than one state, EPA and DOT may subsequently

request further endorsement from additional agencies affected by the

proposal.

D. Submission of Applications

Applications may be submitted to Elizabeth Cummings, Transportation

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

Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI

48105. Applications will be accepted beginning July 9, 1996. EPA will

begin accepting applications prior to final action on this rule

amendment. If the final rule is different than this proposal, due to

public comment received, areas that have already submitted applications

may be asked to supplement their application materials.

EPA requests that areas considering applying to the pilot program

submit a non-binding ``expression of interest'' before August 23, 1996.

The ``expression of interest'' letter could be submitted by the lead

agency and would not need to include any preliminary description or

endorsement of the application. This would provide EPA and DOT with an

approximate number of applications to expect. EPA would list the areas

that have submitted expressions of interest and applications on EPA's

Technology Transfer Network (TTN) bulletin board. EPA would also place

copies of the submitted applications in the public docket. (See

ADDRESSES for information on the TTN bulletin board and the public

docket.)

Once EPA has taken final action on this proposal, EPA and DOT would

be able to jointly select up to six pilot program participants on a

rolling basis until six participants are selected, unless the agencies

decide to select fewer than six participants. If fewer than six

participants are selected in the first iteration of the selection

process, EPA and DOT would continue to process applications on a

rolling basis.

The following information will enable EPA and DOT to consider an

application: (1) A particular proposal for flexibility in applying

elements of the conformity regulation; (2) the rationale for change,

including: (i) The particular problems in the existing requirements

that the proposal intends to address, and (ii) the benefits that the

alternative proposal would create (e.g., air quality benefits, resource

savings); (3) a description of the alternative methods and/or

procedures to be used in meeting conformity requirements; (4) the

proposed schedule for making conformity determinations during the pilot

program (for a period of up to three years); (5) evidence that

sufficient resources to conduct the pilot program will be available

(e.g., some of the pilot program activities may be eligible for title

23 State Planning and Research Funds (SPR) or Planning (PL) funds); (6)

discussion of any potential implementation issues that must be overcome

for the pilot program to be successful; (7) suggestions for self-

evaluation of the pilot program; (8) evidence that the proposal is

endorsed by all the state and local air and transportation agencies;

and (9) evidence that key stakeholders have been or will be consulted

and that appropriate public participation procedures will be

undertaken, which may be incorporated into the area's normal

interagency consultation process.

Applications should be in narrative form and should be concise

while still containing sufficient information to fully describe the

proposal. It is EPA and DOT's intent to use the application to conduct

preliminary reviews. Further details of the proposal would be

incorporated during the consultation stage of the selection process and

would be subject to the project agreement, as described below. The

extent to which the application addresses the information requested and

the application length will depend upon the proposal's complexity.

E. Selection Criteria

Applications would be assessed according to the following criteria:

(1) Whether the proposed flexibilities fulfill all the statutory

requirements for transportation conformity; (2) the degree to which the

application fulfills the pilot program's goals of testing innovative

methods and streamlining the regulatory process, including, but not

limited to, the specified areas of modeling, interagency/public

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consultation, and coordination of ISTEA and Clean Air Act requirements;

(3) the degree of key stakeholder and public support in the geographic

area covered by the proposal; (4) whether the applicant has the

resources necessary to effectively implement and evaluate the proposed

conformity pilot program; (5) whether the area has adequately

demonstrated its intent to comply with Clean Air Act objectives; and

(6) the degree to which data and analysis will be provided to help

assess air quality, resource savings, public participation, and other

program benefits.

In order to assure that the pilot program provides an opportunity

to test innovative approaches to conformity in a broad range of

circumstances, EPA and DOT would attempt to select a group of

participants that is diverse in terms of geographic distribution,

nonattainment pollutants, nonattainment classifications, and rural and

urban development.

F. Selection Process

The selection process would have three stages: application review,

applicant consultation, and project agreement finalization. First, EPA

and DOT will review submitted applications. Applications not selected

by the agencies during the initial application review will be notified;

all other applications will proceed to the consultation stage.

In the consultation stage, EPA and DOT will schedule a conference

call with each applicant to clarify any questions about the applicant's

proposal, permit the federal agencies to clarify their understanding of

what the proposed conformity pilot program would entail, and to

evaluate further the suitability of the proposal for inclusion in the

pilot program. Then EPA and DOT will arrange for a subset of these

applicants to present their proposals in a review session with federal

agency staff. Representatives of the lead agency submitting the pilot

program application and other public agencies involved in the

applicant's geographic area would participate in the presentation.

Based upon the information presented in the application and

consultation stages, EPA and DOT could select up to six applicants to

participate in the pilot program.

In the final stage, and following finalization of this rule

amendment, EPA, DOT and the applicant agencies would negotiate the

final project agreement, which would formalize each area's selection as

a pilot program participant. Before EPA and DOT approve the final

project agreement, the lead agency would be required to demonstrate

that it has provided a public comment period of not less than 30 days

on its proposed alternative conformity requirements. The lead agency

would also be required to demonstrate how it solicited and took into

account any public comments during the public comment period. Upon

finalization, the project agreement would be fully enforceable under

the Clean Air Act.

III. Conformity SIPs

Although this proposal would exempt pilot program participants from

certain conformity rule requirements, it could not exempt a pilot

program participant from requirements in its approved conformity SIP.

Once EPA has approved the conformity SIP, the federal conformity rule

no longer applies to those subjects covered by the conformity SIP, and

the requirements in the conformity SIP have the force of federal and

state law. Therefore, if an area's submitted conformity SIP has already

been approved by EPA, a new SIP would need to be submitted and approved

in order for an area to participate in the pilot program and be

relieved of certain of its conformity SIP requirements. The area's

final project agreement under the pilot program could be submitted as

its new conformity SIP.

If a pilot program participant has already submitted a conformity

SIP which EPA has not yet approved, then the conformity SIP (or certain

portions of the conformity SIP applicable to the particular area) would

need to be withdrawn for the duration of the pilot program in order to

ensure that the area could be governed by the final project agreement.

Areas that are selected to participate in the pilot program and

have not yet submitted a conformity SIP would be exempted from the

requirements of Sec. 51.396 (``Implementation plan revision'') so that

they would not be required to submit a conformity SIP for the area for

the duration of participation in the pilot program. In addition, areas

that are selected to participate in the pilot program would be exempted

for the duration of the pilot program from the requirement to submit a

SIP revision in response to conformity rule amendments.

IV. Administrative Requirements

A. Executive Order 12866

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

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

and therefore subject to OMB review and the requirements of the

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

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

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

or otherwise adversely affect in a material way the economy, a sector

of the economy, productivity, competition, jobs, the environment,

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

communities;

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

action taken or planned by another agency;

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

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

thereof;

(4) Raise novel or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in the Executive

Order.

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

regulatory action'' under the terms of Executive Order 12866. EPA has

submitted this action to OMB for review. Changes made in response to

OMB suggestions or recommendations will be documented in the public

record.

B. Reporting and Recordkeeping Requirements

This rule does not contain any information collection requirements

from EPA which require approval by OMB under the Paperwork Reduction

Act of 1980, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 requires federal agencies to

identify potentially adverse impacts of federal regulations upon small

entities. In instances where significant impacts are possible on a

substantial number of these entities, agencies are required to perform

a Regulatory Flexibility Analysis (RFA).

EPA has determined that today's regulations will not have a

significant impact on a substantial number of small entities. This

regulation affects federal agencies and metropolitan planning

organizations, which by definition are designated only for metropolitan

areas with a population of at least 50,000. These organizations do not

constitute small entities.

Therefore, as required under section 605 of the Regulatory

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

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

entities.

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D. Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

EPA has determined that to the extent this rule imposes any mandate

within the meaning of the Unfunded Mandates Act, this final action does

not include a mandate that may result in estimated costs of $100

million or more to State, local, or tribal governments in the aggregate

or to the private sector. Therefore, EPA has not prepared a statement

with respect to budgetary impacts.

List of Subjects

40 CFR Part 51

Environmental protection, Administrative practice and procedure,

Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 93

Administrative practice and procedure, Air pollution control,

Carbon monoxide, Intergovernmental relations, Ozone.

Dated: June 21, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I, Parts

51 and 93 of the Code of Federal Regulations are proposed to be amended

as follows.

PARTS 51 AND 93--[AMENDED]

1. The authority citation for parts 51 and 93 continues to read as

follows:

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

2. Parts 51 and 93 are proposed to be amended by adding identical

Secs. 51.446 and 93.137 to read as follows:

Sec. . Special exemptions from conformity requirements for pilot

program areas.

EPA and DOT may exempt no more than six areas for no more than

three years from certain requirements of this subpart if these areas

are selected to participate in a conformity pilot program and have

developed alternative requirements that have been approved by EPA and

DOT. In order to obtain EPA and DOT approval on its final project

agreement, each area must provide a 30-day public comment period and

address comments received on its proposed alternative conformity

requirements. The alternative conformity requirements must be proposed

to fulfill all of the requirements of and achieve results equivalent to

or better than section 176(c) of the Clean Air Act. Areas selected to

participate in the pilot program must comply with their final project

agreements. After the three-year duration of the pilot program has

expired, areas will be subject to the requirements of this subpart.

[FR Doc. 96-16591 Filed 7-8-96; 8:45 am]

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