[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Proposed Rules]
[Pages 35994-35998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16591]


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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:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
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).           
------------------------------------------------------------------------

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

[[Page 35997]]

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.

[[Page 35998]]

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]
BILLING CODE 6560-50-P