[Federal Register Volume 64, Number 52 (Thursday, March 18, 1999)]
[Rules and Regulations]
[Pages 13476-13483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6654]
[[Page 13475]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 93
Transportation Conformity Rule Amendment for the Transportation
Conformity Pilot Program; Final Rule
Federal Register / Vol. 64, No. 52 / Thursday, March 18, 1999 / Rules
and Regulations
[[Page 13476]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-6309-6]
RIN 2060-AG79
Transportation Conformity Rule Amendment for the Transportation
Conformity Pilot Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is finalizing the amendment to the transportation
conformity rule which allows 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.
EPA and DOT will select up to six areas to participate in the pilot
program. Each selected pilot area must submit its pilot procedures to
EPA as a conformity SIP revision; if approved, these alternative
procedures will be enforceable and replace the sections of the federal
conformity rule that are addressed by each pilot program. Each pilot
area will implement its pilot procedures for the three-year duration of
the program. Today's action also describes the final application and
selection process.
The conformity pilot program allows 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.
Along with recent amendments to the conformity rule, the pilot
program is part of an EPA and DOT strategy to provide states and
localities greater flexibility in meeting federal transportation
conformity requirements while reinforcing Clean Air Act transportation
and air quality commitments.
DATES: This rule is effective on April 19, 1999. EPA has been accepting
applications since July 9, 1996, and the deadline for submitting
applications and expressions of interest is open-ended.
ADDRESSES: Materials relevant to this rulemaking are contained in
Docket No. A-95-55. The docket is located in room M-1500 Waterside Mall
(ground floor) at the Environmental Protection Agency, 401 M Street
S.W., Washington, DC 20460. The docket may be inspected from 8 a.m. to
5:30 p.m., Monday through Friday, including all non-government
holidays. See SUPPLEMENTARY INFORMATION for obtaining an electronic
version of the final rule.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, Transportation and
Market Incentives Group, Regional and State Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, (734) 214-4842.
SUPPLEMENTARY INFORMATION:
Electronic Version of Final Rule
The final rule is available electronically from the EPA internet
web site. Users are able to access and download files using a personal
computer according to the following information:
Internet Web Sites
http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired
date or use Search feature) OR http://www.epa.gov/oms/traq (look in
What's New or under the Conformity file area)
The electronic version of this final rule should be available today
on any of the above-listed sites. For informational purposes, areas
which submit expressions of interest and applications will be listed on
the Conformity file area at the above web address. Please note that due
to differences between the software used to develop the final rule and
the software into which the document may be downloaded, changes in
format, page length, etc. may occur.
Regulated Entities
Entities potentially regulated by the conformity rule are primarily
those which adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Local government..................... Local transportation and air
quality agencies.
State government..................... State transportation and air
quality agencies.
Federal government................... EPA, 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 potentially affected by this rule.
This table lists the types of entities that EPA is now aware could
potentially be regulated by the conformity rule. Other types of
entities not listed in the table could also be regulated. To determine
whether your organization is regulated by this action, you should
carefully examine the applicability requirements in Sec. 93.102 of the
conformity rule. If you have questions regarding the applicability of
this action to a particular entity, see the FOR FURTHER INFORMATION
CONTACT section.
The contents of today's preamble are listed in the following
outline:
I. Background on Transportation Conformity
II. Discussion of Major Changes From the Proposal: Conformity SIPs
A. Description of Final Rule
B. Rationale and Response to Comments
C. Implications for Applicants and Participants
D. Responses to Other Comments
III. Conformity SIP Revisions for Selected Pilot Areas
A. Content of Conformity SIPs in Pilot Areas
B. Existing Requirements for Conformity SIP Revisions
IV. Application and Selection Process: General Overview
A. Application Process
B. Selection Criteria
C. Selection Process
V. Administrative Requirements
A. Executive Order 12866
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Submission to Congress and the Comptroller General
E. Unfunded Mandates
F. Petitions for Judicial Review
G. Children's Health Protection
H. National Technology Transfer and Advancement Act
[[Page 13477]]
I. Executive Order 12875: Enhancing Intergovernmental
Partnerships
J. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
I. Background on Transportation Conformity
Today's action creates a transportation conformity pilot program by
amending the transportation conformity rule, as most recently amended
on August 15, 1997 (62 FR 43780). Required under section 176(c) of the
Clean Air Act, the transportation conformity rule established the
criteria and procedures by which the Federal Highway Administration
(FHWA), the Federal Transit Administration (FTA), and local
metropolitan planning organizations (MPOs) determine the conformity of
federally funded or approved highway and transit plans, programs, and
projects to state air quality implementation plans (SIPs). Conformity
ensures that transportation plans, programs, and projects do not
produce new air quality violations, worsen existing violations, or
delay timely attainment of national ambient air quality standards
(NAAQS). According to the Clean Air Act, federally supported
transportation activities must conform to the SIP's purpose of
attaining and maintaining these standards.
Since publication of the original 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. This
experience has led EPA and DOT to streamline the conformity process
through today's action and several past amendments to the conformity
rule. EPA finalized minor amendments to the rule on August 7, 1995 (60
FR 40098), and November 14, 1995 (60 FR 57179). EPA also finalized a
more significant third set of conformity amendments on August 15, 1997
(62 FR 43780). The amendments and the conformity pilot program were
created through a stakeholder process which has included both federal
agencies, state and local air and transportation planning agencies, and
environmental and transportation interest groups.
The Notice of Proposed Rulemaking (NPRM) for today's rule was
published in the Federal Register on July 9, 1996 (61 FR 35994). EPA
worked with conformity stakeholders in developing the proposal, with
input from the National Governors' Association (NGA), state DOTs, state
and local environmental agencies, MPOs, environmentalists, other local
officials, and DOT. In December of 1995, EPA circulated a draft of the
proposal to stakeholders for comment, and a conference call was held to
discuss the draft proposal.
The NPRM described an application and selection process and
proposed regulatory text to create the pilot program. The proposal also
opened the pilot program's application period and requested that
interested areas submit a non-binding expression of interest letter for
the pilot program.
The proposal's comment period ended August 8, 1996. EPA received
three comments on the proposal. EPA has received expressions of
interest in the pilot program from the following five agencies: the
Southern California Association of Governments (SCAG); the Washington
State Department of Ecology; the Birmingham Regional Planning
Commission in Alabama; the Idaho Division of Environmental Quality; and
the Las Vegas Regional Transportation Commission. In addition to these
letters, SCAG submitted a brief draft paper outlining its potential
ideas for a pilot program. As of today's final rule, EPA has not
received any formal applications to the pilot program. Copies of all
present and future comments, expression of interest letters,
applications, and other submitted documents for the pilot program in
their entirety can be obtained from the EPA docket for the final rule
(see Addresses). The docket also includes a complete Response to
Comments document for this rulemaking.
As described in the proposal, the pilot program allows areas to
submit applications that propose specific flexibility for three aspects
of the conformity rule: modeling, consultation, and coordination of the
Intermodal Surface Transportation Efficiency Act (ISTEA) schedules and
procedures with conformity deadlines and schedules. EPA and DOT will
also consider applications proposing to extend flexibility to other
aspects of the conformity rule. EPA and DOT will award $25,000 to each
selected pilot program to facilitate in the implementation of a pilot
area's proposed flexibility.
During the third year of the pilot program, EPA and DOT will
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's conformity provisions; 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. Selected pilot areas will also propose
methods for self-evaluation of their conformity pilot program and
cooperate with the national evaluation.
II. Discussion of Major Changes From the Proposal: Conformity SIPs
A. Description of Final Rule
As proposed, today's final rule allows no more than six areas to
participate in the transportation conformity pilot program for no more
than three years. The final rule enables selected pilot areas to
substitute their alternative conformity procedures for the relevant
requirements of the federal conformity rule for the three-year duration
of the pilot program.
The final rule changes the proposal by requiring that each selected
pilot area submit a conformity SIP revision containing the area's
alternative conformity procedures, and requiring that EPA approve the
conformity SIP revision before a pilot area can implement these new
procedures. The proposed application requirements, selection criteria,
and the majority of the selection process has not changed in the final
rule.
EPA proposed that selected pilot areas submit their alternative
procedures as project agreements, which would have undergone a 30-day
public comment period but would not have been processed through notice-
and-comment rulemaking as formal conformity SIP revisions. Under the
proposal, EPA and DOT would have finalized project agreements after the
completion of the public comment period (assuming that no adverse
comments were received and that the agreements met the established
criteria). These agreements would then have been fully enforceable
under the Clean Air Act.
In response to comments, EPA has revised how pilot programs will be
finalized. Under the final rule, each selected pilot area must submit
its alternative pilot procedures to EPA as a formal conformity SIP
revision. If such SIPs are approved, these procedures will replace the
sections of the federal conformity rule or previously approved
conformity SIP that the area has chosen to address in its pilot program
as the federally enforceable conformity requirements for the area. The
alternative conformity procedures must achieve results equivalent to or
better than the requirements of 176(c) of the Clean Air Act. Only
selected pilot areas will be required to submit conformity
[[Page 13478]]
SIP revisions pursuant to the pilot program. EPA and DOT are not
requiring that interested areas submit their initial pilot applications
as conformity SIP revisions. EPA and DOT will jointly select up to six
pilot programs. If fewer than six participants are selected in the
first iteration of the selection process, EPA and DOT will continue to
process applications on a rolling basis.
After EPA's approval of a pilot area's conformity SIP, an area will
implement its pilot procedures for three years. After the pilot program
has expired, pilot areas will again be subject to all of the
requirements of the existing federal transportation conformity rule (40
CFR Parts 51 and 93) and/or previously approved conformity SIPs. 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.
Selected pilot areas must also submit a conformity SIP revision in
a timely manner according to Sec. 51.390 of the conformity rule, which
requires all nonattainment and maintenance areas to submit a SIP
revision incorporating all of the federal conformity requirements in
the August 15, 1997 rule amendments. Conformity SIP revisions for pilot
programs will fulfill the SIP submission requirement of Sec. 51.390 for
the duration of the pilot program for only those sections/paragraphs
that are addressed by the area's alternative pilot procedures.
Since 1993, the transportation conformity rule has been included in
40 CFR part 51 and largely duplicated in 40 CFR part 93. At the time of
the pilot program proposal, EPA proposed to amend both parts 51 and 93
because of this duplication in the CFR. However, the August 15, 1997
conformity rule amendments streamlined the CFR and eliminated all but
Sec. 51.390 from part 51. Therefore, today's action only amends 40 CFR
part 93. The pilot program proposal had not proposed any changes to
Sec. 51.390.
B. Rationale and Response to Comments
EPA has changed the proposal and required selected pilot areas to
submit their alternative conformity procedures as conformity SIP
revisions for several reasons. First, EPA agrees with commenters that
Congress clearly intended that conformity SIPs be used to establish
state and local conformity procedures in all areas subject to
conformity requirements, pursuant to Clean Air Act section
176(c)(4)(C).
Because EPA will approve conformity procedures for selected pilot
areas through the SIP process, the final rule addresses commenters'
concerns that pilot area conformity procedures must be subject to the
Administrative Procedures Act's (APA) notice-and-comment requirements.
One commenter stated that adequate public comment would not be
available under the proposal because selected pilot areas would only
have been required to hold a 30-day local public comment period on
final pilot project agreements, instead of the national comment period
provided for EPA conformity SIP approvals. Since selected pilot areas
would use alternative procedures as a substitute for the existing
federal conformity rule, some commenters believed that pilot procedures
should be subject to the same APA process as the existing rule. The
final rule addresses these concerns because conformity SIP revisions
must be subject to APA notice-and-comment requirements before they can
be approved. Requiring conformity SIP revisions for selected pilot
areas also ensures that the rights and responsibilities of state and
local agencies and the public are made clear. For example, a conformity
SIP specifies what agencies make conformity determinations as well as
who distributes information to the public prior to a conformity
determination.
The final rule also addresses a commenter's suggestion that a
selected pilot program's alternative conformity procedures must be
approved as a SIP revision in order to be fully enforceable under the
Clean Air Act. EPA believes that the pilot area's final conformity
procedures would not necessarily have to be contained in a SIP revision
to be enforceable. EPA believes that Clean Air Act section 113(a)(3)
would have allowed pilot conformity procedures in a project agreement
to be enforceable by EPA under the federal conformity rule until they
were included in a SIP, as was proposed. Nevertheless, EPA believes
that the final rule's requirement for conformity SIPs addresses the
original comment by removing the potential ambiguity about
enforceability and clarifying that pilot procedures will be enforceable
both by EPA under section 113 and by citizen suit under section 304, as
applicable.
Requiring conformity SIP revisions for selected pilot areas will
also address the procedural inequities that would have occurred under
the proposal. The proposal would have allowed selected pilot areas that
had not yet submitted any conformity SIP to immediately participate in
the pilot program, whereas selected areas with approved conformity SIPs
would have had to amend their existing conformity SIPs prior to
participating in the pilot program. Under the final rule, the
procedures for gaining EPA and DOT approval are now the same regardless
of whether an area has a previously approved conformity SIP; all areas
participating in the pilot program will need to submit a conformity SIP
revision and have it approved by EPA before they can participate in the
pilot program.
Today's final rule also addresses concerns that the proposal
violated specific Clean Air Act requirements for conformity SIPs. One
commenter believed that EPA could not propose to exempt selected pilot
areas from submitting the conformity SIP revisions (required by
Sec. 51.390 of the conformity rule) during the three years of the pilot
program. According to this commenter, EPA also has an obligation to
take final action on previously submitted conformity SIPs within 12
months of submission (Clean Air Act section 110(k)(2)), and pilot areas
cannot withdraw these required conformity SIPs in order to participate
in the pilot program, as was proposed. Furthermore, the commenter
believed that the 18-month SIP failure sanctions clock should be
started if a state withdraws a previously submitted conformity SIP in
order to participate in the pilot program. In light of the comments
submitted, EPA agrees that Clean Air Act section 176(c)(4)(C) cannot be
waived or modified, and EPA is addressing all of these comments in the
final rule by requiring conformity SIP revisions for both alternate
pilot procedures and the August 15, 1997 rule amendments.
By eliminating all of the above concerns through provisions for
notice-and-comment approval of each alternative pilot procedure, EPA
believes that future legal challenges to either individual pilot sites
or the overall pilot program will be minimized. In addition, because
the SIP process is an established process that requires interagency
consultation and public participation, using the SIP process to approve
pilot procedures will minimize potential confusion. State and local
agencies and the general public are already familiar with their roles
in the SIP process, whereas the proposal would have created an ad hoc
process for the pilot program that could have introduced confusion
regarding the roles and responsibilities of state and local agencies
and the general public. At the same time, EPA also believes that the
final rule imposes minimal additional administrative burdens on
selected pilot areas, as described in more detail below.
[[Page 13479]]
C. Implications for Applicants and Participants
As a practical matter, the final rule does not impose significant
additional burden on selected pilot areas when compared to the
proposal. The proposal's application and selection processes have not
changed; only the project finalization stage of the pilot program has
changed in the final rule. Thus, changes from the proposal will only
affect the areas that EPA and DOT actually select for the conformity
pilot program.
In the project finalization stage, EPA, DOT, and each selected
pilot area will still negotiate the details of the pilot area's
alternative conformity procedures, as was proposed. However, the final
alternative conformity procedures must be submitted to EPA as a
conformity SIP revision prior to implementation, for the reasons
described above. EPA had originally proposed that pilot areas submit
project agreements, not conformity SIPs. Under the final rule, EPA,
DOT, and each pilot area will agree about the content of each
conformity SIP prior to its submission, including what the alternative
conformity procedures will be and what aspects of the federal
conformity rule will be addressed by these alternative procedures.
As with any SIP submission, selected pilot areas will need to
comply with the SIP completeness criteria contained in 40 CFR part 51,
Appendix V. In addition to other documentation, pilot areas must
include with their conformity SIP submission: a formal letter of
submittal from the Governor or his/her designee and evidence that a
state public hearing was held and sufficient public notice for the
hearing occurred. EPA believes that the public input requirements are
still similar under the proposal and today's final rule. The pilot
proposal would have required a 30-day local comment period on final
project agreements, whereas the final rule requires that a public
hearing be held, as is always required in the SIP process. Since EPA
approval through notice-and-comment rulemaking is now required for all
selected pilot areas, the time period before areas will be able to
implement their pilot programs may be lengthened. However, EPA believes
that this will only have a short-term impact on the implementation
schedule of each pilot program. In general, EPA intends to use a SIP
processing technique known as parallel processing to approve conformity
SIP revisions in order to reduce the length of time necessary before
EPA SIP approval, as described more fully below. Finally, EPA notes
that the final rule change does not impact all potential pilot areas
since formal notice-and-comment rulemaking would have been required
under the proposal in any case for pilot areas that already have
approved conformity SIP revisions.
EPA is committed to expediting the review and approval of
conformity SIP revisions for the pilot program. To accomplish this, EPA
intends to parallel process conformity SIPs for the pilot program where
possible. Under parallel processing, states would submit their proposed
conformity SIP to EPA, and the state and EPA would then request public
comment on the proposed conformity SIP at the same time. If no adverse
comments are received at either the state or federal levels, EPA would
then finalize approval as soon as possible after formal state adoption
and submittal occurs, as long as no substantive changes have occurred
and the conformity SIP is still approvable. If there are adverse
comments or changes in the state procedures, EPA may reconsider the
proposed approval or issue a supplemental proposal at the federal level
based on response to comment or revised state requirements prior to
approving the conformity SIP. States need to request parallel
processing when submitting to EPA the proposed conformity SIP revision
for each pilot program. They must also include a schedule for the
state's final adoption or issuance of the SIP.
D. Responses to Other Comments
1. Endorsement of Pilot Applications
One commenter stated that EPA should maintain the proposal's
requirement that pilot applications be endorsed by all affected state
and local air and transportation agencies. EPA agrees and is retaining
this requirement.
2. Purpose of the Pilot Program
One commenter believed that the current conformity rule already
provides for flexibility in modeling, consultation, and coordination of
ISTEA and conformity schedules, and EPA did not adequately justify in
the proposal why additional conformity flexibility is necessary under a
pilot program. Others commented that the pilot program would be a
significant step in EPA providing states and cities greater flexibility
in meeting conformity requirements.
Although the August 15, 1997 conformity rule amendments streamline
and simplify the conformity process, EPA believes that there may be
additional opportunities that are unique to local processes. During EPA
and DOT's original stakeholder process, many conformity stakeholders
expressed their desire for further flexibility in implementing the
conformity rule.
3. Selection Criteria
A commenter suggested that any state that has not yet submitted a
conformity SIP should automatically be excluded from consideration for
participation in the pilot program. This commenter believed that his/
her viewpoint was supported by one of the proposal's selection criteria
that stated that EPA must consider ``whether the area has adequately
demonstrated its intent to comply with Clean Air Act objectives'' (61
FR 35997). The commenter believed that even with the delay in the
promulgation of the original conformity rule, conformity SIPs should
have been submitted by November, 1994, and therefore, EPA should not
select any area that has not yet complied with this requirement.
EPA does not believe that compliance with the intent of the Clean
Air Act should be solely measured by whether an area has submitted a
conformity SIP. There are many ways that an area can comply with the
intent of the Clean Air Act, including whether an area has submitted
the appropriate control strategy SIPs. Furthermore, EPA believes that
the degree to which an area is complying with the federal
transportation conformity rule (e.g., modeling or consultation
requirements) is more relevant than whether it has submitted a
conformity SIP. In addition, EPA is aware that many areas delayed
submitting conformity SIPs to save local resources because EPA was in
the process of revising the federal conformity rule, which would
necessitate revisions to any adopted state conformity requirements.
Therefore, EPA will not automatically eliminate an applicant from
possible participation in the pilot program if an area has not
submitted past conformity SIPs.
4. National Consistency of Pilot Procedures
A commenter stated that the pilot program contradicts Congress'
desire for uniform procedures between federal agencies and among MPOs
and states when making conformity determinations; Congress did not
authorize major exemptions from EPA regulations such as those proposed
under the pilot program. EPA does not believe that Congress intended
complete national uniformity for all conformity requirements because it
specifically required local conformity SIPs, which
[[Page 13480]]
allow areas to tailor aspects of their conformity processes. EPA
believes that this final rule does not inhibit national consistency
because the final rule requires all pilot procedures to fulfill the
requirements of section 176(c) of the Clean Air Act, as all areas
subject to the federal conformity rule are required to do.
III. Conformity SIP Revisions for Selected Pilot Areas
A. Content of Conformity SIPs in Pilot Areas
The conformity SIP revisions for selected pilot areas must contain
substitute regulatory language for those sections and/or paragraphs of
the current transportation conformity rule that would be replaced by
the pilot area's alternative conformity procedures. In order for EPA to
review the conformity SIP revision, the sections of the current rule
that are being proposed to be replaced as well as the new pilot
sections must be clearly identified.
EPA will accept conformity SIP revisions in any fully enforceable
form, including state laws or memorandums of understanding (MOUs),
provided the state can demonstrate to EPA's satisfaction that, as a
matter of state law, the state has adequate authority to compel
compliance with the requirements of the state pilot conformity
procedures.
Selected pilot areas must also include language incorporating
Sec. 93.129 in their conformity SIPs, in addition to those sections/
paragraphs of the federal rule that will be addressed by each pilot
area's alternative conformity procedures. EPA cannot exempt pilot areas
from the otherwise applicable federal conformity requirements without
pilot areas including this section in their conformity SIPs, since
Sec. 93.129 grants EPA the authority to implement individual pilot
programs. Only selected pilot areas will be required to incorporate
Sec. 93.129 in their conformity SIPs.
B. Existing Requirements for Conformity SIP Revisions
Section 176(c)(4)(C) of the Clean Air Act requires that all states
with areas subject to conformity must submit a SIP revision that
establishes state conformity procedures. Conformity SIP revisions
address how DOT, MPOs, and other state and local agencies will assess
the conformity of transportation plans, programs, and projects to the
SIP; conformity SIPs also define the conformity requirements for
recipients of federal funds. Section 51.390 of the conformity rule
outlines what needs to be addressed in the conformity SIP, including
how interagency consultation and public participation will occur. In
addition, Sec. 51.390 requires that SIP revisions incorporating
amendments to the conformity rule be submitted within one year of the
publication of those actions. Aside from conformity SIP revisions for
selected pilot areas, the federal conformity rule presently only
requires that states submit SIP revisions within one year of the
publication of the August 15, 1997 rule amendments, because these
amendments supersede all past conformity rulemakings.
As part of the pilot program, selected pilot areas that currently
have an EPA-approved conformity SIP revision will only need to revise
those sections/paragraphs of the approved conformity SIP that are being
addressed in the area's pilot procedures. Separately, the federal
conformity rule will still require pilot areas with currently approved
conformity SIPs to revise the other sections of their approved
conformity SIP according to the August 15, 1997 conformity rule
amendments.
If a selected pilot area has previously submitted a conformity SIP
for the original 1993 rule or subsequent rule amendments and EPA has
yet to approve it, then the pilot area would need to indicate in its
new pilot SIP revision which sections/paragraphs of the previously
submitted conformity SIP are being modified. EPA continue to require
that the pilot area update its conformity SIP submission according to
the August 15, 1997 rule amendments (62 FR 43780) within one year of
the publication of the amendments, for the conformity rule sections not
addressed by the pilot program. Selected pilot areas that have
previously submitted a conformity SIP revision which EPA has not yet
approved would not need to withdraw such a revision in order to
participate in the pilot program. This would have been required under
the proposal. Instead, they may merely update it through SIP
submissions to meet the pilot program and the amended federal rule.
EPA believes that it is appropriate to approve conformity SIPs for
the pilot program that address only a portion of the federal conformity
requirements, even if an area doesn't yet have an approved conformity
SIP revision for the recent rule amendments. The remaining sections/
paragraphs that are not addressed by an area's alternative pilot
procedures must ultimately be addressed by another conformity SIP in a
timely fashion. While an area prepares this additional conformity SIP
revision, the federal conformity rule will continue to apply for the
provisions not covered by the pilot area's conformity SIP, thus
providing continuity in conformity implementation.
Since the alternative procedures will only apply in pilot areas for
up to three years, EPA will insert a three-year sunset date provision
in its approval of each pilot area's conformity SIP at the time of EPA
SIP approval. After this three-year sunset date is reached, those
sections/paragraphs of the approved conformity SIP that are
alternatives to the federal conformity rule would no longer be
federally approved. The federal conformity rule or other relevant
previously approved conformity SIP provisions would instead apply for
those sections/paragraphs until another conformity SIP revision for the
area consistent with the federal rule is approved.
IV. Application and Selection Process: General Overview
A. Application Process
Under the final rule, the application process for the pilot program
will be the same as in the proposal. Applications will not need to be
submitted as conformity SIP revisions; a SIP submission will only be
necessary if an area is selected by EPA and DOT to participate in the
pilot program. All areas subject to the requirements of the
transportation conformity regulation are eligible to apply to the pilot
program.
As stated in the proposal and this final rule, either an MPO, a
local air quality agency, a state air quality agency, or a state
department of transportation may submit an application, acting as the
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
are eligible to participate in the area's conformity 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 pilot proposal.
As generally stated in the proposal, the following information will
enable EPA and DOT to adequately consider an application: (1) a
description of the alternative conformity methods and/or procedures to
be used in meeting conformity requirements; (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
[[Page 13481]]
alternative proposal would create (e.g., air quality benefits, resource
savings); (3) a description of how alternative conformity methods and/
or procedures will fulfill the conformity requirements of and achieve
results equivalent to or better than section 176(c) of the Clean Air
Act; (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 (e.g., public, community groups)
have been or will be consulted. In today's action, EPA has clarified
the first and third application elements so that interested areas
understand what should be addressed in pilot applications. This final
rule does not create any new application elements for pilot applicants.
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. If EPA and DOT selected an area for the pilot
program, further details of each pilot proposal would be expanded
during the consultation stage of the selection process and would be
refined in the conformity SIP revision. The application length and the
extent to which the application addresses the information requested
will depend upon the proposal's complexity.
Areas can submit pilot applications at any time. Before an
application is developed, EPA and DOT encourage any interested areas to
send a non-binding expression of interest letter to EPA highlighting
the area's initial interest, and if possible, describing the area's
basic idea for a pilot application. However, an expression of interest
letter is not necessarily required before an area submits a pilot
application. Please send expressions of interest letters and/or
applications to the contact listed in the FOR FURTHER INFORMATION
CONTACT section of today's action.
EPA will maintain a list of areas which have expressed interest or
applied to the pilot program on the EPA conformity web site. All
complete letters and applications will be placed in the EPA docket for
this rulemaking. For more information on how to access the conformity
web site or docket, please see the ADDRESSES section of this final
rule.
B. Selection Criteria
The final rule does not change the proposal's selection criteria by
which EPA and DOT will judge pilot applications. Applications will be
assessed according to the following criteria: (1) whether the proposed
flexibilities fulfill all of 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 conformity process, including, but not limited to,
improved modeling and interagency/public consultation and better
coordination of ISTEA and Clean Air Act requirements; (3) the degree of
key stakeholder and public support in the geographic area affected 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.
EPA and DOT will attempt to select a group of participants that is
diverse in terms of geographic distribution, pollutants, nonattainment
or maintenance classifications/designations, and rural and urban
development, since both federal agencies believe that the pilot program
should provide an opportunity to test innovative conformity approaches
in a broad range of circumstances.
C. Selection Process
The proposal described a three-stage selection process which would
involve application review, applicant consultation, and project
finalization. Under this final rule, the application review and
applicant consultation stages of the selection process in the proposal
remain the same; only the proposed project agreement finalization stage
is changed from the proposal, as described in section II.
1. Application Stage
Under this final rule, when an application is submitted, EPA and
DOT will review the application and decide whether it should proceed to
the consultation stage. EPA and DOT will notify agencies whether or not
they have been selected to proceed.
2. 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. EPA and DOT will then 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 and proceed to the finalization stage.
3. Project Finalization Stage
As described in section II., an area selected to advance to the
project finalization stage will submit its alternative conformity
procedures as a conformity SIP revision, and this revision must be
formally approved before a pilot area can implement its conformity
pilot program.
V. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or
more, or otherwise adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant regulatory action''
because this action does not have any of the impacts described above or
raise novel legal or
[[Page 13482]]
policy issues arising out of legal mandates, the President's
priorities, and the principles set forth in the Executive Order.
Therefore, this action was not subject to OMB review under the
Executive Order.
B. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements from EPA which require approval by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq. An Agency may not conduct
or sponsor, and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
C. Regulatory Flexibility 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 rule will
not have a significant impact on a substantial number of small
entities.
D. 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).
E. 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.
F. 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 May 17, 1999.
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 rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2) of the Administrative Procedures Act).
G. Children's Health Protection
This final rule is not subject to E.O. 13045, entitled ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it does not involve decisions on
environmental health risks or safety risks that may disproportionately
affect children.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This action
does not involve technical standards. Therefore, EPA did not consider
the use of any voluntary consensus standards.
I. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local, or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 does not apply to this rule.
J. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the
[[Page 13483]]
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments or EPA consults
with those governments. If EPA complies by consulting, Executive Order
13084 requires EPA to provide to the Office of Management and Budget,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. The final rule offers an
opportunity for areas to voluntarily apply into the conformity pilot
program; it is not a mandatory program. In addition, EPA and DOT are
offering seed money for each area that is selected to be in the pilot
program. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
List of Subjects in 40 CFR Part 93
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Nitrogen Dioxide, Ozone, Particulate matter, Transportation, Volatile
Organic Compounds.
Dated: March 10, 1999.
Carol M. Browner,
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. Subpart A is amended by adding Sec. 93.129 to read as follows:
Sec. 93.129 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 as an
implementation plan revision in accordance with Sec. 51.390 of this
chapter. For the duration of the pilot program, areas selected to
participate in the pilot program must comply with the conformity
requirements of the pilot area's implementation plan revision for
Sec. 51.390 of this chapter and all other requirements in 40 CFR parts
51 and 93 that are not covered by the pilot area's implementation plan
revision for Sec. 51.390 of this chapter. The alternative conformity
requirements in conjunction with any applicable state and/or federal
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. After the three-year duration of
the pilot program has expired, areas will again be subject to all of
the requirements of this subpart and 40 CFR part 51, subpart T, and/or
to the requirements of any implementation plan revision that was
previously approved by EPA in accordance with Sec. 51.390 of this
chapter.
[FR Doc. 99-6654 Filed 3-17-99; 8:45 am]
BILLING CODE 6560-50-U
