[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Rules and Regulations]
[Pages 56241-56244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27682]



=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-27-1-7208a; FRL-5322-6]


Approval and Promulgation of Implementation Plan for New Mexico--
Albuquerque/Bernalillo County: Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: This document approves a revision to the New Mexico State 
Implementation Plan (SIP) for the Albuquerque/Bernalillo County 
nonattainment area that contains transportation conformity rules. The 
transportation conformity SIP revision enables the Albuquerque/
Bernalillo County Air Quality Control Board to implement and enforce 
the Federal transportation conformity requirements at the local level 
in accordance with 40 CFR part 51, subpart T--Conformity to State or 
Federal Implementation Plans of Transportation Plans, Programs, and 
Projects Developed, Funded or Approved Under Title 23 U.S.C. or the 
Federal Transit Act. The final approval action is limited only to 40 
CFR part 51, subpart T (Transportation Conformity), and the SIP 
revision submitted under 40 CFR part 51, subpart W, conformity of 
general Federal actions, will be addressed in a separate document. The 
EPA is approving this SIP revision under section 110(k) of the Clean 
Air Act (CAA). The rationale for the approval action and other 
information are provided in this document.

DATES: This action is effective on January 8, 1996, unless notice is 
postmarked by December 8, 1995 that someone wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register (FR).

ADDRESSES: Copies of the State's submittal and other relevant 
information are available for inspection during normal business hours 
at the following locations. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

    Air Planning Section (6PDL), Multimedia Planning and Permitting 
Division, Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202, Telephone: (214) 665-7214.
    Air Pollution Control Division, Albuquerque Environmental Health 
Department, One Civic Plaza, Albuquerque, New Mexico 87103, 
Telephone: (505) 768-2600.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P.E.; Air Planning 
Section (6PDL), Multimedia Planning and Permitting Division, 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

    Conformity provisions first appeared in the CAA amendments of 1977 
(Public Law 95-95). Although these provisions did not define 
conformity, they provided that no Federal department could engage in, 
support in any way or provide financial assistance for, license or 
permit, or approve any activity which did not conform to a SIP which 
has been approved or promulgated.
    The CAA Amendments of 1990 expanded the scope and content of the 
conformity provisions by defining conformity to an implementation plan. 
Conformity is defined in section 176(c) of the CAA as conformity to the 
SIP's purpose of eliminating or reducing the severity and number of 
violations of the National Ambient Air Quality Standards and achieving 
expeditious attainment of such standards, and that such activities will 
not: (1) Cause or contribute to any new violation of any standard in 
any area, (2) increase the frequency or severity of any existing 
violation of any standard in any area, or (3) delay timely attainment 
of any standard or any required interim emission reductions or other 
milestones in any area.
    The CAA requires EPA to promulgate criteria and procedures for 
determining conformity of all Federal actions (transportation and 
general) to a SIP. The EPA published the final transportation 
conformity rules in the November 24, 1993, Federal Register and 
codified them at 40 CFR Part 51 Subpart T - Conformity to State or 
Federal Implementation Plans of Transportation Plans, Programs, and 
Projects Developed, Funded or Approved Under Title 23 U.S.C. or the 
Federal Transit Act. All other Federal actions (actions other than 
those under Title 23 U.S.C. or the Federal Transit Act) were addressed 
in a separate Federal Register notice. The conformity rules require the 
States and local agencies to adopt and submit a transportation 
conformity SIP revision to the EPA not later than November 24, 1994. 
This notice does not address the conformity requirements of general 
Federal actions (40 CFR Part 51 Subpart W), and EPA will take action on 
these SIPs in a separate notice. 

[[Page 56242]]


II. Evaluation of State's Submission

    In response to the Federal Register notice of November 24, 1993, 
the Governor of New Mexico submitted a SIP revision which included the 
transportation conformity rules adopted by the Albuquerque/Bernalillo 
County Air Quality Control Board. Currently, the Albuquerque/Bernalillo 
area is a nonattainment for carbon monoxide and has requested 
redesignation to attainment; however, the transportation conformity SIP 
revision is applicable to all nonattainment and maintenance 
classifications under the CAA. It must be noted that the final 
transportation conformity rule requires that the majority of the 
Federal rules be incorporated in verbatim form with a few exceptions, 
however, the State rules can not be more stringent than the Federal 
rules. The consultation section of the rule (40 CFR 51.402) is among 
these exceptions and the State and local (where applicable) air quality 
agencies are required to develop their own consultation rules. The 
following paragraphs present EPA's review and evaluation of the 
Albuquerque/Bernalillo County nonattainment area SIP revision.

A. Development of Consultation Rules

    The Federal rules require the SIP's to include processes and 
procedures for interagency consultation among the Federal, State, and 
local agencies and resolution of conflicts in accordance with the 
criteria set forth in 40 CFR Part 51 Section 51.402. Specifically, to 
implement the requirements of Section 51.402, the SIP revisions must 
include processes and procedures to be undertaken by Metropolitan 
Planning Organizations (MPO), State Department of Transportation, and 
the U.S. Department of Transportation (USDOT) with State and local air 
quality agencies and EPA before making conformity determinations, and 
by State and local air quality agencies and EPA with MPO's, State 
Departments of Transportation, and USDOT in developing applicable SIPs.
    In order to satisfy these requirements, Albuquerque/Bernalillo 
County, the Albuquerque Environmental Health Department (air agency), 
established an ad hoc multi-agency committee which included 
representatives from the State air quality agency, State DOT, USDOT, 
MPO's, EPA, the local air quality agency, local transportation 
agencies, and local transit operators. The Albuquerque Environmental 
Health Department served as the lead agency in coordinating the multi-
agency efforts for developing the consultation rules. The committee met 
approximately on a biweekly basis and drafted consultation rules by 
using the requirements of 40 CFR 51.402 and 23 CFR 450, and by 
integrating the local procedures and processes into the final 
consultation rule. The consultation rule developed through this process 
is unique to the Albuquerque/Bernalillo County nonattainment area. The 
Albuquerque/Bernalillo County SIP revision has adequately addressed all 
provisions of 40 CFR 51.402 and has met the EPA SIP requirements.

B. Transition From the Interim Period to the Control Strategy Period; 
40 CFR 51.448

    The EPA promulgated an interim final rule on February 8, 1995, that 
amended certain provisions of 40 CFR 51.448 in the Federal 
transportation conformity rules. The interim final rule aligned the 
timing of certain transportation conformity consequences with the 
imposition of the CAA highway sanctions for a six-month period. The 
amendment delays the lapse in conformity status, which would otherwise 
prevent approval of new highway and transit projects, and allow States 
more time to prevent the lapse by submitting complete control strategy 
implementation plan. Since the States were required to submit 
transportation conformity SIPs not later than November 24, 1994, the 
State's (Albuquerque/Bernalillo County's) SIP revision does not include 
the amendment of February 8, 1995. Lack of amended sections of 40 CFR 
51.448 in the Albuquerque/Bernalillo County's rules makes the local 
rules more stringent than the Federal rules. However, the EPA believes 
that the Albuquerque Environmental Health Department has complied with 
the SIP requirements and has adopted the Federal rules which were in 
effect at the time that the transportation conformity SIP was due to 
the EPA. The agency in no way intentionally adopted more stringent 
rules than the Federal rules in developing its transportation 
conformity SIP. Therefore, it would be unreasonable to discredit the 
agency's good faith effort in submitting the transportation conformity 
SIP on time and disapprove this portion of the State's SIP. Since the 
Albuquerque Environmental Health Department will be required to submit 
a SIP revision in the near future to incorporate the amended portions 
of the Federal transportation conformity rules, the EPA believes that 
it would be reasonable to exclude the section of the local rules which 
correspond to 40 CFR 51.448, from this SIP approval action. As a 
result, the EPA is not taking any action on section 42.11 of the 
Albuquerque/Bernalillo County rules.

C. Evaluation of Albuquerque/Bernalillo County Rules

    The Albuquerque Environmental Health Department (AEHD) is the lead 
air agency for SIP development, adoption, and enforcement in the 
Bernalillo County carbon monoxide nonattainment area. The New Mexico 
Air Quality Control Act (NMAQCA) allows, by ordinance, ``A'' class 
counties (as defined in the New Mexico statute) and any municipality 
within an ``A'' class county to create a municipal, county, or joint 
air quality board to administer and enforce the provisions of the 
NMAQCA. The City of Albuquerque and Bernalillo County have jointly 
established such a board, Albuquerque/Bernalillo County Air Quality 
Control Board, for administration and enforcement of NMAQCA because 
Bernalillo County is an ``A'' class county. The AEHD is the regulatory 
and administrative agency for implementing and enforcing the air 
quality control regulations of the Board in the Bernalillo County 
nonattainment area.
    On December 19, 1994, the Governor of New Mexico submitted a SIP 
revision on behalf of Albuquerque/Bernalillo County in compliance with 
40 CFR Part 51 Subpart T that contained the transportation conformity 
and its consultation rule. The SIP revision was adopted by the 
Albuquerque/Bernalillo County Air Quality Control Board on November 9, 
1994, after appropriate public participation and interagency 
consultation. The AEHD has adopted the Federal transportation 
conformity rules in verbatim form except for the interagency 
consultation rule which has been developed in the manner described 
earlier in this notice. The AEHD has made limited changes and has added 
additional definitions, where necessary, to create consistency with the 
local processes, procedures, and area-specific terms or names. These 
minor modifications and additional clarifications do not in any way 
alter the effect, implementation and enforcement of the conformity 
rules in the Bernalillo County nonattainment area. The EPA has 
determined that AEHD's transportation conformity rule meets the Federal 
requirements except as provided in section II(B) of this notice, and 
EPA is approving this SIP revision.

III. Final Approval Action

    The EPA is approving the transportation conformity SIP revision for 
the Albuquerque/Bernalillo County nonattainment area except for section 


[[Page 56243]]
42.11. The EPA is not taking any action on section 42.11 of the 
Albuquerque/Bernalillo County rules as discussed in detail in section 
II(B) of this notice. The EPA has evaluated this SIP revision and has 
determined that the Albuquerque/Bernalillo County Air Quality Control 
Board has fully adopted the provisions of the Federal transportation 
conformity rules in accordance with 40 CFR Part 51 Subpart T. The 
appropriate public participation and comprehensive interagency 
consultations have been undertaken during development and adoption of 
the rules by the Albuquerque Environmental Health Department at the 
local level.
    The EPA is publishing this action without prior proposal because 
the EPA views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective on January 8, 1996, unless adverse or critical comments are 
received by December 8, 1995. If the EPA receives such comments, this 
action will be withdrawn before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on this action serving as a proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting on this action should do so at this time. If 
no such comments are received on this action, the public is advised 
that this action will be effective January 8, 1996.
    The EPA has reviewed this transportation conformity SIP for 
conformance with the provisions of the CAA and has determined that this 
action conforms to those requirements.

IV. Administrative Requirements

A. Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, under 5 U.S.C. 605(b), the EPA may certify that the rule 
will not have a significant impact on a substantial number of small 
entities (see 46 FR 8709). Small entities include small businesses, 
small not-for-profit enterprises, and governmental entities with 
jurisdiction over populations of less than 50,000.
    Nothing in this action shall be construed as permitting, allowing, 
or establishing a precedent for any future request for a revision to 
any SIP. Each request for revision to the SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on small entities. Moreover, due to the 
nature of the Federal-State relationship under the CAA, preparation of 
a regulatory flexibility analysis would constitute Federal inquiry into 
the economic reasonableness of State action. The CAA forbids EPA from 
basing its actions concerning SIPs on such grounds. Union Electric Co. 
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section 
7410(a)(2). The Office of Management and Budget has exempted this 
action from review under Executive Order 12866.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 8, 1996. Filing a petition for 
reconsideration of this final rule by the Regional Administrator does 
not affect the finality of this rule for purposes of judicial review; 
nor does it extend the time within which a petition for judicial review 
may be filed, or postpone the effectiveness of this rule. This action 
may not be challenged later in proceedings to enforce its requirements 
(see section 307(b)(2)).

B. 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.
    Through submission of this SIP or plan revision approved in this 
action, the State and any affected local or tribal governments have 
elected to adopt the program provided for under section 175A of the 
Clean Air Act. The rules and commitments approved in this action may 
bind State, local, and tribal governments to perform certain actions 
and also require the private sector to perform certain duties. To the 
extent that the rules and commitments being approved by this action 
will impose or lead to the imposition of any mandate upon the State, 
local, or tribal governments, either as the owner or operator of a 
source or as a regulator, or would impose or lead to the imposition of 
any mandate upon the private sector, EPA's action will impose no new 
requirements; such sources are already subject to these requirements 
under State law. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action. 
Therefore, EPA has determined that 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.

C. Procedural Information

    This action has been classified as a Table Three action for 
signature by the Regional Administrator under the procedures published 
in the Federal Register on January 19, 1989 (54 FR 2214-2225), as 
revised by a July 10, 1995, memorandum from Ms. Mary Nichols, Assistant 
Administrator for Air and Radiation. The Office of Management and 
Budget has exempted this regulatory action from Executive Order 12866 
review.

D. Executive Order 12866

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the 
EPA must determine whether the regulatory action is ``significant'', 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. It has been determined 
that this rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866, and is therefore not subject to OMB 
review.

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon monoxide, Environmental protection, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Transportation conformity, 
Transportation-air quality planning, Volatile organic compounds.

    Dated: October 20, 1995.
A. Stanley Meiburg,
Acting Regional Administrator.

    Title 40, part 52, of the Code of Federal Regulations is amended to 
read as follows: 

[[Page 56244]]


PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

    2. Section 52.1620 is amended by adding paragraph (c)(59) to read 
as follows:


Sec. 52.1620  Identification of plan.

* * * * *
    (c) * * *
    (59) A revision to the New Mexico State Implementation Plan for 
Transportation Conformity: Albuquerque/Bernalillo County Air Quality 
Control Regulation (AQCR) No. 42 ``Transportation Conformity'' as 
adopted on November 9, 1994 and filed with the State Records and 
Archives Center on December 16, 1994, was submitted by the Governor on 
December 19, 1994. No action is taken on AQCR No. 42 Section 11.
    (i) Incorporation by reference.
    (A) Albuquerque/Bernalillo County Air Quality Control Regulation 
(AQCR) No. 42 ``Transportation Conformity'' as adopted on November 9, 
1994 and filed with the State Records and Archives Center on December 
16, 1994. No action is taken on AQCR No. 42 Section 11.
    (ii) Additional material. None.

[FR Doc. 95-27682 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P