[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48407-48409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23267]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM29-1-7272a; FRL-5549-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves the Albuquerque/Bernalillo County State 
Implementation Plan (SIP) revision that contains regulations for 
implementing and enforcing the general conformity rules which the EPA 
promulgated on November 30, 1993 (58 FR 63214). Specifically, the 
general conformity rules enable the Albuquerque/Bernalillo County Air 
Quality Control Board to review conformity of all Federal actions (see 
40 CFR part 51, subpart W--Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans) with the control 
strategy SIP's submitted for the nonattainment and maintenance areas 
within the boundary of Bernalillo County. This approval action is 
intended to streamline the conformity process and allow direct 
consultation among agencies at the local levels. The Federal actions by 
the Federal Highway Administration and Federal Transit Administration 
(under 23 U.S.C. or the Federal Transit Act) are covered by the 
transportation conformity rules under 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 EPA approved the Albuquerque/
Bernalillo County transportation conformity SIP on November 8, 1995 (60 
FR 56241).
    The EPA is approving this SIP revision under sections 110(k) and 
176 of the Clean Air Act (the Act). The rationale for the approval and 
other information are provided in this document.

DATES: This action is effective on November 12, 1996, unless adverse or 
critical comments are received by October 15, 1996. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Copies of the Albuquerque/Bernalillo County General 
Conformity SIP 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 and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.
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 Act as amended in 1977 
(Pub. L. 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 that has been 
approved or promulgated for the nonattainment or maintenance areas.
    The 1990 Amendments of the Act 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 Act 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 Act requires EPA to promulgate criteria and procedures for 
determining conformity of all other Federal actions in the 
nonattainment or maintenance areas (actions other than those under 
Title 23 U.S.C. or the Federal Transit Act ) to a SIP. The criteria and 
procedures developed for this purpose

[[Page 48408]]

are called ``general conformity'' rules. The rules pertaining to 
actions under Title 23 U.S.C. or the Federal Transit Act were published 
in a separate Federal Register notice on November 24, 1993 (see 58 FR 
62188). The EPA published the final general conformity rules on 
November 30, 1993 (58 FR 63214) and codified them at 40 CFR part 51, 
subpart W--Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans. The general conformity rules require 
the States and local air quality agencies (where applicable) to adopt 
and submit a general conformity SIP revision to the EPA not later than 
November 30, 1994.

II. Evaluation of State's (Albuquerque/Bernalillo County) 
Submission

    In response to the Federal Register notice of November 30, 1993, 
the Governor of New Mexico submitted a SIP revision which included the 
general conformity rules adopted by the Albuquerque/Bernalillo County 
Air Quality Control Board. Currently, the Albuquerque/Bernalillo area 
is nonattainment for carbon monoxide and has requested redesignation to 
attainment; however, the general conformity SIP revision is applicable 
to all nonattainment and maintenance classifications under the Act. The 
following paragraphs present the results of EPA's review and evaluation 
of the Albuquerque/Bernalillo County nonattainment area SIP revision.
    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, namely 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 the Albuquerque/Bernalillo County Air Quality 
Control Board in compliance with 40 CFR part 51 subpart W that contains 
the general conformity rules. The SIP revision was adopted by the Board 
on November 9, 1994, after appropriate public participation and 
interagency consultation. The AEHD adopted the Federal general 
conformity rules verbatim with the exception of limited changes and 
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 Federal 
conformity requirements in the Bernalillo County nonattainment area. 
The EPA has determined that AEHD's general conformity rule meets the 
Federal requirements and EPA is approving this SIP revision.

III. Final Action

    The EPA is approving the general conformity SIP revision for the 
Albuquerque/Bernalillo County nonattainment area as submitted by the 
Governor of New Mexico on December 19, 1994. The EPA has evaluated this 
SIP revision and has determined that Albuquerque/Bernalillo County 
nonattainment area has fully adopted the provisions of the Federal 
general conformity rules in accordance with 40 CFR part 51 subpart W. 
The appropriate public participation and comprehensive interagency 
consultations have been undertaken during development and adoption of 
these 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 November 12, 1996, unless adverse or critical comments 
concerning this action are submitted and postmarked by October 15, 
1996. 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 concerning this 
action 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 November 12, 1996.

IV. Administrative Requirements

A. Regulatory Flexibility

    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.
    SIP approvals under section 110 and subchapter I, part D of the Act 
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 Act, preparation of 
a regulatory flexibility analysis would constitute Federal inquiry into 
the economic reasonableness of State action. The Act 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).

B. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995, signed into law on March 22, 1995, the 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 sections 110 and 176 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

[[Page 48409]]

of any mandate upon the private sector, the 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, the 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. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the 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 
General Accounting Office prior to 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).

D. 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.

E. Petition for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 12, 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)).
    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.

List of Subjects in 40 CFR Part 52

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

    Dated: July 24, 1996.
Allyn M. Davis,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

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)(60) to read 
as follows:


Sec. 52.1620   Identification of Plan.

* * * * *
    (c) * * *
    (60) A revision to the New Mexico State Implementation Plan for 
General Conformity: Albuquerque/Bernalillo County Air Quality Control 
Regulation No. 43 ``General 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.
    (i) Incorporation by reference.
    (A) Albuquerque/Bernalillo County Air Quality Control Regulation 
No. 43 ``General Conformity'' as adopted on November 9, 1994, and filed 
with the State Records and Archives Center on December 16, 1994.

[FR Doc. 96-23267 Filed 9-12-96; 8:45 am]
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