[Federal Register Volume 63, Number 174 (Wednesday, September 9, 1998)]
[Rules and Regulations]
[Pages 48106-48109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23330]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM 22-1-7103a; FRL-6152-4]


Approval and Promulgation of Implementation Plan for New Mexico: 
General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action conditionally approves a revision to the New 
Mexico State Implementation Plan (SIP) 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 New Mexico Environment Department 
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 SIPs

[[Page 48107]]

submitted for the nonattainment and maintenance areas within the State 
except for actions within the boundaries 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 Title 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 will 
act on the New Mexico transportation conformity SIP under a separate 
action.
    The EPA is approving this SIP revision under sections 110(k) and 
176 of the Clean Air Act (the Act) on the condition that the agreed-to 
revision is made. The rationale for the approval and other information 
are provided in this document.

DATES: This action is effective on October 9, 1998.

ADDRESSES: Copies of the State 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 Quality Bureau, New Mexico Environment Department, 1190 St. 
Francis Drive, Santa Fe, New Mexico 87502, Telephone: (505) 827-0042.

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

    Section 176(c) of the Act requires that all Federal actions conform 
to an applicable 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.
    As required by section 176(c) of the Act, EPA published the final 
general conformity rules on November 30, 1993 (58 FR 63214), which are 
codified under 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 EPA no later than November 30, 1994.
    On November 17, 1994, the Governor of New Mexico submitted a SIP 
revision in accordance with 40 CFR part 51, subpart W that contained 
the general conformity rule. The SIP revision was adopted by the New 
Mexico Environmental Improvement Board on November 10, 1994, after 
appropriate public participation and interagency consultation. The EPA 
could not approve this submittal because it was not consistent with the 
requirements of 40 CFR part 51. Subsequently, the Governor of New 
Mexico submitted a completely revised SIP on July 18, 1996, which 
revised the rule and included a completely recodified set of general 
conformity regulations. The revised and recodified SIP revision was 
adopted by the New Mexico Environmental Board on June 14, 1996.
    The EPA published a direct final approval action on March 26, 1997 
(62 FR 14332) for approval of the New Mexico general conformity SIP, 
and EPA concurrently published a proposed action on March 26, 1997 (62 
FR 14382), to allow interested parties to submit comments, if any. 
During the public comment period, EPA received one adverse comment from 
FAA. Subsequently, EPA withdrew the direct final approval action on May 
28, 1997 (62 FR 28806).

II. Response to Public Comments

    During the public comment period, EPA received an adverse comment 
from FAA opposing approval of the New Mexico general conformity SIP 
without certain revisions to the reporting requirements of the State 
rule. The following paragraphs present the commenter's remarks and 
EPA's response.
    Comment--The commenter noted that 40 CFR 51.851 allows the State to 
establish more stringent criteria and procedures only if they apply 
equally to non-Federal as well as Federal entities. The commenter 
contended that Section 20 NMAC 2.98.110.C of the State regulation would 
make the State general conformity rule more stringent than the Federal 
rule and, as there are not similar reporting requirements or subsequent 
penalties for non-Federal entities, the section should be removed.
    The commenter also noted that the possible reduction of the FAA's 
emission budget by 50 percent may indirectly impact interstate air 
carrier services. Therefore, according to the commenter, Section 110.C 
of the proposed rules is Federally preempted by Section 41713 of Title 
49 of the United States Code. Further, the commenter argued, the police 
powers of the State with respect to aircraft operations are also 
subject to Federal preemption. The commenter also argued that by its 
potential to reduce flights into and out of the State of New Mexico, 
Section 110.C of the proposed rules violates the Commerce Clause of the 
United States Constitution.
    Response: The EPA has reviewed the FAA comments and examined 
provisions of the Act and general conformity rule pertaining to Section 
110.C of the State rule. The EPA did not find any statutory or 
regulatory provisions similar to Section 110.C. In addition, a review 
by the State of New Mexico Environment Department indicated that the 
provisions of Section 110.C would not be appropriate since the State 
never intended their requirements to be more stringent than the Federal 
requirements. Subsequently, the State agreed to remove Section 110.C 
from its general conformity rule, making the State rule consistent with 
the Federal rule. This action by the State satisfactorily addresses the 
FAA concerns.

III. Conditions and Commitments

    Review of the State rule, the public comment, and the State's 
evaluation of its rule indicated that Section 110.C of the State rule 
makes the New Mexico general conformity rule more stringent than the 
Federal rule. Since the State's original intention was to make the 
general conformity rule requirements, including the provisions of 
Section 110.C, applicable to the Federal actions only, EPA has 
determined that Section 110.C is not consistent with the Federal rule 
40 CFR 51.851 that specifies more stringent criteria and procedures 
must

[[Page 48108]]

apply equally to non-Federal as well as Federal entities.
    After EPA's consultation with the State, the State has agreed to 
correct this inconsistency by removing Section 110.C from its general 
conformity rule. In a letter dated April 22, 1998, from the Chief of 
the Air Quality Bureau, New Mexico Environment Department, to the EPA 
Region 6 Office, the State commits to remove Section 110.C from its 
general conformity rule and submit a SIP revision to EPA within twelve 
(12) months from the date of this notice, September 9, 1999. The EPA 
accepted this commitment from the State because EPA believes that the 
State has shown a good faith effort in complying with the SIP 
requirements, and this minor inconsistency was not intentionally added 
to the regulations. The State's commitment letter will allow EPA to 
proceed with a conditional approval while the State is preparing the 
appropriate corrections for submission of a SIP revision.
    The EPA has determined that New Mexico's general conformity rule 
meets the Federal requirements except the provisions of Section 110.C 
as cited above. Therefore, EPA is conditionally approving this SIP 
revision until the State makes the appropriate corrections and submits 
a SIP revision before the date specified above. If the State does not 
submit a SIP revision for removal of Section 110.C by the date 
specified in this Section of this action, this conditional approval 
will automatically be converted to a disapproval on the date specified 
above and as further discussed in Section IV of this action.

IV. Final Action

    The EPA is conditionally approving a revision to the New Mexico 
general conformity SIP revision based on the rationale elaborated in 
this action. The general conformity rule is applicable to all 
nonattainment and maintenance areas within the State, outside the 
boundaries of Bernalillo County. The EPA has evaluated this SIP 
revision and has determined that the State has fully adopted the 
provisions of the Federal general conformity rule in accordance with 40 
CFR part 51, subpart W, with one exception as noted in Sections II and 
III of this action. The State has undertaken appropriate public 
participation and interagency consultations during development and 
adoption of the rules at the local level.
    The EPA is approving this SIP revision, based on the State's April 
22, 1998, commitment letter and on the condition that the State will 
adopt and submit a revised general conformity rule which will contain 
the corrections detailed in this action (see Sections II and III) 
within 12 months of this final approval action, but not later than 
September 9, 1999. If the State fails to submit a SIP revision, as 
committed in the letter of April 22, 1998, for removal of Section 110.C 
by September 9, 1999, this conditional approval under section 110(k) of 
the Act will automatically be converted to a disapproval on that date, 
and the sanctions clock will begin. If the State does not submit a SIP, 
and EPA does not approve the SIP on which the disapproval was based 
within 18 months of the disapproval, EPA must impose the sanctions 
under section 179 of the Act.

V. Administrative Requirements

A. Executive Orders (E.O.) 12866 and 13045

    The Office of Management and Budget has exempted this regulatory 
action from E.O. 12866, entitled ``Regulatory Planning Review.'' This 
rule is not subject to E.O. 13045, entitled ``Protection of Children 
from Environmental Health Risks and Safety Risks,'' because it is not 
an ``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq., 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This rule will not 
have a significant impact on a substantial number of small entities 
because conditional approvals of SIP submittals 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 this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Act, 
preparation of flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of State action. The Act forbids EPA 
to base its actions concerning SIPs on such grounds. See Union Electric 
Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k) of the Act, based on the State's failure to meet the 
commitment, it will not affect any existing State requirements 
applicable to small entities. Federal disapproval of the State 
submittal does not affect its state-enforceability. Moreover, EPA's 
disapproval of the submittal does not impose a new Federal requirement. 
Therefore, I certify that this disapproval action will not have a 
significant economic impact on a substantial number of small entities 
because it does not remove existing requirements nor does it substitute 
a new Federal requirement.

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State, local, or 
tribal governments in the aggregate; or to private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    The EPA has determined that this approval action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action approves preexisting 
requirements under State or local law, and imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

D. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller

[[Page 48109]]

General of the United States prior to publication of the rule in the 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions 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 9, 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).

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: August 14, 1998.
Jerry Clifford,
Acting Regional Administrator, Region 6.

    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 et seq.

Subpart GG--New Mexico

    2. In Sec. 52.1620(c) the first table is amended by adding a new 
entry in numerical order to read as follows:


Sec. 52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved New Mexico Regulations                                      
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                                                            State                                               
                                                          approval/                                             
          State citation               Title/subject      effective     EPA approval date         Comments      
                                                             date                                               
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          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality         
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Part 98..........................  General Conformity..     08/02/96  September 9, 1998...  Conditional approval
                                                                                             expires on         
                                                                                             September 9, 1999. 
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* * * * *
    3. Section 52.1623 is added to read as follows:


Sec. 52.1623  Conditional approval.

    (a) General Conformity. (1) A letter, dated April 22, 1998, from 
the Chief of Air Quality Bureau New Mexico Environment Department to 
the EPA Regional Office, commits the State to remove Section 110.C from 
its rule for making the State's rule consistent with Federal rule. 
Specifically, the letter states that:

    This letter is regarding our general conformity rule, 20 NMAC 
2.98--Conformity of General Federal Actions to the State 
Implementation Plan. We have been reviewing paragraph 110.C under 
Section 110--Reporting Requirements. This is the paragraph in which 
the Federal Aviation Administration (FAA) had submitted a comment of 
concern to EPA, during EPA's proposed/final approval period for our 
rule. This comment caused EPA to withdraw its approval. The FAA had 
commented that New Mexico was more stringent than EPA, since our 
rule does not apply to non-Federal agencies. Our analysis has 
determined that our inclusion of this paragraph may make our rule 
more stringent than EPA, and should not have been included. The 
paragraph had originally come from a STAPPA/ALAPCO model rule. New 
Mexico had never intended to be more stringent than EPA with regards 
to general conformity. Hence, the State commits to putting 20 NMAC 
2.98 on our regulatory agenda and plan to delete this paragraph 
within one year from the Federal Register publication of final 
notice of conditional approval to New Mexico's general conformity 
SIP.

    (2) If the State ultimately fails to meet its commitment to remove 
this section from its rule within one year of publication of this 
conditional approval, then EPA's conditional action will automatically 
convert to a final disapproval.
    (b) [Reserved]

[FR Doc. 98-23330 Filed 9-8-98; 8:45 am]
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