[Federal Register Volume 66, Number 71 (Thursday, April 12, 2001)]
[Rules and Regulations]
[Pages 18873-18876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8929]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ID-00-001, ID-01-001, FRL-6957-1]


Approval and Promulgation of State Implementation Plans; 
Transportation Conformity: Idaho

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves new 
sections to the Idaho State Implementation Plan (SIP) that contain the 
State's transportation conformity rule and an interim transportation 
conformity rule for the Northern Ada County former nonattainment area 
for particulate matter under ten microns (PM-10). These new sections to 
Rules for the Control of Air Pollution in Idaho (IDAPA) include IDAPA 
sections 58.01.01.563 through IDAPA 58.01.01.574, and IDAPA 
58.01.01.582. These sections were submitted as part of a series of 
revisions to the SIP to EPA on December 6, 2000 and February 9, 2001.

DATES: This direct final rule is effective on June 11, 2001 without 
further notice, unless EPA receives adverse comment by May 14, 2001. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Written comments should be addressed to: Mr. Wayne Elson, 
Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, 
Washington 98101.
    Documents incorporated by reference are available for public 
inspection at the

[[Page 18874]]

Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460. Copies of 
material submitted to EPA may be examined during normal business hours 
at the following locations: EPA, Region 10, Office of Air Quality, 1200 
Sixth Avenue (OAQ-107), Seattle, Washington 98101, and the Idaho 
Department of Environmental Quality, 1420 North Hilton, Boise, Idaho 
83706-1255.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne Elson, Office of Air Quality 
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1463.

SUPPLEMENTARY INFORMATION: The supplementary information is organized 
as follows:

I. What SIP Amendments are We Approving?
II. What is Transportation Conformity?
III. How Does Transportation Conformity Work?
IV. Why Must the State have a Transportation Conformity SIP?
V. What is EPA Approving for Transportation Conformity and Why?
VI. How Did the State Satisfy the Transportation Conformity 
Interagency Consultation Process (40 CFR 93.105)?
VII. Why is EPA Approving an Interim Conformity Rule for the 
Northern Ada County Former Nonattainment Area for PM-10?
VIII. Summary of Action
IX. Administrative Requirements

I. What SIP Amendments Are We Approving?

    The following table outlines the submittal EPA received and is 
approving in this action

------------------------------------------------------------------------
  Date of
 submittal                          Items revised
   to EPA
------------------------------------------------------------------------
 12-6-2000   --Rules for the Control of Air Pollution in Idaho,
              Transportation Conformity, IDAPA 58.01.01.563 through
              IDAPA 58.01.01.574.
  2-9-2001   --Interim Conformity Provisions for Northern Ada County
              Former Nonattainment Area for PM-10, 58.01.01.582.
------------------------------------------------------------------------

II. What Is Transportation Conformity?

    Conformity first appeared in the Clean Air Act's 1977 amendments 
(Pub. L. 95-95). Although the Act did not define conformity, it stated 
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 Act's 1990 Amendments expanded the scope and content 
of the conformity concept by defining conformity to an implementation 
plan. Section 176(c) of the Act defines conformity as conformity to the 
SIP's purpose of eliminating or reducing the severity and number of 
violations of the NAAQS and achieving expeditious attainment of such 
standards. Also, the Act states that no Federal activity will: (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.

III. How Does Transportation Conformity Work?

    The Federal or State Transportation Conformity Rule applies to all 
nonattainment and maintenance areas in the State. The Metropolitan 
Planning Organizations (MPO), the State Departments of Transportation 
(in absence of a MPO), and U.S. Department of Transportation make 
conformity determinations. These agencies make conformity 
determinations on programs and plans such as transportation improvement 
programs, transportation plans, and projects. The MPOs calculate the 
projected emissions for the transportation plans and programs and 
compare those calculated emissions to the motor vehicle emissions 
ceiling established in the SIP. The calculated emissions must be 
smaller than the motor vehicle emissions ceiling for showing a positive 
conformity with the SIP.

IV. Why Must the State Have a Transportation Conformity SIP?

    EPA was required to issue criteria and procedures for determining 
conformity of transportation plans, programs, and projects to a SIP by 
section 176(c) of the Act. The Act also required the procedure to 
include a requirement that each State submit a revision to its SIP 
including conformity criteria and procedures. EPA published the first 
transportation conformity rule in the November 24, 1993, Federal 
Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 
CFR part 93, subpart A. EPA first required the States and local 
agencies to adopt and submit a transportation conformity SIP revision 
by November 25, 1994. EPA revised the transportation conformity rule on 
August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 
15, 1997 (62 FR 43780), April 10, 2000 (65 FR 18911) and it was 
codified under 40 CFR part 51, subpart T and 40 CFR part 93, subpart 
A--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 Laws (62 FR 
43780). EPA's action of August 15, 1997, required the States to change 
their rules and send a SIP revision by August 15, 1998. Idaho submitted 
their transportation rules on December 6, 2000.

V. What Is EPA Approving Today for Transportation Conformity and 
Why?

    EPA is approving the Idaho Transportation Conformity Rule that the 
Director of the Idaho Department of Environmental Quality (IDEQ) 
submitted on December 6, 2000.
    In this submittal, IDEQ has adopted the Federal rules by 
``incorporation by reference'' (except for the interagency consultation 
section 40 CFR 93.105 where they customized the rules for Idaho and 
those sections affected by court decisions subsequent to the Federal 
rule published on August 15, 1997 (62 FR 43780). Sections IDAPA 
58.01.01.107(p) and IDAPA 58.01.01.564 include these exceptions.) 
``Incorporation by Reference'' (IBR) means that the State adopted the 
Federal rules without rewriting the text of the Federal rules but by 
referring to them for inclusion as if they were printed in the state 
regulation. The Federal Transportation Conformity Rule required the 
states to adopt a majority of the Federal rules in verbatim form with a 
few exceptions. The States cannot make their rules more stringent than 
the Federal rules unless the State's rules apply equally to non-federal 
entities as well as Federal entities. The Idaho Transportation 
Conformity Rule is the same as the Federal rule and the State has made 
no additional changes or modifications, with the exception of the 
consultation section. EPA has evaluated this SIP revision and has 
determined that the State has fully adopted the Federal Transportation 
Conformity rules as described in 40 CFR part 51, subpart T and 40 CFR 
part 93, subpart A. Also, the IDEQ has completed and satisfied the 
public participation and comprehensive interagency consultations during 
development and adoption of these rules at the local level. Therefore, 
EPA is approving this SIP revision.

VI. How Did the State Satisfy the Transportation Conformity 
Interagency Consultation Process (40 CFR 93.105)?

    EPA's rule requires the States to develop their own processes and 
procedures for interagency consultation among the Federal, State, and 
local

[[Page 18875]]

agencies and resolution of conflicts meeting the criteria in 40 CFR 
93.105. The SIP revisions must include processes and procedures to be 
followed by the MPO, state and local transportation agencies, and the 
U.S. Department of Transportation (USDOT) in consulting with the State 
and local air quality agencies and EPA before making conformity 
determinations. Also, the transportation conformity SIP revision must 
have processes and procedures for the State and local air quality 
agencies and EPA in coordinating development of applicable SIPs with 
MPOs, transportation agencies, and USDOT. The State developed its own 
consultation rule based on the elements in 40 CFR 93.105, and excluded 
this section from IBR.
    The Idaho consultation rule specifically addresses interagency 
consultation procedures for an Interagency Consultation Committee 
(ICC). Consultation is required for development of implementation plans 
under the Clean Air Act; conformity determinations for plans, projects, 
and programs; and revisions to these documents that affect conformity. 
The ICC consists of the MPO, Idaho Transportation Department (ITD), 
Federal Highway Administration, Federal Transit Administration, IDEQ, 
affected Local Highway Jurisdictions involved in transportation, 
affected Transit agencies, Local Highway Technical Assistance Council 
(LHTAC), Indian Tribal governments with transportation planning 
responsibilities, and the U.S. EPA. Other affected transportation 
agencies are entitled to participate as well. The rule identifies 
actions requiring consultation, ICC member roles, ICC member 
responsibilities, general consultation process, consultation process 
and review procedures, conflict resolution, and public consultation.

VII. Why Is EPA Approving an Interim Conformity Rule for the 
Northern Ada County Former Nonattainment Area for PM-10?

    As mentioned above, the State and Federal Conformity Rules apply to 
all nonattainment and maintenance areas in the State. Northern Ada 
County was designated as a nonattainment area for PM-10 under the Clean 
Air Act Amendments of 1990. In March of 1999, however, EPA revoked the 
nonattainment designation and 1987 PM-10 National Ambient Air Quality 
Standard for this area (64 FR 12257, March 12, 1999). As a result, the 
Federal conformity requirements for PM-10 no longer applied. Soon 
after, a petition for review was filed in the Ninth Circuit Court of 
Appeals to challenge EPA's action revoking the nonattainment 
designation and the PM-10 standard for Northern Ada County (Idaho Clean 
Air Force et al. v. EPA et al. Nos. 99-70289 and 99-70576 (9th Cir)). 
As part of the settlement of this lawsuit, Idaho submitted and EPA is 
taking action on an interim transportation conformity rule (IDAPA 
58.01.01.582) for the area. (See notice of Proposed Settlement for a 
general description of the settlement (66 FR 8229, January 30, 2001). 
Among other things, the interim transportation rule requires that the 
growth in transportation related PM-10 emissions be offset annually in 
the absence of federal transportation conformity requirements in 
Northern Ada County. Specifically, the rule requires the adoption of 
new control measures that would achieve emissions reductions of two 
thousand (2000) kg/day during the initial fiscal year during which 
these provisions apply and a minimum of seven hundred fifty (750) kg/
day (in addition to the reductions required during previous years) 
during each of the subsequent years. This rule applies to Northern Ada 
County for the interim period specified under the settlement.
    EPA approves IDAPA 58.01.01.582 for the Northern Ada County former 
PM-10 nonattainment area because it provides for PM-10 emissions 
reductions that would not otherwise be required for Northern Ada County 
and because it strengthens the PM-10 emissions-related requirements in 
the State's SIP. In addition, this rule reflects an agreement with 
stakeholders, representing environmental, state, and local interests, 
during the negotiation of the settlement of Idaho Clean Air Force, et 
al. v. EPA, et al., indicating widespread support of the rule.

VIII. Summary of Action

    EPA approves new sections to Idaho's State Implementation Plan 
(SIP) that contain the transportation conformity rule for nonattainment 
areas and an interim transportation conformity rule for Northern Ada 
County former PM-10 nonattainment area. These new sections to Rules for 
the Control of Air Pollution in Idaho (IDAPA) include IDAPA sections 
58.01.01.563 through IDAPA 58.01.01.574, and IDAPA 58.01.01.582.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective June 11, 2001 
without further notice unless the Agency receives adverse comments by 
May 14, 2001.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on June 11, 2001 and no 
further action will be taken on the proposed rule.

IX. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.

[[Page 18876]]

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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. 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 General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 11, 2001 unless EPA receives 
adverse written comments by May 14, 2001.
    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 June 11, 2001. 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, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: March 9, 2001.
Ron Kreizenbeck,
Acting Regional Administrator, Region 10.
    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 N--Idaho

    2. Section 52.670 is amended by adding paragraphs (c)(32) and 
(c)(33) to read as follows:


Sec. 52.670  Identification of plan.

* * * * *
    (c) * * *
    (32) On December 6, 2000, the Idaho Department of Environmental 
Quality submitted amendments to State of Idaho's Rules and Regulations 
for the Control of Air Pollution in Idaho as revisions to the Idaho 
state implementation plan as follows: sections 58.01.01.563 through 
58.01.01.574.
    (i) Incorporation by reference.
    (A) Section 58.01.01.563 Transportation Conformity, Section 
58.01.01.564 Incorporation by Reference, Section 58.01.01.565 
Abbreviations, Section 58.01.01.566 Definitions for the Purpose of 
Sections 563 Through 574 and 582, Section 58.01.01.567 Agencies 
Affected by Consultation, Section 58.01.01.568 ICC Member Roles in 
Consultation, Section 58.01.01.569 ICC Member Responsibilities in 
Consultation, Section 58.01.01.570 General Consultation Process, 
Section 58.01.01.571 Consultation Procedures, Section 58.01.01.572 
Final Conformity Determinations by USDOT, Section 58.01.01.573 
Resolving Conflicts, Section 58.01.01.574 Public Consultation 
Procedures.
    (33) On February 9, 2001, the Idaho Department of Environmental 
Quality submitted amendments to State of Idaho's Rules and Regulations 
for the Control of Air Pollution in Idaho as revisions to the Idaho 
state implementation plan as follows:
Section 58.01.01.582
    (i) Incorporation by reference.
    (A) Section 58.01.01.582 Interim Conformity Provisions for Northern 
Ada County Former Nonattainment Area for Northern Ada County Former 
Nonattainment Area for PM-10.

[FR Doc. 01-8929 Filed 4-11-01; 8:45 am]
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