[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Rules and Regulations]
[Pages 48561-48564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23596]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0060a; MT-001-0032a; FRL-7055-4]


Approval and Promulgation of Air Quality Implementation Plans for 
Colorado and Montana: Transportation Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Colorado and Montana State 
Implementation Plans (SIPs) that incorporate consultation procedures 
for transportation conformity. The conformity rules assure that in air 
quality nonattainment or maintenance areas, projected emissions from 
transportation plans and projects stay within the motor vehicle 
emissions ceiling in the SIP. The transportation conformity SIP 
revisions enable the States to implement and enforce conformity 
consultation procedures in regulations for 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. We are approving these SIP revisions under 
sections 110(k) and 176 of the Clean Air Act (Act).

DATES: This rule is effective on November 20, 2001 without further 
notice, unless EPA receives adverse comment by October 22, 2001. If we 
receive adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments may be mailed to: Richard R. Long, 
Director, Air and Radiation Program, Mailcode 8P-AR, United States 
Environmental Protection Agency, Region VIII, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466
    Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the following 
offices:

United States Environmental Protection Agency, Region VIII, Air and 
Radiation Program, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466; and,
United States Environmental Protection Agency, Air and Radiation Docket 
and Information Center, 401 M Street, SW., Washington, DC 20460.

    Copies of the State documents relevant to this action are available 
for public inspection at:

Colorado Department of Public Health and Environment, 4300 Cherry Creek 
Dr. S., Denver, Colorado 80246-1530.
Montana Department of Environmental Quality, Planning, Prevention and 
Assistance Division, 1520 East 6th Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, Air and Radiation 
Program, Mailcode 8P-AR, United States Environmental Protection Agency, 
Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. 
Telephone number: (303) 312-6493.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``our,'' or ``us'' is used, we mean EPA.

Table of Contents

I. Background
    a. What is transportation conformity?
    b. Why must the States submit a transportation conformity SIP?
    c. How does transportation conformity work?
II. Approval of the States' Transportation Conformity Rules
    a. What did the States submit?
    b. What is EPA approving today and why?

[[Page 48562]]

    c. How did the States satisfy the interagency consultation 
process?
    d. Why is EPA not acting on the States' IBR of the Federal rule?
III. Final Action
IV. Administrative Requirements

I. Background

a. What Is Transportation Conformity?

    Conformity first appeared in the Act's 1977 amendments (Public Law 
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 an 
implementation plan's purpose of eliminating or reducing the severity 
and number of violations of the national ambient air quality standards 
(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.

b. Why Must the States Submit a Transportation Conformity SIP?

    We were 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 that each State submit 
a revision to its SIP including conformity criteria and procedures. We 
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. We originally required the 
States and local agencies to adopt and submit a transportation 
conformity SIP revision to us by November 25, 1994. However, we revised 
the transportation conformity rule on August 7, 1995 (60 FR 40098), 
November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 43780), 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). Our action of August 15, 1997, required the States to change 
their rules and submit a SIP revision by August 15, 1998.

c. How Does Transportation Conformity Work?

    The Federal (or State) transportation conformity rule applies to 
all nonattainment and maintenance areas in a State. The Metropolitan 
Planning Organizations (MPOs), the State Departments of Transportation 
(in absence of a MPO), and U.S. Department of Transportation (USDOT) 
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 (the ``emissions 
budget'') for showing positive conformity with the SIP.

II. Approval of the States' Transportation Conformity Rules

a. What Did the States Submit?

    On November 5, 1999, the Governor of Colorado submitted a SIP 
revision that includes revisions to Colorado Regulation No. 10, 
Criteria for Analysis of Conformity, Part B--Conformity to State 
Implementation Plans of Transportation Plans, Programs and Projects 
Developed, Funded or Approved Under title 23 U.S.C. or the Federal 
Transit Act. The Colorado Air Quality Control Commission (AQCC) adopted 
this SIP revision on October 15, 1998 after appropriate public 
participation and interagency consultation.
    On August 26, 1999, the Governor of Montana submitted a SIP 
revision that includes revisions to the Transportation Conformity 
section of its air quality rules (Sub-Chapter 13 of the Administrative 
Rules of Montana 9.2.2). The Montana Board of Environmental Review 
adopted this SIP revision on May 14, 1999 after appropriate public 
participation and interagency consultation. This SIP revision 
superseded an earlier version of the transportation conformity SIP that 
was adopted on August 8, 1996 and submitted on February 21, 1997.

b. What Is EPA Approving Today and Why?

    We are approving the Colorado and Montana transportation conformity 
rules except for the incorporation by reference of 40 CFR Part 93, 
Subpart A, into Colorado Regulation No. 10. The rationale for this 
exclusion is discussed in Section II.D of this action. ``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. EPA 
is not taking action on the States' IBR of the Federal rule for reasons 
discussed below. The effect of this action is that the States' 
consultation procedures will take the place of the general guidelines 
articulated in 40 CFR 93.105, and the remainder of the Federal rule 
will continue to apply for conformity purposes. Each State also adopted 
definitions that supplement, and in some cases, replace the definitions 
in Sec. 93.101 of the Federal conformity rule. We are approving these 
definitions.

c. How Did the States Satisfy the Interagency Consultation Process?

    Our rule requires the States to develop their own processes and 
procedures for interagency consultation among the Federal, State, and 
local agencies and resolution of conflicts meeting the criteria in 40 
CFR Part 93, Sec. 93.105. The SIP revisions must include processes and 
procedures to be followed by the MPO, State DOT, and 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, State DOT, and USDOT.
    The States developed their own consultation rules based on the 
elements in 40 CFR 93.105. We have determined that each State 
adequately included all elements of 40 CFR 93.105 and met the EPA SIP 
requirements.

d. Why Is EPA Not Acting on the States' IBR of the Federal Rule?

    We promulgated the most recent transportation conformity rule on 
August 15, 1997. On March 2, 1999, the United States Court of Appeals 
for the District of Columbia Circuit issued its opinion in 
Environmental Defense Fund v. Environmental Protection Agency, No. 97-
1637. The Court granted the environmental group's petition for

[[Page 48563]]

review and ruled that 40 CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) 
are unlawful and remanded 40 CFR 93.118(e)(1) and 93.120(a)(2) to EPA 
for revision to harmonize these provisions with the requirements of the 
Act. The sections that were included in this decision were:
    (1) 40 CFR 93.102(c)(1) which allowed certain projects for which 
the National Environmental Policy Act (NEPA) process has been completed 
by the DOT to proceed toward implementation without further conformity 
determinations during a conformity lapse,
    (2) 40 CFR 93.118(e) which allowed use of motor vehicle emissions 
budgets (MVEB) in the submitted SIPs after 45 days if EPA had not 
declared them inadequate,
    (3) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a 
disapproved SIP for 120 days after disapproval,
    (4) 40 CFR 93.121(a)(1) which allowed the nonfederally funded 
projects to be approved if included in the first three years of the 
most recently conforming transportation plan and transportation 
improvement programs, even if conformity status is currently lapsed, 
and
    (5) 40 CFR 93.124(b) which allowed areas to use a submitted SIP 
that allocated portions of a safety margin to transportation activities 
for conformity purposes before EPA approval.
    Since the States were required to submit transportation conformity 
SIPs not later than August 15, 1998, and include those provisions in 
verbatim form, Colorado's SIP revision includes all those sections 
which the Court ruled unlawful or remanded for consistency with the 
Act. Montana's transportation conformity SIP was adopted and submitted 
subsequent to the court's decision. Montana attempted to address the 
court decision by not submitting for IBR the sections of the Federal 
rule affected by the lawsuit. However, Montana's submittal is not 
consistent with EPA's most recent interpretations of the sections of 
the rule affected by the court decision.
    Because the court decision has invalidated several sections of the 
rule, we believe that it would be reasonable to exclude the States' IBR 
of the rule from this SIP approval action. As a result, we are not 
taking any action on the IBR of 40 CFR Part 93, Subpart A into the 
State conformity rules. Conformity determinations should comply with 
the relevant requirements of the statutory provisions of the Act 
underlying the court's decision on these issues, and with the remaining 
sections of the Federal rule not affected by the court decision. (EPA 
issued guidance on May 14, 1999 on how to implement these provisions in 
the interim prior to EPA amendment of the Federal transportation 
conformity rules.) Once these Federal rules have been revised, agencies 
performing conformity determinations in Colorado and Montana should 
comply with the requirements of the revised Federal rule until 
corresponding provisions of the Colorado and Montana conformity SIPs 
have been amended and approved by EPA. Since EPA is not acting on the 
States' IBR of any sections of the Federal conformity rule, the Federal 
rule, along with EPA's guidance for implementing the court decision, 
will continue to apply for conformity determinations, with the 
exception of the consultation provisions of the State programs which we 
are approving today which will apply in lieu of the consultation 
provision of the Federal rule.

III. Final Action

    In this action, we are approving revisions to the Colorado and 
Montana transportation conformity SIPs. These SIP revisions were 
submitted by the Governor of Colorado on November 5, 1999 and by the 
Governor of Montana on August 26, 1999. We are publishing this rule 
without prior proposal because we view this as a noncontroversial 
amendment and anticipate no adverse comments. However, in the 
``Proposed Rules'' section of today's Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
approve the SIP revisions if adverse comments are filed. This rule will 
be effective on November 20, 2001 without further notice unless we 
receive adverse comments by October 22, 2001. If we receive adverse 
comments, we will publish a timely withdrawal of the direct final rule, 
in the Federal Register, informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. If no such comments are received, the public is advised 
that this rule will be effective on November 20, 2001, and no further 
action will be taken on the proposed rule. Please note that if we 
receive adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of an adverse comment.

IV. 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.
    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

[[Page 48564]]

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. section 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. 
section 804(2). This rule will be effective November 20, 2001 unless 
EPA receives adverse written comments by October 22, 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 November 20, 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: September 5, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
    Chapter I, title 40, part 52, of the Code of Federal Regulations is 
amended to read 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 G--Colorado

    2. Section 52.320 is amended by adding paragraph (c)(92) to read as 
follows:


Sec. 52.320  Identification of plan.

* * * * *
    (c) * * *
    (92) On November 5, 1999, the Governor of Colorado submitted 
Regulation No. 10, Criteria for Analysis of Conformity, Part B--
Conformity to State Implementation Plans of Transportation Plans, 
Programs and Projects Developed, Funded or Approved Under Title 23 
U.S.C. or the Federal Transit Act, that incorporates conformity 
consultation requirements implementing 40 CFR Part 93, Subpart A into 
State regulation.
    (i) Incorporation by reference.
    (A) Regulation No. 10, Criteria for Analysis of Conformity, Part 
B--Conformity to State Implementation Plans of Transportation Plans, 
Programs and Projects Developed, Funded or Approved Under Title 23 
U.S.C. or the Federal Transit Act, 5 CCR 1001-12, as adopted October 
15, 1998, effective November 30, 1998.
* * * * *

Subpart BB--Montana

    3. Section 52.1370 is amended by adding paragraph (c)(47) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (47) On August 26, 1999, the Governor of Montana submitted 
Administrative Rules of Montana Sub-Chapter 13, ``Conformity'' that 
incorporates conformity consultation requirements implementing 40 CFR 
Part 93, Subpart A into State regulation.
    (i) Incorporation by reference.
    (A) Administrative Rules of Montana 17.8.1301, 17.8.1303, and 
17.8.1305; through 1313, effective June 4, 1999; and 17.8.1304 
effective August 23, 1996.
* * * * *
[FR Doc. 01-23596 Filed 9-20-01; 8:45 am]
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