[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62392-62395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25287]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT-001-0046a; FRL-7383-2]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Montana: General Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving revisions to the 
Montana State Implementation Plan (SIP) submitted by the Governor of 
Montana on August 26, 1999. The revisions adopt Administrative Rules of 
Montana (ARM), Sub-Chapter 14, ``Conformity of General Federal 
Actions,'' Sections 17.8.1401 and 17.8.1402, into the SIP. The rules 
require conformity of general Federal actions to assure that actions of 
federal agencies that take place in nonattainment or maintenance areas, 
other than transportation actions, are consistent with the goals of the 
Montana SIP. EPA is taking this action under section 110 and 176 of the 
Clean Air Act (Act).

DATES: This rule is effective on December 6, 2002, without further 
notice, unless EPA receives adverse comment by November 6, 2002. 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,
Air and Radiation Docket and Information, Room B-108, United States 
Environmental Protection Agency, (Mail Code 6102T), 1301 Constitution 
Avenue NW, Washington, DC 20460.

    Copies of the State documents relevant to this action are available 
for public inspection at: Montana Department of Environmental Quality, 
Planning, Prevention and Assistance

[[Page 62393]]

Division, 1520 East 6th Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Jeffrey Kimes, 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) 312-6445.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``our,'' 
or ``us'' refers to the United States Environmental Protection Agency.

Table of Contents

I. Background
    a. What Is General Conformity?
    b. Who Must Follow General Conformity?
    c. How Is General Conformity Different from Transportation 
Conformity?
    d. Why Is Montana Required To Create Its Own General Conformity 
Rule?
II. Approval of the State's Transportation Conformity Rules
    a. What Did the State Submit?
    b. What Is EPA Approving Today and Why?
III. Final Action
IV. Consideration of Clean Air Act Section 110(l)
V. Administrative Requirements

I. Background

a. What Is General Conformity?

    The conformity rules assure that in air quality nonattainment or 
maintenance areas projected emissions stay within the emissions ceiling 
in the SIP. The rules for conformity of general Federal actions assure 
that actions of Federal agencies that take place in nonattainment or 
maintenance areas, other than transportation actions, are consistent 
with the Montana SIP. Conformity first appeared in the 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 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. Who Must Follow General Conformity?

    All Federal government agencies must follow The General Conformity 
rules. The General Conformity rules establish emissions thresholds for 
requiring a conformity analysis. The Federal agency taking the action 
is required to perform the conformity analysis. We published the first 
General Conformity rule on November 30, 1993 (58 FR 63214) and it was 
codified at 40 CFR part 93, subpart B.

c. How Is General Conformity Different From Transportation Conformity?

    Section 176(c)(A) of the Act requires us to issue criteria and 
procedures for determining conformity of all Federal actions to 
applicable SIPs. 40 CFR part 93, subpart A spells out criteria and 
procedures for determining conformity of all Federal actions related to 
transportation projects funded or approved under Title 23 U.S.C. or the 
Federal Transit Laws (49 U.S.C. Chapter 53). 40 CFR part 93, subpart B 
provides criteria and procedures for determining the conformity of all 
other Federal actions to applicable SIPs. Examples of Federal actions 
covered by this rule may include but are not limited to reuse of 
military bases, private construction on Federal land, granting of 
permits, leasing of Federal land, and construction of Federal office 
buildings.

d. Why Is Montana Required To Create Its Own General Conformity Rule?

    The Act requires each State to develop rules to implement the 
General Conformity rule. (See 40 CFR 93.151) EPA believes that State 
and local agencies have the primary responsibility for achieving the 
clean air goals established in the Act. Therefore, each State must 
submit a revised SIP that includes General Conformity criteria and 
procedures that are consistent with General Conformity rule. These 
criteria require that State rules must be at least as stringent as the 
requirements specified in EPA's General Conformity rule. Furthermore, 
State rules can only be more stringent if they apply equally to Federal 
and non-Federal entities.

II. Approval of the States' Transportation Conformity Rules

a. What Did the State Submit?

    Section 110(k) of the Act addresses our actions on submissions of 
revisions to a SIP. The Act requires States to observe certain 
procedural requirements in developing SIP revisions for submission to 
us. Section 110(a)(2) of the Act requires that each SIP revision be 
adopted after reasonable notice and public hearing. This must occur 
prior to the revision being submitted by a State to us.
    On August 26, 1999, the Governor of Montana submitted a SIP 
revision that adopts Administrative Rules of Montana (ARM), Sub-Chapter 
14, ``Conformity of General Federal Actions,'' Sections 17.8.1401 and 
17.8.1402. The Montana Board of Environmental Review adopted this SIP 
revision at a public hearing on May 14, 1999 after appropriate public 
participation and interagency consultation and it became effective in 
the ARM as State law on June 4, 1999.
    We have evaluated the Governor's submittal and have determined that 
the State met the requirements for reasonable notice and public hearing 
under section 110(a)(2) of the Act. By operation of law under section 
110(k)(1)(B) of the Act, the Governor's August 26, 1999, submittal 
became complete on February 26, 2000.

b. What Is EPA Approving Today and Why?

    We are approving the Administrative Rules of Montana (ARM), Sub-
Chapter 14, ``Conformity of General Federal Actions,'' Sections 
17.8.1401 and 17.8.1402 submitted by the Governor of Montana on August 
26, 1999. The Montana Board of Environmental Review adopted this SIP 
revision at a public hearing on May 14, 1999 after appropriate public 
participation and interagency consultation and it became effective in 
the ARM as State law on June 4, 1999. The Montana rules are consistent 
with the Federal General Conformity rules.
    Montana incorporated 40 CFR part 93, subpart B into the State 
rules. Montana modified definitions found in 40 CFR part 93, subpart B 
and incorporated them into the State rule. The definitions of ``MPO'' 
(Metropolitan Planning Organization) and ``state air quality agency'' 
were modified to incorporate meaning specific to Montana. Montana 
incorporated 40 CFR 93.153 and 93.160 with modifications to provide 
language consistent with a State rule rather than a Federal rule. We 
agree with these minor changes. It should be noted that Administrative 
Rules of Montana (ARM)

[[Page 62394]]

Section 17.8.1402, a subject of this action, references ARM Section 
17.8.1302 which we did not act on in a previous Federal Register action 
(66 FR 48561, September 21, 2001). ARM 17.8.1302 includes an 
incorporation by reference (IBR) of 40 CFR part 93, subpart A. EPA 
excluded ARM Section 17.8.1302 because of the IBR. The rationale for 
not acting on ARM 17.8.1302 is discussed in a separate action (66 FR 
48561, September 21, 2001).

III. Final Action

    In this action, we are approving the adoption of ARM, Sub-Chapter 
14, ``Conformity of General Federal Actions,'' Sections 17.8.1401 and 
17.8.1402 to the Montana SIP. This SIP revision was submitted 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 revision if adverse comments are filed. This rule will 
be effective on December 6, 2002, without further notice unless we 
receive adverse comments by November 6, 2002. 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 December 6, 2002, 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. Consideration of Clean Air Act Section 110(l)

    Section 110(l) of the Act states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable progress towards 
attainment of a National Ambient Air Quality Standard (NAAQS) or any 
other applicable requirements of the Act. This SIP revision is 
consistent with Federal requirements and does not interfere with any 
applicable requirements of the Act. Therefore, we conclude that our 
approval of ARM, Sub-Chapter 14, ``Conformity of General Federal 
Actions,'' Sections 17.8.1401 and 17.8.1402 meets the intent of section 
110(l) of the Act.

V. 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
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). This action also does not have Federalism 
implications because it does not 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). This action 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 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (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. 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).
    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 December 6, 2002. 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.


[[Page 62395]]


    Dated: September 12, 2002.
Jack 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 BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(56) to read 
as follows:


Sec.  52.1370  Identification of plan.

* * * * *
    (c) * * *
    (56) On August 26, 1999, the Governor of Montana submitted 
Administrative Rules of Montana Sub-Chapter 14, ``Conformity of General 
Federal Actions'' that incorporates conformity of general federal 
actions to state or federal implementation plans, implementing 40 CFR 
part 93, subpart B into State regulation.
    (i) Incorporation by reference.
    (A) Administrative Rules of Montana 17.8.1401, and 17.8.1402 
effective June 4, 1999.

[FR Doc. 02-25287 Filed 10-4-02; 8:45 am]
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