[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Rules and Regulations]
[Pages 78983-78987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32549]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NC-93; NC-101-200122a; FRL-7402-6]


Approval and Promulgation of Implementation Plans North Carolina: 
Approval of Revisions to North Carolina State Implementation Plan: 
Transportation Conformity Rule and Interagency Memorandum of Agreements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a revision to the North Carolina State 
Implementation Plan (SIP) with the exception of one state regulation 
pertaining to triggers. The revision contains the transportation 
conformity rule pursuant to the Clean Air Act as amended in 1990 (Act) 
and seven memoranda of agreements that establish procedures for 
consultation as part of the transportation conformity provisions. The 
transportation conformity rule assures that projected emissions from 
transportation plans, improvement programs and projects in air quality 
nonattainment or maintenance areas stay within the motor vehicle 
emissions ceiling contained in the SIP. The transportation conformity 
SIP revision enables the State to implement and enforce the Federal 
transportation conformity requirements at the state level per 
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. of the Federal Transit Laws. This EPA 
approval action streamlines the conformity process to allow direct 
consultation among agencies at the local level. This final approval 
action is limited to requirements for Transportation Conformity. 
Rationale for approving this SIP revision is provided in the 
Supplemental Information section of this action.

DATES: This direct final rule is effective on February 25, 2003, 
without further notice, unless EPA receives adverse comment before 
January 27, 2003. If adverse comments are received, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that this rule will not take effect.

ADDRESSES: All comments should be addressed to: Kelly Sheckler at the 
EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, 
Georgia 30303-8960.
    Copies of the State submittal(s) are available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Kelly Sheckler, 404/
562-9042.
    North Carolina Department of Environment and Natural Resources, 
2728 Capital Boulevard, Raleigh, North Carolina 27604.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler at 404/562-9042, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION: Outlined below are the contents of this 
document:

I. Background
    A. What Is a SIP?
    B. What Is the Federal Approval Process for a SIP?
    C. What Is Transportation Conformity?
    D. Why Must the State Submit a Transportation Conformity SIP?
    E. How Does Transportation Conformity Work?
II. Approval of the State Transportation Conformity Rule
    A. What Did the State Submit?
    B. What Is EPA Approving Today and Why?
    C. How Did the State Satisfy the Interagency Consultation 
Process (40 CFR 93.105)?
III. Final Action
IV. Administrative Requirements

I. Background

A. What Is a SIP?

    The states, under section 110 of the Act, must develop air 
pollution regulations and control strategies to ensure that state air 
quality meets National Ambient Air Quality Standards (NAAQS) 
established by EPA. The Act, under section 109, established these NAAQS 
which currently address six criteria pollutants. These pollutants are: 
Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and 
sulfur dioxide.
    Each state must send these regulations and control strategies to 
EPA for approval and incorporation into the Federally enforceable SIP, 
which protects air quality and contains emission control plans for 
NAAQS nonattainment area. These SIPs can be extensive, containing state 
regulations or other enforceable documents and supporting information 
such as emission inventories, monitoring networks, and modeling 
demonstrations.

B. What Is the Federal Approval Process for a SIP?

    The states must formally adopt the regulations and control 
strategies consistent with state and Federal laws for incorporating the 
state regulations into the Federally enforceable SIP. This process 
generally includes a public notice, public comment period, public 
hearing, and a formal adoption by a state-authorized rulemaking body.
    Once a state rule, regulation, or control strategy is adopted, the 
state will send these provisions to EPA for inclusion in the Federally 
enforceable SIP. EPA must then determine the appropriate Federal 
action, provide public notice, and request additional public comment on 
the action. The possible Federal actions include: Approval, 
disapproval, conditional approval and limited approval/disapproval. If 
adverse comments are received, EPA must consider and address the 
comments before taking final action.
    EPA incorporates state regulations and supporting information (sent 
under section 110 of the Act) into the Federally approved SIP through 
the approval action. EPA maintains records of all such SIP actions in 
the CFR at Title 40, Part 52, entitled ``Approval and Promulgation of 
Implementation Plans.'' The EPA does not reproduce the text of the 
Federally approved state regulations in the CFR. They are 
``incorporated by reference,'' which means that the

[[Page 78984]]

specific state regulation is cited in the CFR and is considered a part 
of the CFR the same as if the text were fully printed in the CFR.

C. What Is Transportation Conformity?

    Conformity first appeared as a requirement 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 1990 Amendments to the Act expanded the scope and content of 
the conformity concept by defining conformity to a SIP. 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.'' The 
requirements of section 176(c) of the Clean Air Act apply to all 
departments, agencies and instrumentalities of the Federal government. 
Transportation conformity refers only to the conformity of 
transportation plans, programs and projects that are funded or approved 
under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. Chapter 
53).

D. Why Must the State Submit a Transportation Conformity SIP?

    A transportation conformity SIP is a plan which contains criteria 
and procedures for the Department of Transportation (DOT), Metropolitan 
Planning Organizations (MPOs), and other state or local agencies to 
assess the conformity of transportation plans, programs and projects to 
ensure that they do not cause or contribute to new violations of a 
NAAQS in the area substantially affected by the project, increase the 
frequency or severity of existing violations of a standard in such area 
or delay timely attainment. 40 CFR 51.390, subpart T requires states to 
submit a SIP that establishes criteria for conformity to EPA. 40 CFR 
Part 93, subpart A, provides the criteria the SIP must meet to satisfy 
40 CFR 51.390.
    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. The transportation conformity rule required the 
states to adopt and submit a transportation conformity SIP revision to 
the appropriate EPA Regional Office by November 25, 1994. The State of 
North Carolina submitted a transportation conformity SIP to the EPA 
Region 4 on November 15, 1994. EPA did not take action on this SIP 
because the Agency was in the process of revising the transportation 
conformity requirements. EPA revised the transportation conformity rule 
on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and 
August 15, 1997 (62 FR 43780), and codified the revisions 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. of the 
Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, 
required the states to change their rules and submit a SIP revision to 
EPA by August 15, 1998.
    States may choose to develop in place of regulations, a memorandum 
of agreement (MOA) which establishes the roles and procedures for 
transportation conformity. The MOA includes the detailed consultation 
procedures developed for that particular area. The MOAs are enforceable 
through the signature of all the transportation and air quality 
agencies, including the Federal Highway Administration, Federal Transit 
Administration and the Environmental Protection Agency.

E. How Does Transportation Conformity Work?

    The Federal or state transportation conformity rule applies to all 
NAAQS nonattainment and maintenance areas in the state. The 
Metropolitan Planning Organizations (MPO), the State Department of 
Transportation (DOT) (in absence of a MPO), State and local Air Quality 
Agencies , U.S. Environmental Protection Agency and U.S. Department of 
Transportation (USDOT) are involved in the process of making conformity 
determinations. Conformity determinations are made on programs and 
plans such as transportation improvement programs (TIP), transportation 
plans, and projects. The MPOs calculate the projected emissions that 
will result from implementation of the transportation plans and 
programs and compare those calculated emissions to the motor vehicle 
emissions budget established in the SIP. The calculated emissions must 
be equal to or smaller than the Federally approved motor vehicle 
emissions budget in order for USDOT to make a positive conformity 
determination with respect to the SIP.

II. Approval of the State Transportation Conformity Rule

A. What Did the State Submit?

    The State of North Carolina chose to address the transportation 
conformity SIP requirements using a combination of rules and MOAs. All 
portions of the conformity rule, with the exception of 40 CFR 93.105, 
were developed as a state rule, applicable to all areas subject to 
conformity in the state. For the consultation procedures in 40 CFR 
93.105, the state chose to develop a MOA for each individual 
nonattainment/maintenance area. On April 13, 1998, the State of North 
Carolina, through the Department of Environment and Natural Resources 
(DENR), submitted the rules for transportation conformity. The 
consultation procedures for individual MOAs were not included with this 
submittal. The Environmental Management Commission (EMC) of North 
Carolina amended North Carolina Air Quality rules to adopt revisions to 
15A NCAC 2D .2000, Transportation Conformity. [Authority G.S. 150B-
21.19]. DENR gave notice of rule-making proceedings to the public on 
April 15, 1998, Notice of text on August 3, 1998 and hearing on August 
20, 1998. The agency adopted the revisions on October 10, 1998, 
effective on April 1, 1999. MOAs for Greensboro, High Point, Durham, 
Raleigh (CAMPO), Durham-Chapel Hill (DCHC), and Winston-Salem were 
signed by all parties and submitted to EPA for approval into the SIP on 
July 19, 2002. To fully meet the requirements of the Transportation 
Conformity Rule, the Mecklenburg-Union interagency consultation 
agreement will need to be submitted as a revision to the SIP. A 
separate action to approve that MOA will be taken once the state 
submits it to EPA.

B. What Is EPA Approving Today and Why?

    EPA is approving the North Carolina transportation conformity rule 
submitted to the EPA Region office on April 13, 1999 by the Director of 
the

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North Carolina DENR. One exception is the approval of state regulation 
.2003, which is the only portion of the state rule that will not be 
approved in today's action. State regulation .2003 requires compliance 
with 40 CFR 93.104 of the conformity rule. The state adopted this 
provision prior to EPA's rulemaking change to 40 CFR 93.104(e). The 
August 2002, rulemaking changes the starting point for eighteen month 
clocks that are currently running for areas with initial SIP 
submissions, so that these areas are given the full eighteen months 
after EPA's adequacy finding to determine conformity to their SIPs. In 
other words, in areas where a SIP has been submitted and EPA is 
currently reviewing it for adequacy, the eighteen-month clock required 
by 40 CFR 93.104(e) (2) will now not start until the effective date of 
our adequacy finding. For areas that have submitted initial SIPs that 
EPA has already found adequate and to which conformity has not yet been 
determined, the August rule restarts the eighteen-month clock from the 
effective date of EPA's positive adequacy finding. For more information 
on the eighteen-month conformity requirement for initial SIP 
submissions see the August 6, 2002 final rule (67 FR 50808).
    EPA has evaluated this SIP revision and the seven MOA's and has 
determined that the SIP requirements of the Federal transportation 
conformity rule as described in 40 CFR part 51, subpart T and 40 CFR 
part 93, subpart A have been met. The North Carolina DENR has satisfied 
participation and comprehensive interagency consultation requirements 
due to the adoption of the SIP and MOAs at the local level. Therefore, 
EPA is approving this revision to the North Carolina SIP.

C. How Did the State Satisfy the 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 agencies and resolution of conflicts, meeting the criteria in 40 
CFR 93.105. The SIP revision must include the process and procedures to 
be followed by the MPO, State DOT, Federal Highway Administration 
(FHWA), Federal Transit Administration (FTA), the state and local air 
quality agencies and EPA before making conformity determinations. The 
transportation conformity SIP revision must include processes and 
procedures for the state and local air quality agencies and EPA to 
coordinate the development of applicable SIPS with MPOs, states DOTs, 
FHWA and FTA.
    The State of North Carolina developed its consultation rule based 
on the elements contained in 40 CFR 93.105, and included it in the 
MOAs. As a first step, the State worked with each of the MPOs through 
existing monthly statewide interagency committee meetings. The 
interagency committee includes representatives from the state air 
quality agency-DENR, NCDOT, FHWA-NC Division, FTA-Region 4, EPA Region 
4, Capital Area MPO, Mecklenburg-Union MPO, Greensboro MPO, Gaston MPO, 
Winston-Salem MPO, Durham MPO, High Point MPO, and the Mecklenburg 
County Department of Environmental Protection. The interagency 
committee met regularly and drafted the consultation rules considering 
elements in 40 CFR 93.105, and integrated the local transportation 
planning and local and state SIP processing procedures and processes 
into the consultation MOAs for each nonattainment/maintenance area. The 
consultation process developed in these MOAs are unique to the State of 
North Carolina. The MOA's are enforceable against the parties by their 
signed consent in the MOA.

III. Final Action

    EPA is approving the aforementioned changes to the SIP, with one 
exception o section .2003 which requires the state comply with outdated 
conformity rule trigger provisions. Because the state adopted this 
regulation prior to EPA's rulemaking amending 40 CFR 93.104(e), this 
action approves state regulation .2003 with the exception of its 
reference to 40 CFR 93.104(e). All other revisions are consistent with 
Clean Air Act and EPA regulatory requirements. In addition, EPA is 
approving the aforementioned seven MOA's.
    The 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 February 25, 
2003 without further notice unless the Agency receives adverse comments 
by January 27, 2003.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.
    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 February 25, 2003 and no 
further action will be taken on the proposed rule.

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. 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

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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. 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).
    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 February 25, 2003. 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, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: October 21, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority for citation for part 52 continues to read as 
follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart II--North Carolina

    2. Section 52.1770 is amended:
    a. In paragraph (c), Table 1 is amended under subchapter 2D by 
adding in numerical order a new section ``.2000 Transportation 
Conformity''.
    b. By adding and reserving paragraph (d).
    c. By adding a new paragraph (e).
    The additions read as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                                    Table 1.--EPA Approved North Carolina Regulations
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                                                                            State       EPA approval
            State citation                      Title/subject          effective date       date                            Comments
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Subchapter 2D.........................   Air Pollution Control
                                         Requirements
 
                                                                      * * * * * * *
 
                                                         Section .2000 Transportation Conformity
Sect. .2001...........................  Purpose, Scope and                   04/01/99        12/27/02  .................................................
                                         Applicability.
Sect. .2002...........................  Definitions..................        04/01/99        12/27/02  .................................................
Sect. .2003...........................  Transportation Conformity            04/01/99        12/27/02  Except for the incorporation by reference of 40
                                         Determination.                                                 CFR 93.104(e) of the Transportation Conformity
                                                                                                        Rule.
Sect. .2004...........................  Determining transportation           04/01/99        12/27/02  .................................................
                                         Related Emissions.
Sect. .2005...........................  Memorandum of Agreement......        04/01/99        12/27/02  .................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (d) [Reserved]
    (e) EPA Approved North Carolina Non-regulatory Provisions.

                              EPA Approved North Carolina Non-regulatory Provisions
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                                         State       EPA approval
             Provision              effective date       date                 Federal Register citation
----------------------------------------------------------------------------------------------------------------
Capital Area, North Carolina               1/01/02        12/27/02  [insert FR page citation from publication
 Interagency Transportation                                          date]
 Conformity Memorandum of
 Agreement.
Durham-Chapel Hill Interagency             1/01/02        12/27/02  [insert FR page citation from publication
 Transportation Conformity                                           date]
 Memorandum of Agreement.
Winston-Salem Interagency                  1/01/02        12/27/02  [insert FR page citation from publication
 Transportation Conformity                                           date]
 Memorandum of Agreement.
High Point Interagency                     1/01/02        12/27/02  [insert FR page citation from publication
 Transportation Conformity                                           date]
 Memorandum of Agreement.

[[Page 78987]]

 
Greensboro Interagency                     1/01/02        12/27/02  [insert FR page citation from publication
 Transportation Conformity                                           date]
 Memorandum of Agreement.
Gaston, North Carolina Interagency         1/01/02        12/27/02  [insert FR page citation from publication
 Transportation Conformity                                           date]
 Memorandum of Agreement.
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[FR Doc. 02-32549 Filed 12-26-02; 8:45 am]
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