[Federal Register Volume 68, Number 95 (Friday, May 16, 2003)]
[Rules and Regulations]
[Pages 26492-26495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12178]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-248-2003217(a); FRL-7498-6]


Approval and Promulgation of Implementation Plans: Revisions to 
Tennessee State Implementation Plan: Transportation Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a revision to the Tennessee State 
Implementation Plan (SIP) submitted on March 19, 2002, 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), including detailed consultation 
procedures for implementing the transportation conformity rule. 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 requirement at the state level. This 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.

DATES: This direct final rule is effective July 15, 2003 without 
further notice, unless EPA receives adverse comment by June 16, 2003. 
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: 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 documents relative to this action are available at the 
following address 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.
    Tennessee Department of Environment and Conservation, Air Pollution 
Control, 9th Floor L & C Annex, 401 Church Street, Nashville, Tennessee 
37243-1531.

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

SUPPLEMENTARY INFORMATION: On March 19, 2002, Tennessee submitted a 
revision to the 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), 
including detailed consultation procedures for implementing the 
transportation conformity rule. The information on this action is 
organized as follows:

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. Statutory and Executive Order Reviews

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 areas. These SIPs can be extensive, containing 
state regulations or other enforceable documents and supporting 
information such as

[[Page 26493]]

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 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 (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 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 State 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 part 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 part 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 
Tennessee 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 MPO, the 
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 Tennessee chose to address the transportation 
conformity SIP requirements using state rules that incorporate by 
reference portions of the federal conformity rule and specific rules 
that provide the procedures for interagency consultation. The 
Transportation conformity rule, part 93.105, requires the state to 
develop specific procedures for consultation, resolution of conflict 
and public consultation. On March 19, 2002, the

[[Page 26494]]

State of Tennessee, through the Department of Environment and 
Conservation (DEC), submitted the rules for transportation conformity. 
DEC gave notice of rule-making proceedings to the public on April 6, 
1998, held a public hearing on May 18, 1998 and the rules were approved 
by the Tennessee Air Pollution Control Board on September 13, 2000. 
These amendments to Department of Environment and Conservation Rule 
Chapter 1200-3-34, filed on August 31, 2001, became effective November 
14, 2001.

B. What Is EPA Approving Today and Why?

    EPA is approving the Tennessee transportation conformity rule 
submitted to the EPA Region 4 office on March 19, 2002, by the 
Technical Secretary of the Tennessee Air Pollution Control Board. One 
exception is the approval of one provision in 1200-3-34-.01 (2), where 
subpart A of the conformity rule 40 CFR part 93 is adopted by 
reference. 40 CFR part 93.104(e), was amended after the state went 
through its public adoption process. EPA amended 93.104(e) in August 
2002, changing the starting point for eighteen month clocks from the 
date of SIP submittal to the date of adequacy determination of the 
motor vehicle emissions budgets. Refer to the August 6, 2002, final 
rule (67 FR 50808) for more details. Therefore, the Tennessee rule 
incorporating by reference the 40 CFR part 93, subpart A, will not 
include section 93.104(e).
    Furthermore, Tennessee's incorporation by reference of the 
conformity rule did not include portions of the regulations affected by 
the federal court decision in Environmental Defense Fund v. 
Environmental Protection Agency, 167 F.3d 641 (D.C. Cir. 1999) and 
Sierra Club v. EPA, et. al., 129 F. 3d 137 (D.C. Cir. 1997). These 
include the following sections: 93.102(c)(1), 93.102(d), 93.118(e)(1), 
93.120(a)(2), 93.121(a)(1) and 93.124(b). For all those portions not 
incorporated by reference, the Federal transportation conformity rule 
will take precedence.
    EPA has evaluated this SIP revision and 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. Therefore, EPA is approving this revision to the 
Tennessee 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 Federal, state, and local 
agencies and resolution of conflicts meeting the criteria of 40 CFR 
93.105. The SIP revision must include the process and procedures to be 
followed by the MPOs, DOT, Federal Highway Administration (FHWA), 
Federal Transit Administration (FTA), local transit operators, the 
state and local air quality agencies and EPA before making conformity 
determinations. The transportation conformity SIP revision must also 
include processes and procedures for the state and local air quality 
agencies and EPA to coordinate the development of applicable SIPs with 
MPOs, state DOTs, FHWA and FTA.
    The State of Tennessee developed its statewide consultation rule 
based on the elements contained in state rule 1200-3-34 (3). The 
consultation process developed by the Tennessee Air Pollution Control 
Division (TAPCD) is unique to the state of Tennessee and is 
enforceable, effective November 14, 2001, signed by the City of 
Nashville Secretary of State on January 29, 2002.

III. Final Action

    EPA is approving the aforementioned changes to the Tennessee SIP, 
with the exception of the incorporation of reference to 40 CFR part 
93.104(e) in 1200-3-34-.01(3) which requires the state to comply with 
outdated conformity rule trigger provisions, because the state adopted 
this regulation prior to EPA's rulemaking amendment on August 6, 2002.
    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 July 15, 2003 
without further notice unless the Agency receives adverse comments by 
June 16, 2003.
    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 July 15, 2003 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. Statutory and Executive Order Reviews:

    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.

[[Page 26495]]

    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 July 15, 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).)
    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 July 15, 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, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: April 29, 2003.
Stanley L. Meiburg,
Acting Regional Administrator, Region 4.

0
Chapter I, title 40, Code of Federal Regulations, is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority for citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. Section 52.2220(c) is amended by adding in numerical order a new 
chapter heading No. ``1200-3-34 Conformity'', and an entry for ``1200-
3-34-.01'' to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved Tennessee Regulations
----------------------------------------------------------------------------------------------------------------
                                                        State effective
         State citation              Title/subject           date          EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                 * * * * * * *
                                          Chapter 1200-3-34 Conformity
 
 Section 1200-3-34-.01..........  Conformity of       November 14, 2001.  May 16, 2003.       Except for the
                                   Transportation                          [Insert citation    incorporation by
                                   Plans, Programs,                        of publication].    reference of 40
                                   and Projects.                                               CFR 93.104(e) of
                                                                                               the
                                                                                               Transportation
                                                                                               Confirmity Rule.
----------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 03-12178 Filed 5-15-03; 8:45 am]
BILLING CODE 6560-50-P