[Federal Register Volume 72, Number 81 (Friday, April 27, 2007)]
[Rules and Regulations]
[Pages 20945-20948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7895]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-0155; FRL-8305-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Approval of Revision To Rescind Portions of the Ohio 
Transportation Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
January 31, 2007, request from Ohio for a State Implementation Plan 
(SIP) revision of the State transportation conformity regulations. Ohio 
held a public hearing on these revisions on September 21, 2006. These 
revisions rescind the portion of the state transportation conformity 
regulations which are no longer consistent with the Federal 
transportation conformity regulations. The rescission of the State 
regulations will allow the Federal transportation conformity 
regulations to govern transportation conformity determinations in Ohio.

DATES: This direct final rule will be effective June 26, 2007, unless 
EPA receives written adverse comments by May 29, 2007. If written 
adverse comments are received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0155, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 886-5824.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m to 4:30 p.m. excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-0155. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your

[[Page 20946]]

comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We 
recommend that you telephone Patricia Morris, Environmental Scientist, 
at (312) 353-8656 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental 
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-8656, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. What Is Transportation Conformity?

    Transportation conformity is required under Section 176(c) of the 
Clean Air Act to ensure that Federally supported highway, transit 
projects, and other activities are consistent with (``conform to'') the 
purpose of the SIP. Conformity currently applies to areas that are 
designated nonattainment, and those redesignated to attainment after 
1990 (maintenance areas) with plans developed under section 175A of the 
Clean Air Act for the following transportation related criteria 
pollutants: Ozone, particulate matter (PM2.5 and 
PM10), carbon monoxide (CO), and nitrogen dioxide 
(NO2). Conformity to the purpose of the SIP means that 
transportation activities will not cause new air quality violations, 
worsen existing violations, or delay timely attainment of the relevant 
national ambient air quality standards (NAAQS). The transportation 
conformity regulation is found in 40 CFR part 93 and provisions related 
to conformity SIPs are found in 40 CFR 51.390.

II. What Is the Background for This Action?

    On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised a number of aspects related to section 
176(c) of the Clean Air Act's transportation conformity provisions. One 
of the changes was to streamline the requirements for conformity SIPs. 
Prior to SAFETEA-LU being signed into law, states were required to 
address all of the Federal conformity rule's provisions in their 
conformity SIPs. Most of the sections of the Federal rule were required 
to be copied verbatim from the Federal rule into a state's SIP, as 
previously required under 40 CFR 51.390(d). States were also required 
to tailor all or portions of the following three sections of the 
Federal rule to meet their state's individual circumstances: 40 CFR 
93.105, which addresses consultation procedures; 40 CFR 
93.122(a)(4)(ii), which addresses written commitments to control 
measures that are not included in a Metropolitan Planning Organizations 
transportation plan and transportation improvement program that must be 
obtained prior to a conformity determination, and the requirement that 
such commitments must be fulfilled; and, 40 CFR 93.125(c) which 
addresses written commitments to mitigation measures that must be 
obtained prior to a project level conformity determination, and the 
requirement that project sponsors must comply with such commitments.
    Under SAFETEA-LU, states are required to address and tailor only 
these three sections of the conformity rule in their conformity SIPs. 
In general, states are no longer required to submit conformity SIP 
revisions that address the other sections of the conformity rule. This 
provision took effect on August 10, 2005, when SAFETEA-LU was signed 
into law.

III. What Did the State Submit and How Did We Evaluate It?

    The SIP revision submitted to EPA on January 31, 2007, requests to 
rescind the sections of the Ohio Administrative Code (OAC), Chapters 
3745-101 Transportation Conformity, which are no longer required. When 
the Ohio rules are rescinded, the analagous Federal transportation 
conformity regulations will apply instead of the State regulations. The 
Federal transportation conformity regulations have been revised to 
address court decisions, and to incorporate new regulations to control 
PM2.5 and 8-hour ozone levels. The Ohio rules that are being 
rescinded are no longer valid under the subsequent court decisions and 
the SAFETEA-LU legislation. Approval of the rescission as a SIP 
revision will bring this regulatory framework into compliance with 
Federal law and regulation.
    We have reviewed the submittal to assure consistency with the 
February 14, 2006, ``Interim Guidance for Implementing the 
Transportation Conformity provisions in the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU)''. The policy guidance document can be found at http://epa.gov/otaq/stateresources/transconf/policy.htm.
    Ohio is requesting approval of rescission of rules 3745-101-05, 
3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-101-10, 3745-
101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-16, 3745-101-
18, 3745-101-19, and 3745-101-20. The rules that are not being 
rescinded address the consultation procedures and enforceability of 
mitigation controls and measures. These sections are still required by 
the SAFETEA-LU legislation because they are specific to each State.

IV. What Action Is EPA Taking Today?

    Based on the reasons set forth above, EPA is approving the State's 
request to rescind the following rules from the Ohio SIP: 3745-101-05, 
3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-101-10, 3745-
101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-16, 3745-101-
18, 3745-101-19, and 3745-101-20. These rules are part of OAC 3745-101 
Transportation Conformity.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
written comments are filed. This rule will be effective June 26, 2007 
without further notice unless we receive relevant

[[Page 20947]]

adverse written comments by May 29, 2007. If we receive such comments, 
we will withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. The EPA will not institute a second 
comment period. Any parties interested in commenting on this action 
should do so at this time. If we do not receive any comments, this 
action will be effective June 26, 2007.

VI. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    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.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' 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).

Regulatory Flexibility Act

    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.).

Unfunded Mandates Reform Act

    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).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    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 (59 
FR 22951, November 9, 2000).

Executive Order 13132: Federalism

    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.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    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 approves a state rule implementing a 
Federal standard.

National Technology Transfer Advancement Act

    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.

Paperwork Reduction Act

    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.).

Congressional Review Act

    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 June 26, 2007. 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.

    Dated: April 12, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, of title 40 
of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

0
2. Section 52.1870 is amended by adding and reserving paragraph 
(c)(136) and by adding paragraph (c)(137) to read as follows:


Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (136) [Reserved]
    (137) On January 31, 2007, Ohio requested to rescind certain 
transportation conformity rules from the Ohio State Implementation 
Plan, which were previously approved in paragraph (c)(122) of this 
section. The rules that are being rescinded at Ohio's request are

[[Page 20948]]

3745-101-05, 3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-
101-10, 3745-101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-
16, 3745-101-18, 3745-101-19, and 3745-101-20.

 [FR Doc. E7-7895 Filed 4-26-07; 8:45 am]
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