[Federal Register Volume 73, Number 27 (Friday, February 8, 2008)]
[Rules and Regulations]
[Pages 7465-7468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2247]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2007-1054; A-1-FRL-8524-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Transportation Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Maine. This revision establishes 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. The intended effect 
of this action is to approve State criteria and procedures to govern 
transportation conformity determinations. This action is being taken in 
accordance with the Clean Air Act.

DATES: This direct final rule will be effective April 8, 2008, unless 
EPA receives adverse comments by March 10, 2008. If 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 Number EPA-
R01-OAR-2007-1054 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: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2007-1054'', 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, Suite 1100 (mail code CAQ), 
Boston, MA 02114-2023.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2007-1054. 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 through www.regulations.gov, or e-
mail, information that you consider to be CBI or otherwise protected. 
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

[[Page 7466]]

submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your 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 electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, One Congress 
Street, Suite 1100, Boston, MA. EPA requests that if at all possible, 
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
legal holidays.
    In addition, copies of the state submittal are also available for 
public inspection during normal business hours, by appointment at the 
State Air Agency; the Bureau of Air Quality Control, Department of 
Environmental Protection, First Floor of the Tyson Building, Augusta 
Mental Health Institute Complex, Augusta, ME 04333-0017.

FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone 
number (617) 918-1668, fax number (617) 918-0668, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
    A. What Is Transportation Conformity?
    B. Transportation Conformity Provisions of SAFETEA-LU
II. State Submittal
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On October 3, 2007, the State of Maine submitted a formal revision 
to its State Implementation Plan (SIP). The SIP revision consists of a 
new regulation ``Chapter 139 Transportation Conformity'' to implement 
Section 176(c)(4)(E) of the Clean Air Act as amended (42 U.S.C. 7401, 
et seq.), with respect to the conformity of transportation plans, 
programs and projects which are developed, funded, or approved by the 
United States Department of Transportation (U.S. DOT), and by 
Metropolitan Planning Organizations (MPOs) or other recipients of funds 
under Title 23 U.S.C. or the Federal Transit Laws (Title 49 U.S.C. 
Chapter 53).

A. 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.

B. Transportation Conformity Provisions of SAFETEA-LU

    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).
    Under SAFETEA-LU, states are required to address and tailor only 
three sections of the conformity rule in their conformity SIPs. These 
three sections of the Federal rule which must meet a state's individual 
circumstances are: 40 CFR 93.105, which addresses consultation 
procedures; 40 CFR 93.122(a)(4)(ii), which requires that written 
commitments be obtained for control measures that are not included in a 
Metropolitan Planning Organization's transportation plan and 
transportation improvement program prior to a conformity determination, 
and that such commitments be fulfilled; and, 40 CFR 93.125(c) which 
requires that written commitments be obtained for mitigation measures 
prior to a project level conformity determination, and that project 
sponsors must comply with such commitments. 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.

II. State Submittal

    Maine's ``Chapter 139: Transportation Conformity,'' includes 
provisions addressing: applicability; definitions; priority of 
projects; consultation roles, responsibilities, and procedures; public 
notice; and project-level mitigation and control measures.
    We have reviewed Maine's submittal to assure consistency with the 
current Clean Air Act, as amended by SAFETEA-LU, and EPA regulations 
(40 CFR part 93 and 40 CFR 51.390) governing state procedures for 
transportation conformity and interagency consultation and have 
concluded that the submittal is approvable. Specifically, Maine's rule 
adequately addresses the three sections of the Federal rule discussed 
above.

IV. Final Action

    EPA is approving Maine's ``Chapter 139 Transportation Conformity,'' 
and incorporating this regulation into the Maine SIP.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment 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

[[Page 7467]]

should relevant adverse comments be filed. This rule will be effective 
April 8, 2008 without further notice unless the Agency receives 
relevant adverse comments by March 10, 2008.
    If the EPA receives such comments, then EPA will publish a notice 
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 on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on April 8, 2008 and no further action will be 
taken on the proposed rule. 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.

V. 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), 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 
``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.
    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 April 8, 2008. Interested 
parties should comment in response to the proposed rule rather than 
petition for judicial review, unless the objection arises after the 
comment period allowed for in the proposal. 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 24, 2008.
Ira W. Leighton,
 Acting Regional Administrator, EPA New England.

0
Part 52 of chapter I, 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 U--Maine

0
2. Section 52.1020 is amended by adding paragraph (c)(64) to read as 
follows:


Sec.  52.1020  Identification of plan.

* * * * *
    (c) * * *
    (64) Revisions to the State Implementation Plan submitted by the 
Maine Department of Environmental Protection on October 3, 2007.
    (i) Incorporation by reference.
    (A) Maine Administrative Procedure Act (MAPA) 1 Form which provides 
certification that the Attorney General approved Chapter 139 
``Transportation Conformity,'' as to form and legality, dated September 
10, 2007.
    (B) Chapter 139 of the Maine Department of Environmental Protection 
Regulations, ``Transportation Conformity,'' effective in the State of 
Maine on September 19, 2007.
    (ii) Additional materials.
    (A) Nonregulatory portions of the submittal.

[[Page 7468]]


0
3. In Sec.  52.1031, Table 52.1031 is amended by adding a new entry for 
state citation Chapter 139 to read as follows:


Sec.  52.1031  EPA-approved Maine regulations.

* * * * *

                               Table 52.1031.--EPA-Approved Rules and Regulations
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                                          Date         Date
 State  citation     Title/subject     adopted by    approved    Federal Register    52.1020
                                         State        by EPA         citation
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                                                  * * * * * * *
139.............  Transportation          9/19/07      2/08/08  [Insert Federal        (c) 64
                   Conformity.                                   Register page
                                                                 number where the
                                                                 document begins].
 
                                                  * * * * * * *
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Note.--1. The regulations are effective statewide unless stated otherwise in comments section.

 [FR Doc. E8-2247 Filed 2-7-08; 8:45 am]
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