[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43943-43945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17659]



40 CFR Part 52

[EPA-R02-OAR-2014-0238; FRL-9913-73-Region-2]

Approval and Promulgation of Air Quality Implementation Plans; 
New York State; Transportation Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a revision to the New York State Implementation 
Plan (SIP). The revision establishes transportation conformity 
regulations for the State of New York. EPA is approving this revision 
in accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on September 29, 2014 without further 
notice, unless EPA receives adverse written comment by August 28, 2014. 
If EPA receives such comments, it 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: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2014-0238 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2014-0238, Richard Ruvo, Air Programs Branch, 
U.S. Environmental Protection Agency, Region II, 290 Broadway, New 
York, NY 10007.
    D. Hand Delivery: At the previously-listed EPA Region II address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2014-0238. 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 email. 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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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 
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 during normal business hours at the Clean Air and 
Sustainability Division, U.S. Environmental Protection Agency, Region 
II, 290 Broadway, New York, NY 10007. Copies of the State submittal are 
available at the New York State Department of the Environmental 
Conservation, Division of Air Resources, 625 Broadway, Albany, New York 

FOR FURTHER INFORMATION CONTACT: Melanie Zeman, (212) 637-4022, or by 
email at [email protected]

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

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 for purposes 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 (``Federal conformity 
rule'') and provisions related to conformity SIPs are found in 40 CFR 

[[Page 43944]]

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 certain provisions of section 176(c) of 
the Clean Air Act, related to transportation conformity. Prior to 
SAFETEA-LU, states were required to address all of the Federal 
conformity rule's provisions in their conformity SIPs. After SAFETEA-LU 
amended CAA section 176(c)(4)(D) and EPA revised 40 CFR 51.390 to be 
consistent with those amendments, state's SIPs were required to address 
only the following three sections of the Federal conformity rule, 
modified as appropriate to each state's circumstances: 40 CFR 93.105 
(consultation procedures); 40 CFR 93.122(a)(4)(ii) (written commitments 
to implement control measures that are not included in the 
transportation plan and transportation improvement program (TIP)); and 
40 CFR 93.125(c) (written commitments to implement mitigation 
measures). States are no longer required to submit conformity SIP 
revisions that address the other sections of the Federal transportation 
conformity rule.

III. What did the state submit and how did we evaluate it?

    On October 3, 2013, the New York State Department of Environmental 
Conservation submitted a revision to its State Implementation Plan 
(SIP), to EPA for transportation conformity amendments filed for 
adoption on August 14, 2013, and published in the New York State 
Register (I.D. No. ENV-16-13-0001-A) on September 4, 2013. The SIP 
revision included the repeal of the old Part 240, which was not 
included in the SIP, and replacement with a new Part 240, ``Conformity 
to State or Federal Implementation Plans of Transportation Plans, 
Programs, and Projects Developed, Funded or Approved Under Title 23 
U.S.C. or the Federal Transit Laws'' and revisions to Part 200, 
``General Provisions'' into Title 6 of the Official Compilation of 
Codes, Rules, and Regulations of the State of New York (6 NYCRR). The 
Part 240 revisions include cites to portions of the Federal statute and 
regulations that are incorporated by reference into Part 240. This SIP 
revision addresses the three provisions of the EPA Conformity Rule 
required by CAA section 176(c)(4)(D): 40 CFR 93.105 (consultation 
procedures); 40 CFR 93.122(a)(4)(ii) (control measures); and 40 CFR 
93.125(c) (mitigation measures).
    We reviewed the submittals to assure consistency with the January 
2009, ``Guidance for Implementing the Transportation Conformity State 
Implementation Plans (SIPs).'' This review can be found in the 
technical support document that is part of the docket. The guidance 
document can be found at http://www.epa.gov/oms/stateresources/transconf/policy/420b09001.pdf. The guidance document states that each 
state is only required to address and tailor the three aforementioned 
sections of the Federal Conformity Rule to be included in their state 
conformity SIPs. EPA's review of New York's SIP Revision indicates that 
it is consistent with EPA's guidance in that it includes the three 
aforementioned regulatory elements specified in CAA section 
176(c)(4)(D). Consistent with the EPA Conformity Rule at 40 CFR 93.105 
(consultation procedures), New York State Part 240-2 identifies the 
appropriate agencies, procedures, and allocation of responsibilities 
for consultation. Specifically, New York State Part 240-2.10 provides 
for appropriate public consultation/public involvement consistent with 
40 CFR 93.105.
    With respect to the requirements of 40 CFR 93.122(a)(4)(ii) and 40 
CFR 93.125(c), the proposed SIP specifies at 6 NYCRR 240-3.1 and 240-
3.2, respectively, that written commitments to control measures that 
are not included in the transportation plan and TIP must be obtained 
prior to a conformity determination and must demonstrate assurance that 
they will be fulfilled, and that written commitments to mitigation 
measures must be obtained prior to a positive conformity determination, 
and the project sponsors must comply with such commitments. EPA is 
approving 6 NYCRR Part 240 ``Conformity to State and Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal 
Transit Laws,'' that was published in the New York State Register and 
became effective on September 13, 2013.

IV. Final Action

    EPA is approving the New York SIP revisions for Transportation 
Conformity, which were submitted on October 3, 2013. EPA is publishing 
this rule without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comment. However, 
in the Proposed Rules section of today's Federal Register, EPA is 
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 September 29, 2014 without further notice unless EPA 
receives adverse comment by August 28, 2014. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
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 the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);

[[Page 43945]]

     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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. 
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 29, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 25, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:


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

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

Subpart HH--New York

2. In Sec.  52.1670 the table in paragraph (c) is amended by adding in 
numeric order an entry for Title 6, Part 240 and adding subtitles, 
Subparts 240-1, 240-2 and 240-3, to read as follows:

Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *

                                                    EPA-Approved New York State Regulations and Laws
                                                      State  effective
              New York State regulation                     date             Latest EPA approval date                         Comments
Title 6:
                                                                      * * * * * * *
Part 240, Conformity to State or Federal
 Implementation Plans of Transportation Plans,
 Programs and Projects Developed, Funded or Approved
 Under Title 23 U.S.C. or the Federal Transit Laws.
Subpart 240-1, Transportation Conformity General               9/13/13  7/29/14, [Insert Federal Register
 Provisions.                                                             citation].
Subpart 240-2, Consultation.........................           9/13/13  7/29/14, [Insert Federal Register
Subpart 240-3 Regional Transportation-Related                  9/13/13  7/29/14, [Insert Federal Register
 Emissions and Enforceability.                                           citation].
                                                                      * * * * * * *

* * * * *
[FR Doc. 2014-17659 Filed 7-28-14; 8:45 am]