[Federal Register Volume 80, Number 27 (Tuesday, February 10, 2015)]
[Rules and Regulations]
[Pages 7341-7345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02585]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0938; FRL-9922-73-Region 6]


Approval and Promulgation of Implementation Plans; New Mexico; 
Transportation Conformity and Conformity of General Federal Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action approving State Implementation Plan (SIP) revisions 
submitted by the State of New Mexico on October 28, 2011, November 1, 
2013, and August 8, 2014. These revisions amend the State 
transportation conformity provisions and remove the State general 
conformity provisions from the SIP, as allowed by the 2005 amendments 
to the Clean Air Act (Act or CAA). These revisions also establish 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. Upon the effective 
date of this final action, the EPA federal rules will govern conformity 
of transportation Federal actions and general Federal actions within 
the State of New Mexico. This action is being taken in accordance with 
sections 110 and 176 of the Act.

DATES: This rule is effective on April 13, 2015 without further notice, 
unless EPA receives relevant adverse comment by March 12, 2015. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2011-0938, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions.
     Email: Jeffrey Riley at [email protected].
     Mail or delivery: Mr. Guy Donaldson, Chief, Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0938. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or email, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that 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 http://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 along with any disk or CD-ROM 
submitted. 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 and any form of encryption and should be free of any 
defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, (214) 665-8542, 
[email protected]. To inspect the hard copy materials, please 
contact Mr. Riley or Mr. Bill Deese at (214) 665-7253.

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

Table of Contents

I. Background and Purpose
II. EPA's Evaluation
III. Final Action
IV. Statutory and Executive Order Reviews

[[Page 7342]]

I. Background and Purpose

A. Call to States for Conformity SIP Revisions

    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect a State, Tribal, or local agency's ability to 
attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 
7506) to the CAA to ensure Federal agencies' proposed actions conform 
to the applicable State Implementation Plan (SIP), Tribal 
Implementation Plan (TIP) or Federal Implementation Plan (FIP) for 
attaining and maintaining the NAAQS. That section requires Federal 
entities to find that the emissions from the Federal action will 
conform with the purposes of the SIP, TIP or FIP or not otherwise 
interfere with the State's or Tribe's ability to attain and maintain 
the NAAQS.
    The CAA Amendments of 1990 clarified and strengthened the 
provisions in section 176(c). Because certain provisions of section 
176(c) apply only to highway and mass transit funding and approvals 
actions, EPA published two sets of regulations to implement section 
176(c). The Transportation Conformity Regulations, (40 CFR part 51, 
subpart T, and 40 CFR part 93, subpart A) first published on November 
24, 1993 (58 FR 62188), address Federal actions related to highway and 
mass transit funding and approval actions. The General Conformity 
Regulations, (40 CFR part 51, subpart W, and 40 CFR part 93, subpart B) 
published on November 30, 1993 (58 FR 63214), cover all other Federal 
actions. These two conformity regulations have been revised numerous 
times.
    When promulgated in 1993, the Federal transportation conformity 
rule at 40 CFR 51.395 mandated that the transportation conformity SIP 
revision incorporate several provisions of the rule in verbatim form, 
except in so far as needed to give effect to a stated intent in the 
revision to establish criteria and procedures more stringent than the 
requirements stated in these sections. Similarly, 40 CFR 51.851 
required the State's general conformity provisions must contain 
criteria and procedures that are no less stringent than the Federal 
general conformity regulation; however, the State could establish more 
stringent general conformity criteria and procedures if they apply 
equally to non-Federal, as well as Federal, entities.

B. What is transportation conformity?

    Transportation conformity is required under Section 176(c) of the 
Clean Air Act to ensure that Federally supported highway projects, 
transit projects, and other activities are consistent with (``conform 
to'') the purpose of the SIP. Transportation conformity currently 
applies to areas that are designated nonattainment, as well as those 
areas redesignated to attainment after 1990 (maintenance areas), with 
plans developed under section 175A of the Act for the following 
transportation related 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, 
subpart A and provisions related to conformity SIPs are found in 40 CFR 
51.390.

C. What is general conformity?

    General Conformity is also a requirement of section 176(c) of the 
CAA to ensure that no Federally supported actions outside of highway 
and transit projects interfere with the purpose of the approved SIP, 
i.e. the SIP's protection of the NAAQS. General conformity requirements 
currently apply to the following criteria pollutants: Ozone, 
particulate matter (PM2.5 and PM10), carbon 
monoxide (CO), and nitrogen dioxide (NO2), sulfur dioxide 
(SO2) and lead. The general conformity regulation is found 
in 40 CFR part 93, subpart B and provisions related to conformity SIPs 
are found in 40 CFR 51.851.

D. Transportation Conformity Provisions Affected by the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU)

    On August 10, 2005, the SAFETEA-LU was signed into law streamlining 
the requirements for conformity SIPs at section 176(c) of the CAA. 
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)(E) and EPA revised 40 CFR 51.390 to be 
consistent with those amendments, states are required to address and 
tailor only three sections of the conformity rule in their 
transportation 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 (MPO'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.

E. General Conformity Affected by the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

    On August 10, 2005, SAFETEA-LU was signed into law, and among other 
things, it amended the CAA to eliminate the requirement for States to 
adopt and submit General Conformity SIPs. On April 5, 2010 (75 FR 
17254), EPA updated the General Conformity SIP Regulations to, among 
other things, be consistent with SAFETEA-LU by eliminating the Federal 
regulatory requirement for states to adopt and submit general 
conformity SIPs, instead making submission of a general conformity SIP 
a state option. See 40 CFR 51.851.

F. Prior New Mexico Conformity SIP Revision Actions

    On September 9, 1998 (63 FR 48106), EPA approved New Mexico 
Administrative Code (NMAC) 20.2.98, ``Conformity of General Federal 
Actions to the State Implementation Plan.'' New Mexico's rule mirrored 
and specifically referenced the federal requirements in 40 CFR part 93, 
subpart B and 40 CFR part 51, subpart W.
    On March 20, 2000 (65 FR 14873), EPA approved NMAC 20.2.99, 
``Conformity to the State Implementation Plan of Transportation Plans, 
Programs and Projects.'' New Mexico's rule mirrored and specifically 
referenced the federal requirements in 40 CFR part 93, subpart A and 40 
CFR part 51, subpart T. On April 23, 2010 (75 FR 21169), EPA approved 
revisions to NMAC 20.2.99 submitted by the State of New Mexico on 
November 2, 2006, June 27, 2007, and May 13, 2009.

G. State Submittals

    On October 10, 2011, the State of New Mexico submitted a SIP 
revision consisting of amendments to NMAC 20.2.99, Conformity of the 
State Implementation Plan of Transportation Plans, Programs, and 
Projects. The

[[Page 7343]]

revision consisted of language to reflect the March 24, 2010 (75 FR 
14260) amendments to 40 CFR part 93, subpart A to address 
PM2.5 and PM10 nonattainment areas.
    On September 26, 2012 the Secretary of NMED submitted a letter to 
EPA requesting that EPA only consider and act upon three elements (40 
CFR 93.105; 93.122(a)(4)(ii); and 93.125(c)) contained in its October 
10, 2011 transportation conformity SIP submittal, pursuant to the 
SAFETEA-LU amendments to CAA section 176(c)(4)(E). The October 10, 2011 
SIP submittal did not contain any revisions to the EPA-approved 
transportation conformity SIP to remove/repeal additional provisions 
beyond the three above-noted elements, and thus these additional 
provisions no longer required under SAFETEA-LU remained in the SIP. The 
September 26, 2012 letter was intended to streamline the New Mexico 
transportation conformity SIP, pursuant to SAFETEA-LU amendments the 
CAA. Together the October 10, 2011 SIP revision and the September 26, 
2012 letter were insufficient to achieve the intended streamlining.
    On August 8, 2014, the State of New Mexico submitted an additional 
SIP revision consisting of the SAFETEA-LU required SIP elements and a 
repeal of the remainder of NMAC 20.2.99, which contained state 
requirements that were beyond what is required by SAFETEA-LU. The 
repeal of NMAC 20.2.99 eliminates the need for the state to undertake 
additional rulemaking to revise their state rules by incorporating by 
reference the federal rules on Transportation Conformity.
    On November 1, 2013, the State of New Mexico submitted SIP 
revisions consisting of a repeal of NMAC 20.2.98, Conformity of General 
Federal Actions to the State Implementation Plan. The repeal of the 
state rule is intended to eliminate the need for future state rule 
revisions as a result of amendments to federal regulations. Section 
6011(f) of SAFETEA-LU revised section 176(c)(4)(A) of the CAA by 
deleting the requirement for the states to adopt and submit a General 
Conformity SIP.

II. EPA's Evaluation

    We have reviewed New Mexico's submittals to ensure consistency with 
the current Clean Air Act, as amended by SAFETEA-LU, and EPA 
regulations governing state procedures for transportation and general 
conformity (40 CFR part 93, subparts A and B, 40 CFR 51.390, and 40 CFR 
51.851).
    The November 1, 2013 revision, upon final approval by EPA, removes 
20.2.98 NMAC, ``Conformity of General Federal Actions to the State 
Implementation Plan,'' from the SIP. With the removal of 20.2.98 NMAC 
from the SIP, the federal rules in 40 CFR part 93, subpart B will 
directly govern conformity of general federal actions in the State of 
New Mexico. In addition, New Mexico's November 1, 2013 revision meets 
the requirements set forth in section 110(l) of the CAA with respect to 
adoption and submission of SIP revisions. 40 CFR part 93, subpart B 
continues to subject certain federal actions to general conformity 
requirements without the need for identical state rules and SIPs. 
Therefore, repealing the state rule will not impact continuity of the 
general conformity program in New Mexico, and consequently meets the 
requirements of section 110(l).
    Together, the October 10, 2011 and August 8, 2014 revisions, upon 
final approval by EPA, remove specific provisions of 20.2.99 NMAC, 
``Conformity to the State Implementation Plan of Transportation Plans, 
Programs, and Projects,'' from the SIP that are no longer required in 
light of the SAFETEA-LU amendments. With the removal of these specific 
provisions of 20.2.99 NMAC from the SIP, the federal rules in 40 CFR 
part 93, subpart A will directly govern transportation conformity of 
federal actions in the State of New Mexico. This revision complies with 
the requirements of CAA section 176(c)(4)(e) and 40 CFR 51.390(b). In 
addition, New Mexico's October 10, 2011 and August 8, 2014 SIP 
revisions meet the requirements set forth in section 110(l) of the CAA 
with respect to adoption and submission of SIP revisions. 40 CFR part 
93, subpart A continues to subject certain federal actions to 
transportation conformity requirements without the need for identical 
state rules and SIPs. Therefore, repealing the state rule will not 
impact continuity of the transportation conformity program in New 
Mexico.
    In addition to provisions addressing the requirements at 40 CFR 
93.105, 93.122(a)(4)(ii), and 93.125(c), the State's August, 2014 
submittal also includes revisions to definitions and changed language 
to clarify the scope, applicability, and statutory authority of the 
state's transportation conformity SIP.

III. Final Action

    We are taking direct final action to approve revisions to the New 
Mexico SIP submitted on October 10, 2011, November 1, 2013, and August 
8, 2014, that pertain to removal of NMAC 20.2.98, ``Conformity of 
General Federal Actions to the State Implementation Plan,'' and 
specific provisions of NMAC 20.2.99, ``Conformity to the State 
Implementation Plan of Transportation Plans, Programs, and Projects'' 
from the SIP. The approval of New Mexico's conformity SIP revisions 
will align the New Mexico SIP with the current Clean Air Act conformity 
requirements, as amended by SAFETEA-LU, and the most recent EPA 
regulations governing state procedures for transportation and general 
conformity.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial 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 SIP revision if relevant adverse 
comments are received. This rule will be effective on April 13, 2015 
without further notice unless we receive relevant adverse comment by 
March 12, 2015. If we receive relevant adverse comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so now. Please note that if we receive 
relevant 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 the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 7344]]

     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);
     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 CAA; 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
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 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 13, 2015. 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 28, 2015.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart GG--New Mexico

0
2. In Sec.  52.1620, the first table in paragraph (c) entitled ``EPA 
Approved New Mexico Regulations'' is amended by:
0
a. Removing the entry for ``Part 98, General Conformity.''
0
b. Revising the entries for ``20.2.99.1-20.2.99.112.''
0
c. Removing the entries for ``20.2.99.113-20.2.99.154.''
    The revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA-Approved New Mexico Regulations
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                                                               State
                                                             approval/
         State citation               Title/subject          effective    EPA Approval date        Comments
                                                               date
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                                                  * * * * * * *
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                                       Part 99--Transportation Conformity
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20.2.99.1......................  Issuing Agency.........       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.2......................  Scope..................       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.3......................  Statutory Authority....       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.4......................  Duration...............       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.5......................  Effective Date.........       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.6......................  Objective..............       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.7......................  Definitions............       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.8......................  Documents..............       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.9 to 20.2.99.100.......  [Reserved].............       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].

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20.2.99.101....................  Applicability..........       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.102....................  Consultation...........       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
20.2.99.103....................  Agency Roles in               7/11/2014  2/10/15 [Insert    ...................
                                  Consultation.                            Federal Register
                                                                           Citation].
20.2.99.104....................  Agency Responsibilities       7/11/2014  2/10/15 [Insert    ...................
                                  in Consultation.                         Federal Register
                                                                           Citation].
20.2.99.105....................  General Consultation          7/11/2014  2/10/15 [Insert    ...................
                                  Procedures.                              Federal Register
                                                                           Citation].
20.2.99.106....................  Consultation Procedures       7/11/2014  2/10/15 [Insert    ...................
                                  for Specific Major                       Federal Register
                                  Activities.                              Citation].
20.2.99.107....................  Consultation Procedures       7/11/2014  2/10/15 [Insert    ...................
                                  for Specific Routine                     Federal Register
                                  Activities.                              Citation].
20.2.99.108....................  Notification Procedures       7/11/2014  2/10/15 [Insert    ...................
                                  for Routine Activities.                  Federal Register
                                                                           Citation].
20.2.99.109....................  Conflict Resolution and       7/11/2014  2/10/15 [Insert    ...................
                                  Appeals to the                           Federal Register
                                  Governor.                                Citation].
20.2.99.110....................  Public Consultation           7/11/2014  2/10/15 [Insert    ...................
                                  Procedures.                              Federal Register
                                                                           Citation].
20.2.99.111....................  Enforceability of             7/11/2014  2/10/15 [Insert    ...................
                                  Design Concept and                       Federal Register
                                  Scope and Project-                       Citation].
                                  Level Mitigation and
                                  Control Measures.
20.2.99.112....................  Savings Provision......       7/11/2014  2/10/15 [Insert    ...................
                                                                           Federal Register
                                                                           Citation].
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[FR Doc. 2015-02585 Filed 2-9-15; 8:45 am]
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