[Federal Register Volume 82, Number 158 (Thursday, August 17, 2017)]
[Rules and Regulations]
[Pages 39035-39038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17241]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0174; FRL-9966-29-Region 4]


Air Plan Approval: Alabama; Transportation Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
portion of a revision to the Alabama State Implementation plan (SIP) 
submitted by the State of Alabama on May 8, 2013, for the purpose of 
amending the transportation conformity rules to be consistent with 
Federal requirements.

DATES: This direct final rule is effective October 16, 2017 without 
further notice, unless EPA receives adverse comment by September 18, 
2017. 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 No. EPA-R04-
OAR-2017-0174 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9222. Ms. Sheckler can 
also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Call to States for Conformity SIP Revisions

    In the Clean Air Act (CAA or Act), Congress recognized that actions 
taken by federal agencies could affect a State, Tribal, or local 
agency's ability to attain and maintain the national ambient air 
quality standards (NAAQS). Congress added section 176(c) (42 U.S.C. 
7506) to the CAA to ensure federal agencies' proposed actions conform 
to the applicable 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),

[[Page 39036]]

address federal actions related to highway and mass transit funding and 
approval actions. The conformity regulations have been revised numerous 
times since then.
    When promulgated in 1993, the Federal Transportation Conformity 
Rule at 40 CFR 51.395 mandated that the transportation conformity SIP 
revisions incorporate several provisions of the rule in verbatim form, 
except insofar 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.

B. What is transportation conformity?

    Transportation conformity is required under section 176(c) of the 
CAA 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, and nitrogen 
dioxide. 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 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. 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 and provided 
changes to the CAA that streamlined the requirements for conformity 
SIPs at section 176(c). 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. (The 
requirement that states adopt the Federal conformity rule verbatim 
results in the need for states to submit a SIP revision within one year 
of EPA's adoption of any changes, including minor changes, to the 
rule.) The 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, and 
they are able to streamline their SIP-approved conformity requirements 
consistent with changes made through SAFETEA-LU.

D. Prior Approval of Alabama Conformity SIP Revisions

    EPA has approved several revisions to the Alabama SIP to 
incorporate transportation conformity requirements consistent with the 
Federal regulations. Initially, on May 11, 2000, EPA approved Alabama's 
SIP revision to address consultation requirements for transportation 
conformity. See 65 FR 30358. On March 26, 2009, EPA approved revisions 
to the transportation conformity requirements in the Alabama SIP to 
cover the specific applicable areas and address new requirements 
related to both the 8-hour ozone and PM2.5 NAAQS. See FR 74 
13118. EPA also approved a subsequent revision to Alabama's 
transportation conformity requirements on September 26, 2012. See 77 FR 
59100.

II. Analysis of State's Submittal

    On May 8, 2013, the Alabama Department of Environmental Management 
submitted a SIP revision to EPA to make two changes to its 
transportation conformity requirements. First, the State changed its 
regulations at Alabama Administrative Code section 335-3-17-.01, 
Transportation Conformity, to reflect the January 24, 2008 (73 FR 4420) 
amendments to 40 CFR part 93, subpart A that address the 2005 SAFETEA-
LU. That change in Alabama's regulation streamlines the State's 
transportation conformity SIP to include only Sec. Sec.  93.105, 
93.122(a)(4)(ii) and 93.125(c), consistent with Federal requirements, 
and not the provisions of 40 CFR 93 in entirety.
    On March 14, 2012, EPA finalized the rule entitled ``Transportation 
Conformity Rule Restructuring Amendments.'' See 77 FR 14979. Through 
that final action, EPA restructured several sections of the 
transportation conformity rule so that they apply to any new or revised 
NAAQS. Specifically, EPA amended Sec. Sec.  93.101, 93.105, 93.109, 
93.116, 93.118, 93.119, and 93.121 of the Transportation Conformity 
Rule. In its May 8, 2013, SIP revision, Alabama requests that EPA 
incorporates by reference subsequent Federal changes EPA promulgated in 
the Transportation Conformity Rule Restructuring Amendments. Although 
Alabama's submission mentions that it is incorporating by reference 
provisions in EPA's Transportation Conformity Rule Restructuring 
Amendments, the only relevant portion for incorporation by reference is 
the change that EPA made to section 93.105 because, in this same 
submission, Alabama changed the State regulations and transportation 
conformity requirements in its SIP to address only Sec. Sec.  93.105, 
93.122(a)(4)(ii) and 93.125(c), in accordance with EPA's regulations. 
The changes EPA made to Sec.  93.105 were administrative in nature and 
involved updates to citations, revision of introductory paragraphs, and 
redesignating paragraphs.
    EPA has reviewed Alabama's submittal to ensure consistency with the 
current CAA, as amended by SAFETEA-LU, and EPA regulations governing 
state procedures for transportation and general conformity (40 CFR part 
93, subparts A and B). The May 8, 2013, SIP revision, upon final 
approval by EPA, removes specific provisions of Alabama Administrative 
Code section 335-3-17-.01, ``Transportation Conformity,'' from the SIP 
that are no longer required in light of the SAFETEA-LU amendments. With 
the removal of these specific provisions of 335-3-17-.01 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 Alabama. 
This revision complies with the requirements of CAA section 
176(c)(4)(e) and 40 CFR 51.390(b). 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 Alabama.

III. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is

[[Page 39037]]

proposing to incorporate by reference the ADEM. Regulation chapter 335-
3-17.01 entitled ``Transportation Conformity,'' effective May 28, 2013, 
which incorporates by reference the Federal Transportation Conformity 
Rule that was restructured and amended on March 14, 2012 (77 FR 14979). 
EPA has made, and will continue to make, these materials generally 
available through www.regulations.gov and/or at the EPA Region 4 office 
(please contact the person identified in the For Further Information 
Contact section of this preamble for more information).

IV. Final Action

    Pursuant to section 110 of the CAA, EPA is approving the revision 
to the Alabama SIP regarding the State's transportation conformity 
requirements. The approval of Alabama's conformity SIP revisions will 
align the Alabama SIP with the current federal conformity requirements, 
as amended by SAFETEA-LU, and the most recent EPA regulations governing 
state procedures for transportation conformity.
    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 October 16, 2017 
without further notice unless the Agency receives adverse comments by 
September 18, 2017.
    If 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. 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 October 16, 2017 and no 
further action will be taken on the proposed rule.

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 Act and applicable 
Federal regulations. See 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.);
     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).
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 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. 
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 October 16, 2017. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: August 4, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    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 B--Alabama

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2. Section 52.50(c) is amended by revising the entry for ``Section 335-
3-17-.01'' to read as follows:


Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

[[Page 39038]]



                                                            EPA Approved Alabama Regulations
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                                                                State
          State citation                Title/subject      effective date             EPA approval date                         Explanation
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                                    Chapter No. 335-3-17 Conformity of Federal Actions to State Implementation Plans
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Section 335-3-17-.01..............  Transportation              5/28/2013  8/17/2017 [Insert citation of
                                     Conformity.                            publication].
 
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[FR Doc. 2017-17241 Filed 8-16-17; 8:45 am]
BILLING CODE 6560-50-P