[Federal Register Volume 82, Number 196 (Thursday, October 12, 2017)]
[Rules and Regulations]
[Pages 47383-47385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21930]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0174; FRL-9969-24-Region 4]


Air Plan Approval: Alabama; Transportation Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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 rule is effective November 13, 2017.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2017-0174. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through www.regulations.gov or in hard 
copy at the 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. EPA requests that if at all possible, you 
contact the person 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 a.m. to 4:30 p.m., 
excluding Federal holidays.

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

    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 part 93 in entirety.
    On March 14, 2012 (77 FR 14979), EPA finalized the rule entitled 
``Transportation Conformity Rule Restructuring Amendments.'' 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 Sec.  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 Clean Air Act (CAA or 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). 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.
    In a direct final rule published on August 17, 2017 (82 FR 39035), 
EPA took a direct final action to approve the portions of the May 8, 
2013, submittal that 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. In the direct final rulemaking, EPA established 
that the rule would become effective 60 days after publication in the 
Federal Register and without further notice, unless EPA received 
adverse comment within 30 days of the publication. If EPA received such 
comments, it would publish a timely withdrawal of the direct final rule 
in the Federal Register and inform the public that the rule will not 
take effect. Comments on the rulemaking were due on or before September 
18, 2017.
    EPA received one adverse comment on the direct final rulemaking, 
and as a result, elsewhere in this issue of the Federal Register, the 
EPA has taken a separate action to withdraw the direct final rule. 
Nevertheless, the rationale for EPA's action still remains and the only 
addition in this final rulemaking is the response to the adverse 
comment received. The details of Alabama's SIP revisions and the 
rationale for EPA's action are further explained in the direct final 
rule published August 17, 2017 (82 FR 39035). Below is a summary of the 
comment received and EPA's response.

II. Response to Comment

    Comment: The Commenter mentions that EPA should not allow Alabama 
to remove transportation conformity rules from the SIP and asserts that 
EPA has loosened the Federal transportation conformity requirements. 
The Commenter goes on to say that Alabama should incorporate by 
reference the entirety of 40 CFR part 93.

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    Response: Alabama's SIP continues to include transportation 
conformity requirements. CAA section 176(c) is the statutory authority 
for transportation conformity (42 U.S.C. 7506(c)). This section of the 
CAA was amended by provisions contained in the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), which was signed into law on August 10, 2005 (Public Law 
109-59). Among the changes Congress made to this section of the CAA was 
to streamline the requirements for state conformity SIPs. Subsequently, 
EPA published a final rule on January 24, 2008 (73 FR 4420), to update 
the requirements for conformity SIPs as well as the other CAA 
provisions amended by Congress. These streamlined conformity SIP 
requirements did not loosen EPA's conformity requirements. The CAA 
amendment was merely intended to reduce the burden on states associated 
with duplicating federal transportation conformity rules within state 
conformity rules.
    CAA section 176(c)(4)(E) and 40 CFR 51.390(b) of the conformity 
rule now require states to submit conformity SIPs that address only the 
following provisions of the federal conformity rule:
     40 CFR 93.105, which addresses consultation procedures;
     40 CFR 93.122(a)(4)(ii), which states that conformity SIPs 
must require that written commitments to control measures be obtained 
prior to a conformity determination if the control measures are not 
included in a metropolitan planning organization's transportation plan 
and transportation improvement programs, and that such commitments be 
fulfilled; and
     40 CFR 93.125(c), which states that conformity SIPs must 
require that written commitments to mitigation measures be obtained 
prior to a project-level conformity determination, and that project 
sponsors comply with such commitments.

These provisions must be tailored to a state's individual 
circumstances, rather than including the federal conformity rule 
section verbatim. Alabama's SIP contains the tailored provisions.

III. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of ADEM 
Regulation, chapter 335-3-17-.01 entitled ``Transportation 
Conformity,'' effective May 28, 2013, which incorporates by reference 
the Federal Transportation Conformity Rule. 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). Therefore, these materials have 
been approved by EPA for inclusion in the State implementation plan, 
have been incorporated by reference by EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of EPA's approval, and will be 
incorporated by reference by the Director of the Federal Register in 
the next update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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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.

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. 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 (Public Law 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 December 11, 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

[[Page 47385]]

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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: September 29, 2017.
Onis ``Trey'' Glenn, III
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

0
2. Section 52.50(c) is amended under the heading ``Chapter No. 335-3-17 
Conformity of Federal Actions to State Implementation Plans'' by 
revising the entry for ``Section 335-3-17-.01'' to read as follows:


Sec.  52.50  Identification of plan.

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    (c) * * *

                                        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  10/12/2017           ....................
                                   Conformity.                         [Insert citation of
                                                                        publication].
 
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[FR Doc. 2017-21930 Filed 10-11-17; 8:45 am]
 BILLING CODE 6560-50-P