[Federal Register Volume 89, Number 22 (Thursday, February 1, 2024)]
[Proposed Rules]
[Pages 6475-6477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01670]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2023-0096; FRL-11663-01-R4]


Air Plan Approval; Florida; Revisions to the State Implementation 
Plan Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Florida Department of Environmental Protection (FDEP) through a letter 
dated August 12, 2022. The revision updates the general conformity 
portion of the conformity rule in Florida's SIP. EPA is proposing to 
approve these changes pursuant to the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before March 4, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2023-0096 at 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 https://www.epa.gov/dockets/commenting-epa-dockets.

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FOR FURTHER INFORMATION CONTACT: Josue Ortiz Borrero, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Ortiz can be 
reached via phone number (404) 562-8085 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    General conformity is a requirement of CAA section 176(c). General 
conformity prohibits Federal actions within nonattainment and 
maintenance areas unless the emissions from the actions conform to the 
applicable SIP, Tribal Implementation Plan (TIP), or Federal 
Implementation Plan (FIP) for the area.\1\ Conformity to an 
implementation plan means conformity to an implementation plan's 
purpose of eliminating or reducing the severity and number of 
violations of the national ambient air quality standards (NAAQS or 
standards) and achieving expeditious attainment of such standards. See 
section 176(c)(1). Under general conformity, Federal actions cannot: 
(1) Cause or contribute to any new violation of any standard in any 
area; (2) increase the frequency or severity of any existing violation 
of any air quality standard in any area; or (3) or delay timely 
attainment of any standard, any required interim emission reductions, 
or any other milestones, in any area. Id.
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    \1\ ``Federal action'' is defined at 40 CFR 93.152 as ``any 
activity engaged in by a department, agency, or instrumentality of 
the Federal government, or any activity that a department, agency or 
instrumentality of the Federal government supports in any way, 
provides financial assistance for, licenses, permits, or approves, 
other than activities related to transportation plans, programs, and 
projects developed, funded, or approved under title 23 U.S.C. or the 
Federal Transit Act (49 U.S.C. 1601 et seq.). Where the Federal 
action is a permit, license, or other approval for some aspect of a 
non-Federal undertaking, the relevant activity is the part, portion, 
or phase of the non-Federal undertaking that requires the Federal 
permit, license, or approval.''
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    EPA promulgated two sets of conformity regulations in November 1993 
to implement section 176(c) of the CAA. First, EPA promulgated 
transportation conformity regulations, which apply to highways and mass 
transit, on November 24, 1993. See 58 FR 62188. These regulations 
establish the criteria and procedures for determining whether 
transportation plans, programs, and projects funded under 23 U.S.C. or 
the Federal Transit Act (40 U.S.C. chapter 53) conform with 
implementation plans. EPA subsequently revised the transportation 
conformity regulations several times. See 69 FR 40004 (July 1, 2004); 
70 FR 24280 (May 6, 2005); 71 FR 12468 (March 10, 2006); and 73 FR 4420 
(January 24, 2008). Second, on November 30, 1993, EPA promulgated the 
general conformity regulations at 40 CFR part 51, subpart W and 40 CFR 
part 93, subpart B, which applied to all other Federal actions to 
ensure they conformed with implementation plans. See 58 FR 63214. EPA 
has revised its general conformity regulations twice. See 71 FR 40420 
(July 17, 2006) and 75 FR 17254 (April 5, 2010). As part of the 2010 
revisions, EPA revised its general conformity regulations to remove 
rules from 40 CFR part 51, subpart W that were duplicative of those in 
40 CFR part 93, subpart B. See 75 FR 17254 (April 5, 2010).\2\
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    \2\ For more information on general conformity, see https://www.epa.gov/general-conformity.
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    Florida Rule 62-204.500, Florida Administrative Code (F.A.C.), 
Conformity, addresses general conformity in paragraph (1). EPA 
incorporated Rule 62-204.500 into the Florida SIP in a direct final 
rule on August 11, 2003. See 68 FR 47468. Since then, Florida has 
amended Rule 62-204.500, and those changes are the subject of this 
notice of proposed rulemaking (NPRM).\3\
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    \3\ The August 12, 2022, submittal transmits several changes to 
other Florida SIP-approved rules. These changes are not addressed in 
this proposed rulemaking and will be considered by EPA in separate 
rulemakings. In addition, EPA will not act on subsections 62-
204.500(1)(a)-(1)(d), F.A.C., because they were withdrawn from EPA 
consideration in a letter dated January 5, 2024, which is in the 
docket for this proposed rulemaking.
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II. EPA's Analysis of Florida's Submittal

    Florida's August 12, 2022, SIP revision updates Rule 62-204.500, 
Conformity. Specifically, the SIP revision changes the ``General 
Conformity'' section at paragraph (1) by updating cross-references.
    Florida's SIP revision updates two cross-references in paragraph 
(1) of Rule 62-204.500. Specifically, the revision replaces two cross-
references that refer to 40 CFR part 51, subpart W, with references to 
40 CFR part 93, subpart B. The SIP-approved version of paragraph (1), 
states that it applies to state review of all Federal general 
conformity determinations submitted to the state pursuant to 40 CFR 
part 51, subpart W. It also states that pursuant to 40 CFR part 51, 
subpart W, Federal agencies are required to make conformity 
determinations to ensure that certain Federal actions are consistent 
with the SIP. As mentioned in Section I of this notice, EPA removed 
rules from 40 CFR part 51, subpart W that were duplicative of those in 
40 CFR part 93, subpart B. Because the SIP-approved version of Rule 62-
204.500 relies on the duplicative rules that EPA removed from 40 CFR 
part 51, the SIP-approved rule is outdated. EPA is proposing to approve 
the changes to paragraph (1) because they update the cross-references 
to the correct location of the implementing requirements for general 
conformity.

III. Incorporation by Reference

    In this document, the 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, and as discussed in Section 
II of this preamble, the EPA is proposing to incorporate by reference 
Florida Rule 62-204.500, F.A.C., Conformity, state effective on October 
23, 2016, except for 62-204.500(1)(a), 62-204.500(1)(b), 62-
204.500(1)(c), and 62-204.500(1)(d). The EPA has made, and will 
continue to make, the SIP generally available through 
www.regulations.gov and 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. Proposed Action

    For the reasons discussed above, EPA is proposing to approve the 
August 12, 2022, Florida SIP revision updating Rule 62-204.500, 
Conformity, in the Florida SIP.

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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 6477]]

     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    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 proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The FDEP did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this proposed action. Due to the 
nature of the action being proposed here, this proposed action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. Consideration of EJ is not required as part of this 
proposed action, and there is no information in the record inconsistent 
with the stated goal of E.O. 12898 of achieving EJ for people of color, 
low-income populations, and Indigenous peoples.

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, Sulfur 
oxides.

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

    Dated: January 17, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-01670 Filed 1-31-24; 8:45 am]
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