Approval and Promulgation of Implementation Plan for New Mexico Albuquerque/Bernalillo County: Transportation Conformity Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-37-1-7392a; FRL-6372-7]

Approval and Promulgation of Implementation Plan for New Mexico--

Albuquerque/Bernalillo County: Transportation Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We, the EPA, are approving a revision to the New Mexico State

Implementation Plan (SIP) that contains the transportation conformity

rule for Albuquerque/Bernalillo County. The conformity rules assure

that in air quality nonattainment or maintenance areas, projected

emissions from transportation plans and projects stay within the motor

vehicle emissions ceiling in the SIP. The transportation conformity SIP

revision enables the Albuquerque/Bernalillo County Air Quality Control

Board (AQCB) to implement and enforce the Federal transportation

conformity requirements in the Albuquerque/Bernalillo County area level

per 40 CFR part 51, subpart T and 40 CFR part 93, subpart A--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. Our approval action streamlines the

conformity process and allows direct consultation among agencies at the

local levels. Our final approval action is limited to 40 CFR part 51,

subpart T and 40 CFR part 93, subpart A (Transportation Conformity). We

approved the SIP revision sent under 40 CFR part 51, subpart W

(conformity of general Federal actions) on September 13, 1996 (61 FR

48407).

We approve this SIP revision under sections 110(k) and 176 of the

Clean Air Act (Act). We have given our rationale for approving this SIP

revision in this action.

DATES: This rule is effective on September 7, 1999 without further

notice, unless EPA receives adverse comment by August 9, 1999. If we

receive adverse comment, we will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: You should send your written comments to Mr. Thomas H.

Diggs, Chief, Air Planning Section (6PDL) at the address given below.

You may inspect copies of the State's SIP revision and other relevant

information during normal business hours at the following locations. If

you wish to examine these documents, you should make an appointment

with the appropriate office at least 24 hours before the visiting day.

Air Planning Section (6PDL), Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Dallas, Texas 75202, Telephone: (214) 665-7214.

Air Pollution Control Division, Albuquerque Environmental Health

Department, City of Albuquerque, One Civic Plaza, Albuquerque, New

Mexico 87102, Telephone: (505) 768-2600.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning

Section (6PDL), Multimedia Planning and Permitting Division,

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,

Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION: We have outlined the contents of this notice

below for your reading convenience:

I. Background

A. What is a SIP?

B. What is the Federal approval process for a SIP?

C. What is transportation conformity?

D. Why must the State send a transportation conformity SIP?

E. How does transportation conformity work?

II. Approval of the Albuquerque/Bernalillo County Transportation

Conformity Rule

A. What did the State send?

B. What is EPA approving today and why?

C. How did the AQCB satisfy the interagency consultation process (40

CFR 93.105)?

D. Why did the AQCB exclude the grace period for new nonattainment

areas (40 CFR 93.102(d))?

E. What parts of the rule are excluded?

III. Opportunity for Public Comments

IV. Administrative Requirements

I. Background

A. What is a SIP?

The states under section 110 of the Act must develop air pollution

regulations and control strategies to ensure that state air quality

meets the National Ambient Air Quality Standards (NAAQS) established by

the EPA. The Act under section 109 established these ambient standards

which currently includes six criteria pollutants. These pollutants are:

carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and

sulfur dioxide.

Each state must send these regulations and control strategies to

us, the EPA, for approval and incorporation into the federally

enforceable SIP.

Currently, each state has a federally approved SIP which protects

air quality and has emission control plans for nonattainment areas.

These SIPs can be extensive, containing state regulations or other

enforceable documents and supporting information such as emission

inventories, monitoring networks, and modeling demonstrations.

B. What is the Federal Approval Process for a SIP?

The states must formally adopt the regulations and control

strategies consistent with state and Federal laws for incorporating the

state regulations into the federally enforceable SIP. This process

generally includes a public notice, public hearing, public comment

period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the

state will send these provisions to us for inclusion in the federally

enforceable SIP. We must then decide on an appropriate Federal action,

provide public notice,

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and request additional public comment on the action. If anyone sends

adverse comments, we must consider the comments before a final action.

We incorporate all state regulations and supporting information

(sent under section 110 of the Act) into the federally approved SIP

after our approval action. We maintain records of such SIP actions in

the Code of Federal Regulations (CFR) at Title 40, part 52, entitled

``Approval and Promulgation of Implementation Plans. The Government

does not reproduce the text of the federally approved state regulations

in the CFR. They are ``incorporated by reference,'' which means that

the specific state regulation is cited in the CFR and is considered a

part of the CFR the same as if the text were fully printed in the CFR.

C. What is Transportation Conformity?

Conformity first appeared in the Act's 1977 amendments (Public Law

95-95). Although the Act did not define conformity, it stated that no

Federal department could engage in, support in any way or provide

financial assistance for, license or permit, or approve any activity

which did not conform to a SIP which has been approved or promulgated.

The Act's 1990 Amendments expanded the scope and content of the

conformity concept by defining conformity to an implementation plan.

Section 176(c) of the Act defines conformity as conformity to the SIP's

purpose of eliminating or reducing the severity and number of

violations of the NAAQS and achieving expeditious attainment of such

standards. Also, the Act states that no Federal activity will: (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

standard in any area, or (3) delay timely attainment of any standard or

any required interim emission reductions or other milestones in any

area.

D. Why Must the State Send a Transportation Conformity SIP?

We were required to issue criteria and procedures for determining

conformity of transportation plans, programs, and projects to a SIP by

section 176(c) of the Act. The Act also required the procedure to

include a requirement that each State submit a revision to its SIP

including conformity criteria and procedures. We published the first

transportation conformity rule in the November 24, 1993, Federal

Register, and it was codified at 40 CFR part 51, subpart T and 40 CFR

part 93, subpart A. We required the States and local agencies to adopt

and submit a transportation conformity SIP revision to us by November

25, 1994. The State Governor sent a transportation conformity SIP on

December 19, 1994, in behalf of Albuquerque/Bernalillo County Air

Quality Control Board (AQCB). We approved this SIP on November 8, 1995

(60 FR 56241). We revised the transportation conformity rule on August

7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and August 15,

1997 (62 FR 43780), and it was codified under 40 CFR part 51, subpart T

and 40 CFR part 93, subpart A--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 (62 FR 43780). Our action of August 15, 1997, required the

States to change their rules and send a SIP revision by August 15,

1998.

E. How Does Transportation Conformity Work?

The Federal or State transportation conformity rule applies to all

nonattainment and maintenance areas in the State. The Metropolitan

Planning organizations (MPO), the State Departments of Transportation

(in absence of a MPO), and U.S. Department of Transportation make

conformity determinations. These agencies make conformity

determinations on programs and plans such as transportation improvement

programs, transportation plans, and projects. The MPOs calculate the

projected emissions for the transportation plans and programs and

compare those calculated emissions to the motor vehicle emissions

ceiling established in the SIP. The calculated emissions must be

smaller than the motor vehicle emissions ceiling for showing a positive

conformity with the SIP.

II. Approval of the Albuquerque/Bernalillo County Transportation

Conformity Rule

A. What Did the State Send?

On December 9, 1998, the Governor of New Mexico in behalf of AQCB

sent a SIP revision that includes the Albuquerque/Bernalillo

transportation conformity and consultation rule. The AQCB adopted this

SIP revision on May 13, 1998, after appropriate public participation

and interagency consultation.

B. What is EPA Approving Today and Why?

We are approving the Albuquerque/Bernalillo County transportation

conformity rule that the Governor of New Mexico sent us on December 9,

1998, except for New Mexico Administrative Code (NMAC) Title 20,

Chapter 11, Part 03, sections I.2.3, II.2.4, II.7.3--7.6, II.16.5,

II.18.1.B, II.19.1.A, and II.22.2. The rationale for exclusion of these

sections are discussed in section II-E of this action. The AQCB has

adopted the Federal rules in verbatim form except for the interagency

consultation section (40 CFR 93.105) and the grace period for new

nonattainment areas (40 CFR 93.102(d)). We will discuss the reasons for

exclusion of these two sections later in this document.

The Federal Transportation Conformity Rule required the states to

adopt a majority of the Federal rules in verbatim form with a few

exceptions. The States can not make their rules more stringent than the

Federal rules unless the state's rules apply equally to nonfederal as

well as Federal entities. The AQCB's transportation conformity rule is

the same as the Federal rule and the State has made no additional

changes or modifications, with the exception of those sections

mentioned above.

We have evaluated this SIP revision and have determined that the

AQCB has fully adopted the Federal Transportation Conformity Rules as

described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A.

Also, the AQCB has completed and satisfied the public participation and

comprehensive interagency consultations during development and adoption

of these rules at the local level. Therefore, we are approving this SIP

revision.

Our approval action does not include general conformity (40 CFR

part 51, subpart W). We approved the Albuquerque/Bernalillo County

general conformity SIP on September 13, 1996 (61 FR 48407).

C. How Did the AQCB Satisfy the Interagency Consultation Process (40

CFR 93.105)?

Our rule requires the states to develop their own processes and

procedures for interagency consultation among the Federal, State, and

local agencies and resolution of conflicts by meeting the criteria in

40 CFR 93.105. The SIP revisions must include processes and procedures

to be followed by the MPO, State Department of Transportation (DOT),

and the U.S. Department of Transportation (USDOT) in consulting with

the State and local air quality agencies and EPA before making

conformity determinations. Also, the transportation conformity SIP

revision must have processes and procedures for

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the State and local air quality agencies and EPA in coordinating

development of applicable SIPs with MPOs, State DOT, and USDOT.

The AQCB developed its own consultation rule based on the elements

in 40 CFR 93.105, and excluded this section from its rule. As a first

step, the AQCB established an ad hoc multi-agency committee that

included representatives from the State air quality agency, State DOT,

USDOT, MPOs, EPA, the local air quality agency, local transportation

agencies, and local transit operators. The AQCB served as the lead

agency in coordinating the multi-agency efforts for developing the

consultation rule. The committee met approximately biweekly and drafted

consultation rules by considering the elements in 40 CFR 93.105 and 23

CFR part 450, and by integrating the local procedures and processes

into the final consultation rule. The consultation rule developed

through this process is unique to the Albuquerque/Bernalillo County and

is codified under 20 NMAC 11.03.II.3. We have determined that the AQCB

adequately included all elements of 40 CFR 93.105 in their rule and it

meets the EPA SIP requirements.

D. Why Did the AQCB Exclude the Grace Period for New Nonattainment

Areas (40 CFR 93.102(d))?

The AQCB excluded 40 CFR 93.102(d) from its rule. This section

allows up to 12 months for newly designated nonattainment areas to

complete their conformity determination. However, Sierra Club

challenged this section of the rule arguing that allowing a 12 month

grace period was unlawful under the Act. On November 4, 1997, the

United Sates Court of Appeals for the District of Columbia Circuit held

in Sierra Club v. Environmental Protection Agency, No. 96.1007, cited

EPA's grace period violates the plain terms of the Act and, therefore,

is unlawful. Based on this court action, the AQCB has excluded this

section from its rule. We agree with the AQCB's action, and exclusion

of 40 CFR 93.102(d) will not prevent us from approving the State

transportation conformity SIP.

E. What Parts of the Rule Are Excluded?

We promulgated the transportation conformity rule on August 15,

1997. On March 2, 1999, the United States Court of Appeals for the

District of Columbia Circuit issued its opinion in Environmental

Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court

granted the environmental group's petition for review and ruled that 40

CFR 93.102(c)(1), 40 CFR 93.121(a)(1), and 40 CFR 93.124(b) are

unlawful and remanded 40 CFR 93.118(e) and 40 CFR 93.120(a)(2) to EPA

for revision to harmonize these provisions with the requirements of the

Act for an affirmative determination the federal actions will not cause

or increase violations or delay attainment. The sections that were

included in this decision were:

(a) 40 CFR 93.102(c)(1) which allowed certain projects for which

the NEPA process has been completed by the DOT to proceed toward

implementation without further conformity determinations during a

conformity lapse,

(b) 40 CFR 93.118(e) which allowed use of motor vehicle

emissions budgets (MVEB) in the submitted SIPs after 45 days if EPA

had not declared them inadequate,

(c) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a

disapproved SIP for 120 days after disapproval,

(d) 40 CFR 93.121(a)(1) which allowed the nonfederally funded

projects to be approved if included in the first three years of the

most recently conforming transportation plan and transportation

improvement programs, even if conformity status is currently lapsed,

and

(e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP

that allocated portions of a safety margin to transportation

activities for conformity purposes before EPA approval.

Since the States were required to submit transportation conformity

SIPs not later than August 15, 1998, and include those provisions in

verbatim form, the State's (Albuquerque/Bernalillo County's) SIP

revision includes all those sections which the Court ruled unlawful or

remanded for consistency with the Act. The EPA can not approve these

sections.

We believe that the AQCB has complied with the SIP requirements and

has adopted the Federal rules which were in effect at the time that the

transportation conformity SIP was due to the EPA. If the court had

issued its ruling before adoption and SIP submittal by the AQCB, we

believe the AQCB would have removed these unlawful sections from its

SIP. The AQCB has expended its resources and time in preparing this SIP

and meeting the Act's statutory deadline, and EPA acknowledges the

agency's good faith effort in submitting the transportation conformity

SIP on time and disapprove the entire transportation conformity SIP.

The AQCB will be required to submit a SIP revision in the future

when EPA revises its rule to comply with the court decision. Because

the court decision has invalidated these provisions, we believe that it

would be reasonable to exclude the corresponding sections of the AQCB

rules from this SIP approval action. As a result, we are not taking any

action on 20 NMAC 11.03, sections I.2.3, II.2.4, II.7.3-7.6, II.16.5,

II.18.1.B, II.19.1.A, and II.22.2 of the Albuquerque/Bernalillo County

transportation rules. The conformity determinations affected by these

sections must comply with the relevant requirements of the statutory

provisions of the Clear Air Act underlying the court's decision on

these issues. EPA will be issuing guidance on how to implement these

provisions in the interim prior to EPA amendment of the Federal

transportation conformity rules. Once these Federal rules have been

revised, conformity determinations in the Albuquerque/Bernalillo County

area should comply with the requirements of the revised Federal rule

until corresponding provisions of the State's conformity SIP have been

approved by EPA.

III. Opportunity for Public Comments

The EPA is publishing this rule without prior proposal because we

view this as a noncontroversial amendment and anticipate no adverse

comment. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a separate document that will

serve as the proposal to approve this SIP revision if adverse comments

are filed. This rule will be effective on September 7, 1999 without

further notice unless we receive adverse comment by August 9, 1999. If

EPA receives adverse comment, 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

at this time.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB a description

of the extent of EPA's prior consultation with representatives of

affected State, local

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and tribal governments, the nature of their concerns, copies of any

written communications from the governments, and a statement supporting

the need to issue the regulation. In addition, E.O. 12875 requires EPA

to develop an effective process permitting elected officials and other

representatives of State, local and tribal governments to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that: (1) Is determined to be ``economically

significant'' as defined under E.O. 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because it approves a State program.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to OMB, in a separately identified section of the preamble to

the rule, a description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally

requires an agency to conduct a regulatory flexibility analysis of any

rule subject to notice and comment rulemaking requirements unless the

agency certifies that the rule will not have a significant economic

impact on a substantial number of small entities. Small entities

include small businesses, small not-for-profit enterprises, and small

governmental jurisdictions. This final rule will not have a significant

impact on a substantial number of small entities because SIP approvals

under section 110 and subchapter I, part D of the Act do not create any

new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Act

forbids EPA to base its actions concerning SIPs on such grounds. See

Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated annual costs to State,

local, or tribal governments in the aggregate; or to private sector, of

$100 million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves preexisting requirements under State or local law, and imposes

no new requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

G. Submission to Congress and the Comptroller General

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. The 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. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by September 7, 1999. 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,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Transportation conformity, Transportation--air

quality planning, Volatile organic compounds.

[[Page 36790]]

Dated: June 9, 1999.

W.B. Hathaway,

Acting Regional Administrator, Region 6.

Part 52, Chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

Subpart GG--New Mexico

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

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

2. Section 52.1620(c) is amended by adding the following citation

and part 3 entry to the end of the first table to 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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New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality

* * * * * *

*

New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County

Air Quality Control Board (AQCB)

Part 03............. Transportation 07/01/98 July 8, 1999. 64 (1) No action is taken on sections

Conformity. FR 36790. I.2.3., II.2.4, II.7.3-7.6, II.16.5,

II.18.1.B, II.19.1.A, and II.22.2.

and (2) this rule supersedes

Regulation 42 codified under

Albuquerque-Bernalillo County, Air

Quality Control Regulations.

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[FR Doc. 99-17204 Filed 7-7-99; 8:45 am]

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