[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Rules and Regulations]
[Page 53883-53887]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-7]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC-107-200338(a); FRL-7557-9]
Approval and Promulgation of Implementation Plans; North
Carolina: Mecklenburg-Union Transportation Conformity Interagency
Memorandum of Agreement
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a revision to the North Carolina State
Implementation Plan (SIP) that contains the transportation conformity
memorandum of agreement with the Mecklenburg-Union Metropolitan
Planning Organization and others. The memorandum of agreement
establishes procedures for consultation as part of the transportation
conformity provisions. This EPA approval action allows direct
consultation among agencies at the local level. This final approval
action is limited to Transportation Conformity.
DATES: This direct final rule is effective on November 14, 2003,
without further notice, unless EPA receives adverse comment by October
15, 2003. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that this rule will not take effect.
ADDRESSES: All comments should be addressed to Kelly Sheckler at the
Air Planning Branch, EPA, Region 4, 61 Forsyth Street, SW., Atlanta,
Georgia 30303-8960. Comments may also be submitted electronically, or
through hand delivery/courier. Please follow the detailed instructions
described in sections I.B.1.i. through iii. of the SUPPLEMENTARY
INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Quality Modeling
and Transportation Section, Air Planning 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) 562-9042. Ms. Sheckler can also be reached
via electronic mail at sheckler.kelly@epa.gov.
SUPPLEMENTARY INFORMATION: Outlined below are the contents of this
document:
I. General Information
II. 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 Submit a Transportation Conformity SIP?
E. How Does Transportation Conformity Work?
III. Approval of the State Transportation Conformity Rule
A. What Did the State Submit?
B. What is EPA Approving Today and Why?
C. How Did the State Satisfy the Interagency Consultation
Process (40 CFR 93.105)?
IV. Final Action
V. Statutory and Executive Order Reviews
I. General Information
A. How Can I Get Copies of This Document and Other Related Information?
1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. EPA
has established an official public rulemaking file for this action
under NC 107. The official public file consists of the documents
specifically referenced in this action, any public comments received,
and other information related to this action. Although a part of the
official docket, the public rulemaking file does not include
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. The official public rulemaking
file is the collection of materials that is available for public
viewing at the Regulatory Development Section, Air Planning 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
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 9 to 3:30, excluding federal
holidays.
2. Copies of the State submittal and EPA's technical support
document are also available for public inspection during normal
business hours, by appointment at the State Air Agency. North Carolina
Department of Environmental and Natural Resources, 2728 Capital
Boulevard, Raleigh, North Carolina 27604.
3. Electronic Access. You may access this Federal Register document
electronically through the Regulation.gov Web site located at http://www.regulations.gov
where you can find, review, and submit comments on
Federal rules that have been published in the Federal Register, the
Government's legal newspaper, and are open for comment.
For public commentors, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, CBI, or other information whose disclosure is
restricted by statute. When EPA identifies a comment containing
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copyrighted material, EPA will provide a reference to that material in
the version of the comment that is placed in the official public
rulemaking file. The entire printed comment, including the copyrighted
material, will be available at the Regional Office for public
inspection.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate rulemaking identification number by including the text
``Public comment on proposed rulemaking NC 107'' in the subject line on
the first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. 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.
i. E-mail. Comments may be sent by electronic mail (e-mail) to
sheckler.kelly@epa.gov, please include the text ``Public comment on
proposed rulemaking NC 107'' in the subject line. EPA's e-mail system
is not an ``anonymous access'' system. If you send an e-mail comment
directly without going through Regulation.gov, EPA's e-mail system
automatically captures your e-mail address. E-mail addresses that are
automatically captured by EPA's e-mail system are included as part of
the comment that is placed in the official public docket.
ii. Regulation.gov. Your use of Regulation.gov is an alternative
method of submitting electronic comments to EPA. Go directly to
Regulation.gov at http://www.regulations.gov, then select Environmental
Protection Agency at the top of the page and use the go button. The
list of current EPA actions available for comment will be listed.
Please follow the online instructions for submitting comments. The
system is an ``anonymous access'' system, which means EPA will not know
your identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Section 2, directly
below. These electronic submissions will be accepted in WordPerfect,
Word or ASCII file format. Avoid the use of special characters and any
form of encryption.
2. By Mail. Send your comments to: Kelly Sheckler, Air Quality
Modeling and Transportation, Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please
include the text ``Public comment on proposed rulemaking NC 107'' in
the subject line on the first page of your comment.
3. By Hand Delivery or Courier. Deliver your comments to: Kelly
Sheckler, Air Quality Modeling and Transportation Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division 12th floor, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 9 to 3:30,
excluding federal holidays.
C. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the FOR FURTHER INFORMATION CONTACT section.
D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate
regional file/rulemaking identification number in the subject line on
the first page of your response. It would also be helpful if you
provided the name, date, and Federal Register citation related to your
comments.
II. Background
A. What Is a SIP?
The states, under section 110 of the Clean Air Act (herein referred
to as 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 EPA. The Act, under
section 109, established these NAAQS which currently address 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
EPA for approval and incorporation into the Federally enforceable SIP,
which protects air quality and contains emission control plans for
NAAQS nonattainment areas. These SIPs can be extensive, containing
state regulations
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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 comment period, public
hearing, 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 EPA for inclusion in the Federally
enforceable SIP. EPA must then determine the appropriate Federal
action, provide public notice, and request additional public comment on
the action. The possible Federal actions include: Approval,
disapproval, conditional approval and limited approval/disapproval. If
adverse comments are received, EPA must consider and address the
comments before taking final action. EPA incorporates state regulations
and supporting information (sent under section 110 of the Act) into the
Federally approved SIP through the approval action. EPA maintains
records of all such SIP actions in the CFR at Title 40, part 52,
entitled ``Approval and Promulgation of Implementation Plans.'' The EPA
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 as a requirement 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 1990 Amendments to the Act
expanded the scope and content of the conformity concept by defining
conformity to a SIP. 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. The requirements of section 176(c) of
the Clean Air Act apply to all departments, agencies and
instrumentalities of the Federal government. Transportation conformity
refers only to the conformity of transportation plans, programs and
projects that are funded or approved under title 23 U.S.C. of the
Federal Transit Ac (49 U.S.C. chapter 53).
D. Why Must the State Submit a Transportation Conformity SIP?
A transportation conformity SIP is a plan which contains criteria
and procedures for the Department of Transportation (DOT), Metropolitan
Planning Organizations (MPOs), and other state or local agencies to
assess the conformity of transportation plans, programs and projects to
ensure that they do not cause or contribute to new violations of a
NAAQS in the area substantially affected by the project, increase the
frequency or severity of existing violations of a standard in such area
or delay timely attainment. 40 CFR 51.390, subpart T requires states to
submit a SIP that establishes criteria for conformity to EPA. 40 CFR
part 93, subpart A, provides the criteria the SIP must meet to satisfy
40 CFR 51.390. EPA was 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.
EPA published the first transportation conformity rule in the
November 24, 1993, Federal Register (FR), and it was codified at 40 CFR
part 51, subpart T and 40 CFR part 93, subpart A. EPA required the
states to adopt and submit a transportation conformity SIP revision to
the appropriate EPA Regional Office. EPA 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 codified the
revisions 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. of the Federal Transit Laws (62 FR
43780). EPA's action of August 15, 1997, required the states to change
their rules and submit a SIP revision to EPA by August 15, 1998. States
may choose to develop in place of regulations, a memorandum of
agreement (MOA) which establishes the roles and procedures for
transportation conformity. The MOA includes the detailed consultation
procedures developed for that particular area. The MOA's are
enforceable through the signature of all the transportation and air
quality agencies, including the Federal Highway Administration, Federal
Transit Administration and the Environmental Protection Agency.
E. How Does Transportation Conformity Work?
The Federal or state transportation conformity rule applies to all
NAAQS nonattainment and maintenance areas in the state. The
Metropolitan Planning Organization (MPO), the State Department of
Transportation (DOT) (in absence of a MPO), and U.S. Department of
Transportation (USDOT) make conformity determinations. These agencies
make conformity determinations on programs and plans such as
transportation improvement programs (TIP), transportation plans, and
projects. The MPOs calculate the projected emissions that will result
from implementation of the transportation plans and programs and
compare those calculated emissions to the motor vehicle emissions
budget established in the SIP. The calculated emissions must be equal
to or smaller than the Federally approved motor vehicle emissions
ceiling in order for USDOT to make a positive conformity determination
with respect to the SIP.
III. Approval of the State Transportation Conformity Rule
A. What Did the State Submit?
The State of North Carolina chose to address the transportation
conformity SIP requirement through the statewide rules for all portions
of the conformity rule with the exception of 93.105, which was done
through the development of individual nonattainment/maintenance area
MOAs. EPA approved the North Carolina transportation conformity rules
on December 27, 2002 (67 FR 78983). In addition, the MOA's establishing
consultation procedures for six areas was approved in the December 27,
2002, rulemaking that approved the state rules for transportation
conformity. The Mecklenburg-Union Metropolitan Planning Organization
(MUMPO) Area was not submitted for approval with the other MOA's. On
August 1, 2003, the
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Director of the North Carolina Department of Environment and Natural
Resources (DENR) submitted the MUMPO nonattainment/maintenance area
consultation interagency MOA, to EPA as a revision to the SIP.
B. What Is EPA Approving Today and Why?
EPA is approving the MUMPO interagency consultation MOA submitted
to the EPA Region office on August 1, 2003 by the Director of the North
Carolina DENR. EPA has evaluated this SIP revision and has determined
that the State has met the requirements of Federal transportation
conformity rule as described in 40 CFR part 51, subpart T and 40 CFR
part 93, subpart A. The North Carolina DENR has satisfied the public
participation and comprehensive interagency consultation requirement
during development and adoption of the MOA at the local level.
Therefore, EPA is approving the MOA as a revision to the North Carolina
SIP.
C. How Did the State Satisfy the Interagency Consultation Process (40
CFR 93.105)?
EPA's 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 meeting the criteria in 40
CFR 93.105. The SIP revision must include processes and procedures to
be followed by the MPO, state DOT, and USDOT in consulting with the
state and local air quality agencies and EPA before making conformity
determinations. The transportation conformity SIP revision must also
include processes and procedures for the state and local air quality
agencies and EPA to coordinate the development of applicable SIPs with
MPOs, state DOTs, and USDOT.
The State of North Carolina developed the MUMPO interagency
consultation MOA based on the elements contained in 40 CFR 93.105. As a
first step, the State worked with the existing transportation planning
organization's interagency committee that included representatives from
the State and local air quality agencies, State Department of
Transportation, MUMPO, Federal Highway Administration-North Carolina,
Federal Transit Administration, Transit Authority and EPA. The
interagency committee met regularly and drafted the consultation rules
considering elements in 40 CFR 93.105 and 23 CFR part 450, and
integrated the local procedures and processes into the consultation
MOA. The consultation process developed in this MOA is unique to the
Mecklenburg-Union Area. The MOA is enforceable against the parties by
their signed consent in the MOA. EPA has determined that the State
adequately included all elements of 40 CFR 93.105 and that the MOA
meets the EPA SIP requirements.
IV. Final Action
EPA is approving the aforementioned changes to the SIP. The 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 November 14, 2003
without further notice unless the Agency receives adverse comments by
October 15, 2003.
If the 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. The 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 November 14, 2003 and no
further action will be taken on the proposed rule. Please note that if
we receive 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.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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
[[Page 53887]]
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. section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 14, 2003. 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,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: August 28, 2003.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. Section 52.1770(e) is amended by adding a new entry at the end of
the table for ``Mecklenburg-Union Interagency Transportation Conformity
Memorandum of Agreement'' to read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(e) * * *
EPA Approved North Carolina Non-Regulatory Provisions
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State effective
Provision date EPA approval date Federal Register citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Mecklenburg-Union Interagency 08/07/03 09/15/03 [Insert FR page citation]
Transportation Conformity
Memorandum of Agreement.
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[FR Doc. 03-23266 Filed 9-12-03; 8:45 am]
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