Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Approval of Revision To Rescind Portions of the Ohio
Transportation Conformity Regulations
[Federal Register: April 27, 2007 (Volume 72, Number 81)]
[Rules and Regulations]
[Page 20945-20948]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap07-6]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-0155; FRL-8305-3]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Approval of Revision To Rescind Portions of the Ohio
Transportation Conformity Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
January 31, 2007, request from Ohio for a State Implementation Plan
(SIP) revision of the State transportation conformity regulations. Ohio
held a public hearing on these revisions on September 21, 2006. These
revisions rescind the portion of the state transportation conformity
regulations which are no longer consistent with the Federal
transportation conformity regulations. The rescission of the State
regulations will allow the Federal transportation conformity
regulations to govern transportation conformity determinations in Ohio.
DATES: This direct final rule will be effective June 26, 2007, unless
EPA receives written adverse comments by May 29, 2007. If written
adverse comments are received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register informing the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0155, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 886-5824.
4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m to 4:30 p.m. excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-0155. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through http://www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
[[Page 20946]]
comment and with any disk or CD-ROM you submit. 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. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We
recommend that you telephone Patricia Morris, Environmental Scientist,
at (312) 353-8656 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-8656, morris.patricia@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews
I. What Is Transportation Conformity?
Transportation conformity is required under Section 176(c) of the
Clean Air Act to ensure that Federally supported highway, transit
projects, and other activities are consistent with (``conform to'') the
purpose of the SIP. Conformity currently applies to areas that are
designated nonattainment, and those redesignated to attainment after
1990 (maintenance areas) with plans developed under section 175A of the
Clean Air Act for the following transportation related criteria
pollutants: Ozone, particulate matter (PM2.5 and
PM10), carbon monoxide (CO), and nitrogen dioxide
(NO2). 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
national ambient air quality standards (NAAQS). The transportation
conformity regulation is found in 40 CFR part 93 and provisions related
to conformity SIPs are found in 40 CFR 51.390.
II. What Is the Background for This Action?
On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed
into law. SAFETEA-LU revised a number of aspects related to section
176(c) of the Clean Air Act's transportation conformity provisions. One
of the changes was to streamline the requirements for conformity SIPs.
Prior to SAFETEA-LU being signed into law, states were required to
address all of the Federal conformity rule's provisions in their
conformity SIPs. Most of the sections of the Federal rule were required
to be copied verbatim from the Federal rule into a state's SIP, as
previously required under 40 CFR 51.390(d). States were also required
to tailor all or portions of the following three sections of the
Federal rule to meet their state's individual circumstances: 40 CFR
93.105, which addresses consultation procedures; 40 CFR
93.122(a)(4)(ii), which addresses written commitments to control
measures that are not included in a Metropolitan Planning Organizations
transportation plan and transportation improvement program that must be
obtained prior to a conformity determination, and the requirement that
such commitments must be fulfilled; and, 40 CFR 93.125(c) which
addresses written commitments to mitigation measures that must be
obtained prior to a project level conformity determination, and the
requirement that project sponsors must comply with such commitments.
Under SAFETEA-LU, states are required to address and tailor only
these three sections of the conformity rule in their conformity SIPs.
In general, states are no longer required to submit conformity SIP
revisions that address the other sections of the conformity rule. This
provision took effect on August 10, 2005, when SAFETEA-LU was signed
into law.
III. What Did the State Submit and How Did We Evaluate It?
The SIP revision submitted to EPA on January 31, 2007, requests to
rescind the sections of the Ohio Administrative Code (OAC), Chapters
3745-101 Transportation Conformity, which are no longer required. When
the Ohio rules are rescinded, the analagous Federal transportation
conformity regulations will apply instead of the State regulations. The
Federal transportation conformity regulations have been revised to
address court decisions, and to incorporate new regulations to control
PM2.5 and 8-hour ozone levels. The Ohio rules that are being
rescinded are no longer valid under the subsequent court decisions and
the SAFETEA-LU legislation. Approval of the rescission as a SIP
revision will bring this regulatory framework into compliance with
Federal law and regulation.
We have reviewed the submittal to assure consistency with the
February 14, 2006, ``Interim Guidance for Implementing the
Transportation Conformity provisions in the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU)''. The policy guidance document can be found at
http://epa.gov/otaq/stateresources/transconf/policy.htm.
Ohio is requesting approval of rescission of rules 3745-101-05,
3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-101-10, 3745-
101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-16, 3745-101-
18, 3745-101-19, and 3745-101-20. The rules that are not being
rescinded address the consultation procedures and enforceability of
mitigation controls and measures. These sections are still required by
the SAFETEA-LU legislation because they are specific to each State.
IV. What Action Is EPA Taking Today?
Based on the reasons set forth above, EPA is approving the State's
request to rescind the following rules from the Ohio SIP: 3745-101-05,
3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-101-10, 3745-
101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-16, 3745-101-
18, 3745-101-19, and 3745-101-20. These rules are part of OAC 3745-101
Transportation Conformity.
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
written comments are filed. This rule will be effective June 26, 2007
without further notice unless we receive relevant
[[Page 20947]]
adverse written comments by May 29, 2007. If we receive such comments,
we will withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. The EPA will not institute a second
comment period. Any parties interested in commenting on this action
should do so at this time. If we do not receive any comments, this
action will be effective June 26, 2007.
VI. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
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.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' 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).
Regulatory Flexibility Act
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.).
Unfunded Mandates Reform Act
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).
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
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
(59 FR 22951, November 9, 2000).
Executive Order 13132: Federalism
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.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
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 approves a state rule
implementing a Federal standard.
National Technology Transfer Advancement Act
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.
Paperwork Reduction Act
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.).
Congressional Review Act
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 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. 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 June 26, 2007. 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.
Dated: April 12, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
? For the reasons stated in the preamble, part 52, chapter I, of title 40
of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
? 1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK--Ohio
? 2. Section 52.1870 is amended by adding and reserving paragraph
(c)(136) and by adding paragraph (c)(137) to read as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(c) * * *
(136) [Reserved]
(137) On January 31, 2007, Ohio requested to rescind certain
transportation conformity rules from the Ohio State Implementation
Plan, which were previously approved in paragraph (c)(122) of this
section. The rules that are being rescinded at Ohio's request are
[[Page 20948]]
3745-101-05, 3745-101-06, 3745-101-07, 3745-101-08, 3745-101-09, 3745-
101-10, 3745-101-11, 3745-101-12, 3745-101-13, 3745-101-15, 3745-101-
16, 3745-101-18, 3745-101-19, and 3745-101-20.
[FR Doc. E7-7895 Filed 4-26-07; 8:45 am]
BILLING CODE 6560-50-P
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090510213626im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}