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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [EPA-R05-OAR-2007-0155; FRL-8305-3] 

# 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.                         *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                         *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                         *www.regulations.gov*                         or e-mail. The                         *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                         *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                               ( print 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                         *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                         *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                           ( print 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: 

§ 52.1870 

* * * * *

(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                                   ( print 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] 

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