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[Federal Register Volume 78, Number 230 (Friday, November 29, 2013)]
[Rules and Regulations]
[Pages 71504-71508]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28533]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2012-0113; A-1-FRL-9903-21-Region 1]

Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Transportation Conformity and Conformity of General 
Federal Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of New Hampshire. This revision establishes 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. In addition, the 
revision relies on the Federal rule for General Conformity. The 
intended effect of this action is to approve State criteria and 
procedures to govern conformity determinations. This action is being 
taken in accordance with the Clean Air Act.

DATES: This direct final rule is effective January 28, 2014, unless EPA 
receives adverse comments by December 30, 2013. If 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 Number EPA-
R01-OAR-2012-0113 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: arnold.anne@epa.gov.
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0113,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 
02109-3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post 
Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. 
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, 8:30 a.m. to 4:30 p.m., excluding legal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0113. 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 through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
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 email 
comment directly to EPA without going through www.regulations.gov your 
email 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 
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 electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, 5 Post Office 
Square--Suite 100, Boston, MA. 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, 8:30 to 4:30, excluding 
legal holidays.
    In addition, copies of the state submittal are also available for 
public inspection during normal business hours, by appointment at the 
State Air Agency: Air Resources Division, Department of Environmental 
Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-
3912, telephone number (617) 918-1668, fax number (617) 918-0668, email 
cooke.donald@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
    A. What is Transportation Conformity?
    B. What is General Conformity?
    C. Call to States for Conformity SIP Revisions
    D. Transportation Conformity Provisions of Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU)
    E. General Conformity Affected by SAFETEA-LU

[[Page 71505]]

    F. Prior New Hampshire Conformity SIP Revision Action
    G. State Submittal and EPA Evaluation
II. Final Action
III. Statutory and Executive Order Reviews

I. Background and Purpose

    The intent of the conformity requirements is to prevent the air 
quality impacts of Federal actions from causing or contributing to a 
violation of the national ambient air quality standards (NAAQS) or 
interfering with the purpose of a State Implementation Plan (SIP), 
Tribal Implementation Plan (TIP) or Federal Implementation Plan (FIP).

A. 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. The transportation conformity 
regulation is found in 40 CFR Part 93, subpart A and provisions related 
to conformity SIPs are found in 40 CFR 51.390.

B. What is General Conformity?

    General Conformity is a requirement of section 176(c) of the Clean 
Air Act (CAA) Amendments of 1990. General Conformity is a safeguard 
that no action by the Federal government interferes with a SIP's 
protection of the NAAQS. Under General Conformity, any action by the 
Federal government cannot: cause or contribute to any new violation of 
any standard in any area; interfere with provisions in the applicable 
SIP for maintenance of any standard; increase the frequency or severity 
of any existing violation of any standard in any area; or delay timely 
attainment of any standard, any required interim emission reductions, 
or any other milestones, in any area. The general conformity regulation 
is found in 40 CFR Part 93, subpart B and provisions related to 
conformity SIPs are found in 40 CFR 51.851.

C. Call to States for Conformity SIP Revisions

    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect a State, Tribal, or local agency's ability to 
attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 
7506) to the CAA to ensure Federal agencies proposed actions conform to 
the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS. 
That section requires Federal entities to find that the emissions from 
the Federal action will conform with the purposes of the SIP, TIP or 
FIP or not otherwise interfere with the State's or Tribe's ability to 
attain and maintain the NAAQS.
    The CAA Amendments of 1990 clarified and strengthened the 
provisions in section 176(c). Because certain provisions of section 
176(c) apply only to highway and mass transit funding and approvals 
actions, EPA published two set of regulations to implement section 
176(c). The Transportation Conformity Regulations, (40 CFR Part 51, 
Subpart T, and 40 CFR Part 93, Subpart A) first published on November 
24, 1993 (58 FR 62188), address Federal actions related to highway and 
mass transit funding and approval actions. The General Conformity 
Regulations, (40 CFR Part 51, Subpart W, and 40 CFR Part 93, Subpart B) 
published on November 30, 1993 (58 FR 63214), cover all other Federal 
actions. These two conformity regulations have been revised numerous 
times.
    When promulgated in 1993, the Federal transportation conformity 
rule at 40 CFR 51.395 mandated that the transportation conformity SIP 
revision incorporate several provisions of the rule \1\ in verbatim 
form, except in so far as needed to give effect to a stated intent in 
the revision to establish criteria and procedures more stringent than 
the requirements stated in these sections. Similarly, 40 CFR 51.851 
required the State's general conformity provisions must contain 
criteria and procedures that are no less stringent than the Federal 
general conformity regulation, however the State could establish more 
stringent general conformity criteria and procedures if they apply 
equally to non-Federal, as well as Federal, entities.
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    \1\ Specifically, those sections are: Sec. Sec.  51.392, 51.394, 
51.398, 51.400, 51.404, 51.410, 51.412, 51.414, 51.416, 51.418, 
51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432. 51.434, 
51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 51,448, 51.450, 
51.460, and 51.462.
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D. Transportation Conformity Provisions of Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

    On August 10, 2005, the SAFETEA-LU was signed into law streamlining 
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).
    Under SAFETEA-LU, states are required to address and tailor only 
three sections of the conformity rule in their conformity SIPs. These 
three sections of the Federal rule which must meet a state's individual 
circumstances are: 40 CFR 93.105, which addresses consultation 
procedures; 40 CFR 93.122(a)(4)(ii), which requires that written 
commitments be obtained for control measures that are not included in a 
Metropolitan Planning Organization's transportation plan and 
transportation improvement program prior to a conformity determination, 
and that such commitments be fulfilled; and, 40 CFR 93.125(c) which 
requires that written commitments be obtained for mitigation measures 
prior to a project level conformity determination, and that project 
sponsors must comply with such commitments. 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.

E. General Conformity Affected by SAFETEA-LU

    On April 5, 2010, EPA revisited the Federal General Conformity 
Requirements Rule to clarify the conformity process, authorize 
innovative and flexible compliance approaches, remove outdated or 
unnecessary requirements, reduce the paperwork burden, provide 
transition tools for implementing new standards, address issues raised 
by Federal agencies affected by the rules, and provide a better 
explanation of conformity regulations and policies. EPA's April 2010 
revised rule simplified state SIP requirements for general conformity, 
eliminating duplicative general conformity provisions codified at 40 
CFR Part 93, Subpart B and 40 CFR Part 51, Subpart W. Finally, the 
April 2010 revision updated the Federal General Conformity Requirements 
Rule

[[Page 71506]]

to reflect changes to governing laws passed by Congress since EPA's 
1993 rule. The SAFETEA-LU passed by Congress in 1995 contains a 
provision eliminating the CAA requirement for states to adopt general 
conformity SIPs. As a result of SAFETEA-LU, EPA's April 2010 General 
Conformity rule eliminated the Federal regulatory requirement for 
states to adopt and submit general conformity SIPs, instead making 
submission of a general conformity SIP a state option.

F. Prior New Hampshire Conformity SIP Revision Action

    On August 16, 1999 (64 FR 44417), EPA approved New Hampshire's Part 
Env-A 1502, Conformity of General Federal Actions. New Hampshire's rule 
references the Federal General Conformity rule (40 CFR Part 51, Subpart 
W).

G. State Submittal and EPA Evaluation

    On December 9, 2011, the State of New Hampshire submitted a SIP 
revision consisting of additions and amendments to Env-A 1500, 
Conformity. The revised rule includes requirements for establishing a 
consultative process relative to transportation conformity 
determinations. Amendments to New Hampshire State Regulation Env-A 1500 
were made to (1) clarify the rules by adding certain definitions, 
deleting definitions that are not needed, and revising existing 
provisions so they are more readily understandable; (2) updating the 40 
Code of Federal Regulations (CFR) part 93 references and otherwise 
aligning the rules with current federal requirements; (3) removing the 
State requirement for a minimum 30-day public comment period for 
conformity determinations as this is not a federal requirement and 
establishing alternative, more appropriate timeframes through 
interagency consultative process; and (4) consolidating provisions and 
definitions that are common to both transportation conformity and 
general conformity.
    We have reviewed New Hampshire's submittal to assure consistency 
with the current Clean Air Act, as amended by SAFETEA-LU, and EPA 
regulations governing state procedures for transportation conformity 
and interagency consultation (40 CFR Part 93, Subpart A and 40 CFR 
51.390) and have concluded that the submittal is approvable. 
Specifically, New Hampshire's rule at Env-A 1503 Transportation 
Conformity adequately addresses the three sections of the Federal 
transportation conformity rule discussed above (consultation 
procedures, written commitments for control measures and mitigation 
measures, and project sponsors compliance with such commitments). EPA 
notes that New Hampshire's conformity regulation at sections Env-A 
1503.20 and 1503.21 require entities to obtain written commitments but 
does not explicitly require parties to comply with those commitments. 
However, as stated in 40 CFR 51.390(a), ``The federal conformity 
regulations contained in part 93, subpart A, of this chapter would 
continue to apply for the portion of the requirements that the state 
did not include in its conformity implementation plan and the portion, 
if any of the state's conformity provisions that is not approved by 
EPA.'' Therefore, 40 CFR 93.122(a)(4)(i) and 93.125(b) which explicitly 
state that entities ``must comply with the obligations of such 
commitments'' would continue to apply and this omission in New 
Hampshire's rule is not an issue.
    We also reviewed New Hampshire's submittal to assure consistency 
with the current Clean Air Act, as amended by SAFETEA-LU, and EPA 
regulations governing state procedures for general conformity (40 CFR 
Part 93, Subpart B and 40 CFR 51.851). New Hampshire's administrative 
rule Env-A 1504 Conformity of General Federal Actions, adequately 
refers to the general conformity Federal rule for implementation.
    In addition, New Hampshire's December 9, 2011 SIP revision meets 
the requirements set forth in section 110 of the CAA with respect to 
adoption and submission of SIP revisions. As a result of this action, 
New Hampshire's previously SIP-approved general conformity procedures 
for New Hampshire Env-A 1502 (August 16, 1999; 64 FR 44417) will be 
replaced by Env-A 1500 the procedures submitted to EPA on December 9, 
2011 for approval, and adopted by State of New Hampshire on September 
11, 2011 with a State effective date of October 1, 2011. The approval 
of New Hampshire's conformity SIP revision will strengthen the New 
Hampshire SIP and will assist the state in complying with Federal 
NAAQS. Therefore, EPA is approving New Hampshire's revision to its 
conformity SIP to comply with the most recent Federal Conformity 
Requirements.

II. Final Action

    EPA is approving New Hampshire's Env-A 1500 Conformity into the New 
Hampshire SIP.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment 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 
relevant adverse comments be filed. This rule will be effective January 
28, 2014 without further notice unless the Agency receives relevant 
adverse comments by December 30, 2013.
    If the EPA receives such comments, then EPA will publish a notice 
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 on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on January 28, 2014 and no further action will 
be taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities

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under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    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 action 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 January 28, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 8, 2013.
Michael Kenyon,
Acting Regional Administrator, EPA New England.
    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart EE--New Hampshire

0
2. Section 52.1520 table in paragraph (c) is amended by revising the 
entry for ``Env-A 1500'' to read as follows:

Sec.  52.1520  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                     EPA Approved New Hampshire Regulations
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                                                       State
     State citation            Title/subject      effective date   EPA approval date \1\       Explanations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Env-A 1500..............  Conformity............       10/1/2011  11/29/2013............  ......................
                                                                  [Insert Federal
                                                                   Register page number
                                                                   where the document
                                                                   begins].
 
                                                 * * * * * * *
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\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

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[FR Doc. 2013-28533 Filed 11-27-13; 8:45 am]
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