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 Environmental Protection Agency 40 CFR Part 52
[EPA-R01-OAR-2007-1054; A-1-FRL-8524-9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Direct final rule.
 SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine. This revision establishes transportation conformity criteria and procedures related to interagency consultation and enforceability of certain transportation-related control measures and mitigation measures. The intended effect of this action is to approve State criteria and procedures to govern transportation conformity determinations. This action is being taken in accordance with the Clean Air Act.
 DATES: This direct final rule will be effective April 8, 2008, unless EPA receives adverse comments by March 10, 2008. 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-2007-1054 by one of the following methods: 1. 
                        *www.regulations.gov:*
                         Follow the on-line instructions for submitting comments. 2. 
                        *E-mail: arnold.anne@epa.gov.* 3. 
                        *Fax:*
                         (617) 918-0047. 4. 
                        *Mail:*
                         “Docket Identification Number EPA-R01-OAR-2007-1054”, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023. 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, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. 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 to 4:30, excluding legal holidays. *Instructions:*
                         Direct your comments to Docket ID No. EPA-R01-OAR-2007-1054. 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 e-mail, 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 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 
                        ( print page 7466)
                        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, One Congress Street, Suite 1100, 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; the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.
 FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number (617) 918-1668, fax number (617) 918-0668, e-mail 
                        *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. Transportation Conformity Provisions of SAFETEA-LU II. State Submittal III. Final Action IV. Statutory and Executive Order Reviews I. Background and Purpose On October 3, 2007, the State of Maine submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a new regulation “Chapter 139 Transportation Conformity” to implement Section 176(c)(4)(E) of the Clean Air Act as amended (42 U.S.C. 7401, 
                    *et seq.*), with respect to the conformity of transportation plans, programs and projects which are developed, funded, or approved by the United States Department of Transportation (U.S. DOT), and by Metropolitan Planning Organizations (MPOs) or other recipients of funds under Title 23 U.S.C. or the Federal Transit Laws (Title 49 U.S.C. Chapter 53). 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 (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. B. Transportation Conformity Provisions of SAFETEA-LU 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). 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. II. State Submittal Maine's “Chapter 139: Transportation Conformity,” includes provisions addressing: applicability; definitions; priority of projects; consultation roles, responsibilities, and procedures; public notice; and project-level mitigation and control measures. We have reviewed Maine's submittal to assure consistency with the current Clean Air Act, as amended by SAFETEA-LU, and EPA regulations (40 CFR part 93 and 40 CFR 51.390) governing state procedures for transportation conformity and interagency consultation and have concluded that the submittal is approvable. Specifically, Maine's rule adequately addresses the three sections of the Federal rule discussed above. IV. Final Action EPA is approving Maine's “Chapter 139 Transportation Conformity,” and incorporating this regulation into the Maine 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 
                    ( print page 7467)
                    should relevant adverse comments be filed. This rule will be effective April 8, 2008 without further notice unless the Agency receives relevant adverse comments by March 10, 2008. 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 April 8, 2008 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. 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), because it 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 approves a state rule implementing a Federal standard. 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 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 April 8, 2008. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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
Incorporation by reference
Intergovernmental relations
Lead
Nitrogen dioxide
Ozone
Particulate matter
Reporting and recordkeeping requirements
Sulfur oxides
Volatile organic compounds
 Dated: January 24, 2008. Ira W. Leighton, 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—[AMENDED]
 1.The authority citation for part 52 continues to read as follows: Authority:
                        42 U.S.C. 7401, 
                            *et seq.* Subpart U—Maine
 2.Section 52.1020 is amended by adding paragraph (c)(64) to read as follows: § 52.1020
  
 (c) * * * (64) Revisions to the State Implementation Plan submitted by the Maine Department of Environmental Protection on October 3, 2007. (i) Incorporation by reference. (A) Maine Administrative Procedure Act (MAPA) 1 Form which provides certification that the Attorney General approved Chapter 139 “Transportation Conformity,” as to form and legality, dated September 10, 2007. (B) Chapter 139 of the Maine Department of Environmental Protection Regulations, “Transportation Conformity,” effective in the State of Maine on September 19, 2007. (ii) Additional materials. (A) Nonregulatory portions of the submittal.
 
 
 3.In § 52.1031, Table 52.1031 is amended by adding a new entry for state citation Chapter 139 to read as follows: § 52.1031
  
 Table 52.1031.—EPA-Approved Rules and Regulations
State 
                                     citation
Title/subject
Date 
                                     adopted by  
                                     State
Date 
                                     approved  
                                     by EPA
Federal Register citation
52.1020*         *         *         *         *         *         *139
Transportation Conformity
9/19/07
2/08/08
[Insert Federal Register page number where the document begins]
(c) 64*         *         *         *         *         *         *Note.—1. The regulations are effective statewide unless stated otherwise in comments section.


[FR Doc. E8-2247 Filed 2-7-08; 8:45 am] BILLING CODE 6560-50-P