02-32549. Approval and Promulgation of Implementation Plans North Carolina: Approval of Revisions to North Carolina State Implementation Plan: Transportation Conformity Rule and Interagency Memorandum of Agreements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving a revision to the North Carolina State Implementation Plan (SIP) with the exception of one state regulation pertaining to triggers. The revision contains the transportation conformity rule pursuant to the Clean Air Act as amended in 1990 (Act) and seven memoranda of agreements that establish procedures for consultation as part of the transportation conformity provisions. The transportation conformity rule assures that projected emissions from transportation plans, improvement programs and projects in air quality nonattainment or maintenance areas stay within the motor vehicle emissions ceiling contained in the SIP. The transportation conformity SIP revision enables the State to implement and enforce the Federal transportation conformity requirements at the state level per regulations for 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. This EPA approval action streamlines the conformity process to allow direct consultation among agencies at the local level. This final approval action is limited to requirements for Transportation Conformity. Rationale for approving this SIP revision is provided in the Supplemental Information section of this action.

DATES:

This direct final rule is effective on February 25, 2003, without further notice, unless EPA receives adverse comment before January 27, 2003. If adverse comments are 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 EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

Copies of the State submittal(s) are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 4, Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Kelly Sheckler, 404/562-9042.

North Carolina Department of Environment and Natural Resources, 2728 Capital Boulevard, Raleigh, North Carolina 27604.

FOR FURTHER INFORMATION CONTACT:

Kelly Sheckler at 404/562-9042, e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Outlined below are the contents of this document:

I. 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?

II. 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)?

III. Final Action

IV. Administrative Requirements

I. Background

A. What Is a SIP?

The states, under section 110 of the Act, must develop air pollution regulations and control strategies to ensure that state air quality meets 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 area. These SIPs can be extensive, containing state regulations 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. or the Federal Transit Act (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. The transportation conformity rule required the states to adopt and submit a transportation conformity SIP revision to the appropriate EPA Regional Office by November 25, 1994. The State of North Carolina submitted a transportation conformity SIP to the EPA Region 4 on November 15, 1994. EPA did not take action on this SIP because the Agency was in the process of revising the transportation conformity requirements. 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 MOAs 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 Organizations (MPO), the State Department of Transportation (DOT) (in absence of a MPO), State and local Air Quality Agencies , U.S. Environmental Protection Agency and U.S. Department of Transportation (USDOT) are involved in the process of making conformity determinations. Conformity determinations are made 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 budget in order for USDOT to make a positive conformity determination with respect to the SIP.

II. 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 requirements using a combination of rules and MOAs. All portions of the conformity rule, with the exception of 40 CFR 93.105, were developed as a state rule, applicable to all areas subject to conformity in the state. For the consultation procedures in 40 CFR 93.105, the state chose to develop a MOA for each individual nonattainment/maintenance area. On April 13, 1998, the State of North Carolina, through the Department of Environment and Natural Resources (DENR), submitted the rules for transportation conformity. The consultation procedures for individual MOAs were not included with this submittal. The Environmental Management Commission (EMC) of North Carolina amended North Carolina Air Quality rules to adopt revisions to 15A NCAC 2D .2000, Transportation Conformity. [Authority G.S. 150B-21.19]. DENR gave notice of rule-making proceedings to the public on April 15, 1998, Notice of text on August 3, 1998 and hearing on August 20, 1998. The agency adopted the revisions on October 10, 1998, effective on April 1, 1999. MOAs for Greensboro, High Point, Durham, Raleigh (CAMPO), Durham-Chapel Hill (DCHC), and Winston-Salem were signed by all parties and submitted to EPA for approval into the SIP on July 19, 2002. To fully meet the requirements of the Transportation Conformity Rule, the Mecklenburg-Union interagency consultation agreement will need to be submitted as a revision to the SIP. A separate action to approve that MOA will be taken once the state submits it to EPA.

B. What Is EPA Approving Today and Why?

EPA is approving the North Carolina transportation conformity rule submitted to the EPA Region office on April 13, 1999 by the Director of the North Carolina DENR. One exception is the approval of state regulation .2003, which is the only portion of the state rule that will not be approved in today's action. State regulation .2003 requires compliance with 40 CFR 93.104 of the conformity rule. The state adopted this provision prior to EPA's rulemaking change to 40 CFR 93.104(e). The August 2002, rulemaking changes the starting point for eighteen month clocks that are currently running for areas with initial SIP submissions, so that these areas are given the full eighteen months after EPA's adequacy finding to determine conformity to their SIPs. In other words, in areas where a SIP has been submitted and EPA is currently reviewing it for adequacy, the eighteen-month clock required by 40 CFR 93.104(e) (2) will now not start until the effective date of our adequacy finding. For areas that have submitted initial SIPs that EPA has already found adequate and to which conformity has not yet been determined, the August rule restarts the eighteen-month clock from the effective date of EPA's positive adequacy finding. For more information on the eighteen-month conformity requirement for initial SIP submissions see the August 6, 2002 final rule (67 FR 50808).

EPA has evaluated this SIP revision and the seven MOA's and has determined that the SIP requirements of the Federal transportation conformity rule as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A have been met. The North Carolina DENR has satisfied participation and comprehensive interagency consultation requirements due to the adoption of the SIP and MOAs at the local level. Therefore, EPA is approving this 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 the process and procedures to be followed by the MPO, State DOT, Federal Highway Administration (FHWA), Federal Transit Administration (FTA), the state and local air quality agencies and EPA before making conformity determinations. The transportation conformity SIP revision must include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPS with MPOs, states DOTs, FHWA and FTA.

The State of North Carolina developed its consultation rule based on the elements contained in 40 CFR 93.105, and included it in the MOAs. As a first step, the State worked with each of the MPOs through existing monthly statewide interagency committee meetings. The interagency committee includes representatives from the state air quality agency-DENR, NCDOT, FHWA-NC Division, FTA-Region 4, EPA Region 4, Capital Area MPO, Mecklenburg-Union MPO, Greensboro MPO, Gaston MPO, Winston-Salem MPO, Durham MPO, High Point MPO, and the Mecklenburg County Department of Environmental Protection. The interagency committee met regularly and drafted the consultation rules considering elements in 40 CFR 93.105, and integrated the local transportation planning and local and state SIP processing procedures and processes into the consultation MOAs for each nonattainment/maintenance area. The consultation process developed in these MOAs are unique to the State of North Carolina. The MOA's are enforceable against the parties by their signed consent in the MOA.

III. Final Action

EPA is approving the aforementioned changes to the SIP, with one exception o section .2003 which requires the state comply with outdated conformity rule trigger provisions. Because the state adopted this regulation prior to EPA's rulemaking amending 40 CFR 93.104(e), this action approves state regulation .2003 with the exception of its reference to 40 CFR 93.104(e). All other revisions are consistent with Clean Air Act and EPA regulatory requirements. In addition, EPA is approving the aforementioned seven MOA's.

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 February 25, 2003 without further notice unless the Agency receives adverse comments by January 27, 2003.

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.

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 February 25, 2003 and no further action will be taken on the proposed rule.

IV. Administrative Requirements

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. section 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. 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 February 25, 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
• Hydrocarbons
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

Dated: October 21, 2002.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR Part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart II—North Carolina

2. Section 52.1770 is amended:

a. In paragraph (c), Table 1 is amended under subchapter 2D by adding in numerical order a new section “.2000 Transportation Conformity”.

b. By adding and reserving paragraph (d).

c. By adding a new paragraph (e).

The additions read as follows:

§ 52.1770

Identification of plan.

* * * * *

(c) * * *

Table 1.—EPA Approved North Carolina Regulations

State citation	Title/subject	State effective date	EPA approval date	Comments
Subchapter 2D	Air Pollution Control Requirements
*         *         *         *         *         *         *
Section .2000 Transportation Conformity
Sect. .2001	Purpose, Scope and Applicability	04/01/99	12/27/02
Sect. .2002	Definitions	04/01/99	12/27/02
Sect. .2003	Transportation Conformity Determination	04/01/99	12/27/02	Except for the incorporation by reference of 40 CFR 93.104(e) of the Transportation Conformity Rule.
Sect. .2004	Determining transportation Related Emissions	04/01/99	12/27/02
Sect. .2005	Memorandum of Agreement	04/01/99	12/27/02

* * * * *

(d) [Reserved]

(e) EPA Approved North Carolina Non-regulatory Provisions.

EPA Approved North Carolina Non-regulatory Provisions

Provision	State effective date	EPA approval date	Federal Register citation
Capital Area, North Carolina Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]
Durham-Chapel Hill Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]
Winston-Salem Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]
High Point Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]
Greensboro Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]
Gaston, North Carolina Interagency Transportation Conformity Memorandum of Agreement	1/01/02	12/27/02	[insert FR page citation from publication date]