
[Federal Register Volume 78, Number 219 (Wednesday, November 13, 2013)]
[Rules and Regulations]
[Pages 67952-67956]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27019]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0228; FRL-9902-58-Region 4]


Approval and Promulgation of Implementation Plans; Mississippi; 
Transportation Conformity SIP--Memorandum of Agreement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a State 
Implementation Plan (SIP) revision submitted by the Mississippi 
Department of Environment Quality (MDEQ) on May 31, 2013. This 
submission adopts a memorandum of agreement (MOA) establishing 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. This action 
streamlines the conformity process to allow direct consultation among 
agencies at the Federal, state and local levels. This final action is 
being taken pursuant to section 110 of the Clean Air Act (CAA or Act).

DATES: This direct final rule is effective January 13, 2014 without 
further notice, unless EPA receives adverse comment by December 13, 
2013. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0228 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2013-0228,'' Air Quality Modeling and 
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of

[[Page 67953]]

operation. The Regional Office's 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-R04-OAR-
2013-0228'' 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    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 the Air Quality Modeling and Transportation Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person 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 a.m.to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Quality Modeling 
and Transportation Section, Air Planning Branch, Air, Pesticides and 
Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. 
Sheckler's telephone number is 404-562-9222. She can also be reached 
via electronic mail at sheckler.kelly@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA taking?
II. Background for This Action
III. EPA's Analysis of Mississippi's Submittal
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking direct final action to approve MDEQ's May 31, 2013 
SIP submission, to adopt a MOA establishing transportation conformity 
criteria and procedures related to interagency consultation and 
enforceability of certain transportation-related control measures and 
mitigation measures for a portion of Desoto County, Mississippi and 
Mississippi's SIP pursuant to the sections 110 and 176 of the CAA. 
Pursuant to section 110 of the CAA, EPA is approving into the 
Mississippi SIP the May 31, 2013, transportation conformity MOA.

II. Background for This Action

A. What is transportation conformity?

    Transportation conformity is required under section 176(c) of the 
CAA to ensure that federally supported highway, transit projects, and 
other activities are consistent with (``conform to'') the purpose of 
the SIP. Conformity \1\ currently applies to areas that are designated 
nonattainment and to areas that have been redesignated to attainment 
after 1990 (maintenance areas) with plans developed under section 175A 
of the Act, for transportation related criteria pollutants including 
ozone, particulate matter (e.g., PM2.5 and PM10), 
carbon monoxide, and nitrogen dioxide.
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    \1\ Conformity first appeared as a requirement in the CAA in the 
1977 amendments (Pub. L. 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.
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    The 1990 Amendments to the CAA expanded the scope and content of 
the conformity concept by defining the scope of 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 national ambient air quality standards (NAAQS) and 
achieving expeditious attainment of such standards. Also, the CAA 
provides that no Federal activity will: (1) Cause or contribute to any 
new violation of any NAAQS 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 CAA 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). EPA was required to issue 
criteria and procedures for determining conformity of transportation 
plans, programs, and projects to a SIP pursuant to section 176(c) of 
the CAA. The CAA also required the procedure to include a requirement 
that each state submit a revision to its SIP to include conformity 
criteria and procedures.

B. Why are states required to submit a transportation conformity SIP?

    A transportation conformity SIP is a plan which contains criteria 
and procedures for the State Department of Transportation (DOT), 
metropolitan planning organizations (MPOs), and other state or local 
agencies to assess the conformity of transportation plans, programs and 
project pursuant to section176(c) of the CAA. EPA promulgated the first 
federal transportation conformity criteria and procedures (``Conformity 
Rule'') on November 24, 1993 (58 FR 62188) which was codified at 40 CFR 
part 51, subpart T and 40 CFR part 93. Among other things, the rule 
required states to address all provisions of the conformity rule in 
their SIPs frequently referred to as ``conformity SIPs.'' Under 40 CFR 
51.390, most sections of the conformity rule were required to be copied 
verbatim into the SIP. 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

[[Page 67954]]

section 176(c) of the CAA transportation conformity provisions by 
streamlining the requirements for conformity SIPs. Under SAFETEA-LU, 
states are required to address and tailor only three sections of the 
rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), 
and 40 CFR 93.125(c). In general, states are no longer required to 
submit conformity SIP revisions that address the other sections of the 
conformity rule. These changes took effect on August 10, 2005, when 
SAFETEA-LU was signed into law. The rule has been subsequently revised 
on August 7, 1995 (60 FR 40098), August 15, 1997 (62 FR 43780), 
November 14, 1995 (60 FR 57179), April 10, 2000 (65 FR 18911), and 
August 6, 2002 (67 FR 50808).
    States may also choose to develop a MOA which establishes the roles 
and procedures for transportation conformity in place of adopting 
regulations. 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 U.S. Department of Transportation (USDOT) Federal Highway 
Administration (FHWA), Federal Transit Administration (FTA) and EPA.

C. How does transportation conformity work?

    The Federal or state transportation conformity rule applies to 
applicable NAAQS nonattainment and maintenance areas in the state. The 
MPO, the DOT (in absence of a MPO), State and local air quality 
agencies, EPA and the 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 (MVEB) established in the SIP. The calculated 
emissions must be equal to or smaller than the federally approved MVEB 
in order for the USDOT to make a positive conformity determination with 
respect to the SIP.
    Pursuant to Federal regulations, when an area is designated 
nonattainment for a transportation related NAAQS, the state is required 
to submit a transportation conformity SIP one year after the effective 
date of the nonattainment area (NAA) designations. See 40 CFR 
51.390(c). On April 30, 2012, EPA designated the Memphis, TN-MS-AR area 
(hereafter referred to as the Memphis Area) as nonattainment for the 
2008 8-hour ozone NAAQS. See 77 FR 30088. The area is comprised of 
Crittenden County, Arkansas, and Shelby County, Tennessee in their 
entireties and a portion of Desoto County, Mississippi. These 
designations became effective on July 20, 2012; therefore, pursuant to 
40 CR 51.390(c), MDEQ was required to submit a transportation 
conformity SIP by July 20, 2013, to address the interagency 
consultation procedures and enforceable commitments related to 
conformity of transportation plans, programs, and projects in the 8-
hour ozone Memphis NAA.\2\ The Memphis Urban Area MPO \3\ is within the 
Memphis Area and is considered the multi-jurisdictional agency 
responsible for the implementation and coordination of urban 
transportation planning for all of Shelby County Tennessee, the western 
four miles of Fayette County, Tennessee and the northern twelve miles 
of DeSoto County, Mississippi.\4\
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    \2\ Tennessee and Arkansas will submit and/or update their 
respective transportation conformity SIPs for the Memphis NAA in 
separate submissions.
    \3\ The West Memphis MPO is the agency responsible for urban 
transportation planning for the Crittenden County, Arkansas portion 
of the Memphis, TN-MS-AR 2008 8-hour ozone NAA.
    \4\ The portion of the Memphis Urban MPO in DeSoto County, 
Mississippi is the same boundary EPA designated as NAA for the 
Memphis, TN-MS-AR, 2008 8-hour ozone NAA on April 30, 2012. See 77 
FR 30088. The boundary extends from the Mississippi -Tennessee state 
line twelve miles into DeSoto County including the jurisdictions of 
Horn Lake, Southaven, Olive Branch, Hernando and Walls in Desoto 
County.
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III. EPA Analysis of Mississippi's Submittal

    EPA's Transportation Conformity 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 
processes and procedures to be followed by the MPO, state DOT, and the 
USDOT in consulting with the state and local air quality agencies and 
EPA before making conformity determinations. The conformity SIP 
revision must also include processes and procedures for the state and 
local air quality agencies and EPA to coordinate the development of 
applicable SIPs with MPOs, state DOTs, and the US DOT.
    On May 31, 2013, the State of Mississippi submitted to EPA the 
DeSoto County (portion of the Memphis NAA) conformity and consultation 
interagency SIP, based on an MOA signed by the Memphis Urban Area MPO, 
the Mississippi Transportation Commission, Mississippi Department of 
Transportation, MDEQ, the USDOT FHWA--Mississippi Division, the USDOT 
FTA and EPA Region 4. Mississippi's MOA establishes procedures for 
interagency consultation for incorporation into the SIP to comply with 
section 176(c) of the CAA and 40 CFR 93 regarding conformity of 
transportation plans, programs, and projects that are developed funded 
or approved by the USDOT, Memphis Urban Area MPO, MTC and acted by and 
through MDEQ.
    The State of Mississippi developed its consultation SIP based on 
the elements contained in 40 CFR 93.105, 93.122(a)(4)(ii), and 
93.125(c). As a first step, MDEQ worked with the existing 
transportation planning organization's interagency committees that 
included representatives from the MDEQ; MDOT; the Memphis Urban Area 
MPO; FHWA--Mississippi Division; FTA; and EPA Region 4. The interagency 
committee met regularly and drafted the consultation procedures 
considering elements in 40 CFR Part 93.105, 93.122(a)(4)(ii), and 
93.125(c), and integrated the local procedures and processes into the 
MOA. Mississippi's MOA requirement for interagency consultation is 
currently only applicable to the DeSoto County portion of the 2008 8-
hour Memphis TN-AR-MS NAA. The resulting consultation process developed 
is unique to the State of Mississippi.
    A public notice announcement on March 8, 2013, indicated that the 
MOA was available for public comment until April 9, 2013. The MDEQ 
posted the MOA on their Web site and provided access to the documents 
for review in person at the MDEQ Jackson office. A public hearing to 
receive comments regarding the proposed conformity SIP was held on 
April 9, 2013, in Hernando, Mississippi. No comments were received at 
the public hearing.
    EPA has reviewed MDEQ's May 31, 2013, SIP submittal to assure 
consistency with the CAA 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 has 
preliminarily determined that Mississippi's MOA is in accordance with 
the above referenced federal requirements.

IV. Final Action

    For the reasons set forth above, EPA is taking direct final action, 
pursuant to section 110 and 176 of the Act, to

[[Page 67955]]

approve Mississippi's May 31, 2013, transportation conformity SIP and 
MOA to implement the interagency consultation procedures and 
enforceable commitments in a portion of Desoto County, Mississippi.
    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 January 13, 2014 
without further notice unless the Agency receives adverse comments by 
December 13, 2013.
    If 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. 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 January 13, 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.

V. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. 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 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 CAA; 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 13, 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, Nitrogen 
dioxide, Ozone, Particular matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: October 24, 2013.
 Beverly H. Banister,
Acting Regional Administrator, Region 4.

    40 CFR part 52 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 (Z)--(Mississippi)

0
2. Section 52.1270 paragraph (e) is amended by adding a new entry for 
``Transportation Conformity Interagency Consultation and General 
Provisions'' at the end of the Table to read as follows:


Sec.  52.1270  Identification of plan.

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    (e) * * *

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                               EPA Approved Mississippi Non-Regulatory Provisions
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                                                        State  submittal
  Name of non-regulatory SIP    Applicable geographic    date/ effective     EPA approval        Explanation
           provision            or nonattainment area         date               date
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                                                  * * * * * * *
Transportation Conformity       DeSoto County portion  May 31, 2013......  11-13-13 [Insert
 Interagency Consultation And    of Memphis, TN-AR-MS                       citation of
 General Provisions.             2008 8-hour Ozone                          publication].
                                 Nonattainment Area
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[FR Doc. 2013-27019 Filed 11-12-13; 8:45 am]
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