Approval and Promulgation of Air Quality Implementation Plans; State of DelawareTransportation Conformity Regulation

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE036-1018a; FRL-6303-4]

Approval and Promulgation of Air Quality Implementation Plans;

State of Delaware--Transportation Conformity Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the

Delaware State Implementation Plan (SIP). The revision consists of the

addition of Delaware's transportation conformity regulation, for the

purpose of assuring conformity of Delaware transportation plans,

programs and projects to related requirements in the SIP. EPA is

approving the transportation conformity regulation as a SIP revision in

accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on April 26, 1999 without further notice,

unless EPA receives adverse written comment by March 25, 1999. 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: Written comments should be mailed to Robert Kramer, Chief;

Energy Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S.

Environmental Protection Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103. Copies of the documents relevant to

this action are available for public inspection during normal business

hours at the Air Protection Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103;

the Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, SW., Washington, DC 20460; and

Delaware Department of Natural Resources & Environmental Control, 89

Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Larry Budney, (215) 814-2184, or by e-

mail at [email protected]. While clarifying questions and

requests for additional information may be transmitted via e-mail,

comments on this rulemaking must be submitted in writing in accordance

with the procedures provided earlier in this document.

SUPPLEMENTARY INFORMATION:

I. Background

On April 23, 1998, the Delaware Department of Natural Resources and

Environmental Control (DNREC) submitted a formal revision to its State

Implementation Plan (SIP). The SIP revision consists of Delaware's

transportation conformity regulation, Regulation No. 32--Transportation

Conformity, to meet the requirements of 40 CFR Part 51, Subpart T,

``Conformity to State or Federal Implementation Plans, Programs and

Projects Developed, Funded or Approved Under Title 23 U.S.C. or the

Federal Transit Laws''. Part 51, subpart T requires states to submit to

EPA a SIP revision that contains criteria and procedures for state

Departments of Transportation (DOTs), Metropolitan Planning

Organizations (MPOs) and related state and local agencies to assess the

conformity of transportation plans, programs and projects, consistent

with part 51, subpart T and part 93, subpart A. This action to approve

the Delaware's transportation conformity regulation as a SIP revision

is being taken under Section 110 of the Clean Air Act (CAA).

II. Summary of SIP Revision

Delaware Regulation 32--Transportation Conformity establishes

policy, criteria and procedures to follow when evaluating the

conformity of transportation plans, programs and projects to all

applicable SIPs developed pursuant to section 110 and part D of the

CAA. The regulation includes the provisions of 40 CFR 93.100-128 and

meets the requirements of 40 CFR 51.390. Regulation 32 was developed

through consultation between Delaware's DNREC, DOT, MPOs, the Federal

Highway Administration and the U.S. Environmental Protection Agency.

The geographic coverage of Regulation 32 includes Delaware's

nonattainment and maintenance areas. Under the regulation, Delaware's

transportation plans, programs and projects must conform to the purpose

of the SIP, and must not:

a. cause or contribute to any new violation of a National Ambient

Air Quality Standard (NAAQS) in any area;

b. interfere with SIP provisions for maintenance of any such

standard;

c. increase the frequency or severity of any existing violation of

such a standard in any area; or

d. delay timely attainment of any such standard in any area.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial

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amendment and anticipates no adverse comment. However, in the

``Proposed Rules'' section of today's Federal Register, EPA is

publishing a separate document that will serve as the proposal to

approve the SIP revision if adverse comments are filed.

This rule will be effective on April 26, 1999 without further

notice unless EPA receives adverse comment by March 25, 1999. If EPA

receives adverse comment, EPA will publish a timely withdrawal in the

Federal Register informing the public that the rule will not take

effect, and will address all public comments in a subsequent final rule

based on the proposed rule. EPA will not institute a second comment

period on this action. Any parties interested in commenting must do so

at this time.

III. Final Action

EPA is approving Delaware Regulation 32--Transportation Conformity

as a SIP revision as requested by DNREC on April 23, 1998.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. requires EPA to

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

state, local, and tribal governments, the nature of their concerns,

copies of written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, E.O. 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. This final rule is not subject

to E.O. 13045 because it is not an economically significant regulatory

action as defined by E.O. 12866, and it does not address an

environmental health or safety risk that would have a disproportionate

effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

E. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

F. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small

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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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

G. Petitions for Judicial Review

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 26, 1999. 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 to approve the Delaware Regulation 32--

Transportation Conformity 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, Hydrocarbons,

Nitrogen oxides, Ozone.

Dated: February 5, 1999.

W. Michael McCabe,

Regional Administrator, EPA Region III.

40 CFR part 52 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 I--Delaware

2. In Section 52.420, an entry for the Delaware Transportation

Conformity Regulation (Regulation No. 32) in the ``EPA-Approved

Regulations in the Delaware SIP'' table in paragraph (c) is added to

read as follows:

Sec. 52.420 Identification of plan.

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(c) EPA approved regulations.

EPA--Approved Regulations in the Delaware SIP

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State effective

State citation Title/subject date EPA approval date Comments

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Regulation No. 32............... Transportation April 11, 1998.... Type: February 23,

Conformity. 1999.

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[FR Doc. 99-3990 Filed 2-22-99; 8:45 am]

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