[Federal Register Volume 64, Number 35 (Tuesday, February 23, 1999)]
[Rules and Regulations]
[Pages 8723-8725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3990]


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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

[[Page 8724]]

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

[[Page 8725]]

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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