[Federal Register Volume 68, Number 108 (Thursday, June 5, 2003)]
[Rules and Regulations]
[Pages 33638-33640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14033]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC042-2031a; FRL-7507-4]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Determining Conformity of Federal Actions to 
State or Federal Implementation Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on a State Implementation 
Plan (SIP) revision submitted by the District of Columbia. The revision 
includes the District's regulation for conformity, which sets forth 
policy, criteria and procedures for demonstrating and assuring 
conformity of transportation and non-transportation related Federal 
actions to state or Federal implementation plans. EPA is approving 
these revisions in accordance with the requirements of the Clean Air 
Act.

DATES: This rule is effective on August 4, 2003 without further notice, 
unless EPA receives adverse written comment by July 7, 2003. 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 addressed to Makeba Morris, 
Chief, Air Quality Planning Branch, Mailcode 3AP21, 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; and the District of 
Columbia Department of Public Health, Air Quality Division, 51 N 
Street, N.E., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Kathleen Anderson, (215) 814-2173, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 16, 1998, the District of Columbia Department of Health 
(DCDH) submitted a revision consisting of the District's regulation for 
determining conformity of Federal actions to state or Federal 
implementation plans (DCMR Chapter 4, section 403.1). The purpose of 
this SIP revision is to meet the requirements of 40 CFR part 51, 
subpart W, which requires states to submit a plan revision containing 
criteria and procedures for assessing the conformity of Federal actions 
to the applicable implementation plan. Subpart W is also known as the 
General Conformity Rule. It pertains to non-transportation related 
Federal actions.

II. Summary of SIP Revision

    The District's regulation at 20 DCMR Chapter 4, section 403.1 
incorporates by reference the Federal regulations at 40 CFR part 93, in 
effect as of September 30, 1997, which establishes requirements for 
determining conformity of both general and transportation related 
Federal actions to state or Federal implementation plans. Under 40 CFR 
part 51, subpart W, states are only required to have SIP-approved 
general conformity regulations. By incorporating by reference all of 40 
CFR part 93, the District has adopted and submitted as a SIP revision a 
rule that includes regulations for determining conformity of general as 
well as transportation-related Federal actions.
    40 CFR part 51, subpart W and 40 CFR part 93 were promulgated to 
implement section 176(a) of the Clean Air Act (CAA), as amended (42 
U.S.C. 7401 et seq.), which requires that all Federal actions conform 
to applicable air quality implementation plans. The Federal conformity 
rule in 40 CFR part 93 establishes standards and procedures to follow 
when evaluating the conformity of Federal projects to all applicable 
implementation plans developed pursuant to section 110 and part D of 
the CAA. This rule only applies to areas designated as nonattainment or 
maintenance under the CAA. By adopting a rule that incorporates by 
reference 40 CFR part 93, and submitting this rule to EPA as a SIP 
revision, the District has satisfied the requirement to submit a plan 
revision containing criteria and procedures for assessing the 
conformity of Federal actions to the applicable implementation plan.

III. Final Action

    EPA is approving as a SIP revision the District's regulation at 
Title 20, DCMR Chapter 4, Section 403.1, Determining Conformity of 
Federal Actions to State or Federal Implementation Plans, submitted as 
a SIP revision on December 16, 1998.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial 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 August 4, 2003 without further 
notice unless EPA receives adverse comment by July 7, 2003. 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. EPA 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.

IV. Statutory and Executive Order Reviews

A. General 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

[[Page 33639]]

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 (Public Law 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.).

B. Submission to Congress and the Comptroller General

    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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action to approve the District's conformity 
regulations must be filed in the United States Court of Appeals for the 
appropriate circuit by August 4, 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 approving the District of Columbia's general conformity 
rule, 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 23, 2003.
William C. Early,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (c) is amended by revising 
the entry for Chapter 4 and adding an entry to Chapter 4 after the 
second existing entry to read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                  EPA-Approved District of Columbia Regulations
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                                                                  State
         State citation                  Title/subject          effective      EPA approval date       Comments
                                                                   date
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                                                  * * * * * * *
Chapter 4......................     Ambient Monitoring, Emergency Procedures, Chemical Accident Prevention and
                                                                    Conformity
 
                                                  * * * * * * *
Section 403....................  Determining Conformity of         11/6/98  6/5/03
                                  Federal Actions to State or               68 FR 33639............
                                  Federal Implementation
                                  Plans.
 
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[FR Doc. 03-14033 Filed 6-4-03; 8:45 am]
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