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Approval and Promulgation of Air Quality Implementation Plans; Delaware; Transportation Conformity Regulations

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Final rule.


EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware. This revision establishes the State's transportation conformity requirements. The intended effect of this action is to approve the State regulations which will govern transportation conformity determinations in the State of Delaware.


Effective Date: This final rule is effective on May 22, 2008.


EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-1009. All documents in the docket are listed in the Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (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 through or in hard copy 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. Copies of the State submittal are available at the Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

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Martin Kotsch, (215) 814-3335, or by e-mail at

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I. Background

On November 7, 2007 (72 FR 62807), EPA published a notice of proposed Start Printed Page 21539rulemaking (NPR) for the State of Delaware. The NPR proposed approval of the Delaware SIP revision for Transportation Conformity. This action is being taken under the Clean Air Act. These SIP revisions were proposed under a procedure called parallel processing, whereby EPA proposes a rulemaking action concurrently with a state's procedures for amending its SIP. The state's proposed SIP revisions were submitted to EPA on July 9, 2007 by the Delaware Department of Natural Resources and Environmental Control (DNREC). No comments were received during the public comment period on EPA's November 7, 2007 proposal. DNREC formally submitted the final SIP revision on November 1, 2007. That final submittal had no substantial changes from the proposed version submitted on July 9, 2007. A detailed description of Delaware's submittal and EPA's rationale for its proposed approval were presented in the November 7, 2007 notice of proposed rulemaking and will not be restated in its entirety here.

II. Summary of SIP Revision

Delaware's SIP revision contains the State Regulation 1132, Delaware Transportation Conformity Regulation. This SIP revision addresses the three provisions of the EPA Conformity Rule required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (control measures) and, 40 CFR 93.125(c) (mitigation measures).

We reviewed the submittal to assure consistency with the February 14, 2006 “Interim Guidance for Implementing the Transportation Conformity provisions in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).” The guidance document can be found at​otaq/​stateresources/​transconf/​policy.htm. The guidance document states that each state is only required to address and tailor the aforementioned three sections of the Federal Conformity Rule to be included in their state conformity SIPs.

EPA's review of Delaware's proposed SIP indicates that it is consistent with EPA's guidance in that it includes the three elements specified by SAFETEA-LU. Consistent with the EPA Conformity Rule at 40 CFR 93.105 (consultation procedures), Regulation 1132.3 identifies the appropriate agencies, procedures, and allocation of responsibilities as required under 40 CFR 93.105 for consultation procedures. In addition, Regulation 1132.3 provides for appropriate public consultation/public involvement consistent with 40 CFR 93.105. With respect to the requirements of 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), Regulation 1132.4 specifies that written commitments for control measures and mitigation measures for meeting these requirements will be provided as needed.

Other specific requirements of the Delaware SIP revision for Transportation Conformity and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

III. Final Action

EPA is approving the Delaware SIP revision for Transportation Conformity as a revision to the Delaware State SIP.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, 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 Clean Air Act. 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 Clean Air Act; 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.

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 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).

C. Petitions for Judicial Review

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 June 23, 2008. 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 Transportation Conformity SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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List of Subjects in 40 CFR Part 52

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Dated: April 9, 2008.

Donald S. Welsh,

Regional Administrator, Region III.

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is amended as follows:

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

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

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Subpart I—Delaware

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2. In § 52.420, the table in paragraph (c) is amended by adding an entry for Regulation 1132 after the existing Regulation 31 to read as follows:

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Identification of plan.
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(c) * * *

EPA-Approved Regulations in the Delaware SIP

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation
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Regulation 1132—Transportation Conformity
Section 1Purpose11/11/20075/22/2008Added Section.
Section 2Definitions11/11/20075/22/2008Added Section.
Section 3Consultation11/11/20075/22/2008Added Section.
Section 4Written Commitments for Control and Mitigation Measures11/11/20075/22/2008Added Section.
*         *         *         *         *         *         *
* * * * *
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[FR Doc. E8-8395 Filed 4-21-08; 8:45 am]