	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-1009; FRL-         ] 

	Approval and Promulgation of Air Quality Implementation Plans;

	 Delaware; Transportation Conformity Regulations 

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  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 [insert date 30 days
from date of publication].

ADDRESSES:  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 www.regulations.gov website.   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 www.regulations.gov 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.

 

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by
e-mail

at kotsch.martin@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.   Background	

), EPA published a notice of proposed rulemaking (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 http://epa.gov/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 (Public Law 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 [insert date 60 days from date of publication of
this document in the Federal Register].  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).

List of Subjects in 40 CFR part 52 

Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Volatile organic compounds

April 9, 2008                                                           
     _______\\s\\______________    

Dated:                            				Donald S. Welsh,                  
              								Regional Administrator,

                                  					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 ( 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:


( 52.420  		Identification of plan.

*		*		*		*		*

(c) *  *  *

EPA-APPROVED REGULATIONS IN THE DELAWARE SIP

State citation	

Title/subject	

State effective date	

EPA approval date	

Additional explanation

* * * * * * *

Regulation 1132	Transportation Conformity 

Section 1	Purpose	11/11/2007	[insert date 30 days from date of
publication]	Added Section

Section 2	Definitions	11/11/2007	[insert date 30 days from date of
publication]	Added Section

Section 3	Consultation	11/11/2007	[insert date 30 days from date of
publication]	Added Section

Section 4	Written Commitments

For Control and

Mitigation Measures	11/11/2007	[insert date 30 days from date of
publication]	Added Section

* * * * * * *



*		*		*		*		*

  

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