03-14033. 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.

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, [phone], or by e-mail at [e-mail].

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 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.

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 J—District of Columbia

2. In § 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:

§ 52.470

Identification of plan.

* * * * *

(c) EPA approved regulations.

EPA-Approved District of Columbia Regulations

State citation	Title/subject	State effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Chapter 4	Ambient Monitoring, Emergency Procedures, Chemical Accident Prevention and Conformity
*         *         *         *         *         *         *
Section 403	Determining Conformity of Federal Actions to State or Federal Implementation Plans	11/6/98	6/5/03 68 FR 33639
*         *         *         *         *         *         *