Approval and Promulgation of Air Quality Implementation Plans; Delaware; MOBILE6-Based Motor Vehicle Emission Budgets for the Delaware Portion of the Philadelphia-Wilmington-Trenton 1-Hour Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the Delaware State Implementation Plan (SIP). Specifically, EPA is approving amendments to the 2005 highway (on road) motor vehicle emission inventory for the Delaware portion of the Philadelphia-Wilmington-Trenton area's (the Philadelphia area) 1-hour ozone attainment plan as a revision to the Delaware SIP. This revision also serves to amend the 2005 motor vehicle emission budgets (MVEBs) used for determining transportation conformity under the Clean Air Act. The revised MVEBs were developed using MOBILE6, the most recent version of EPA's mobile source emission factor model. Revision of the MVEBs was a requirement of EPA's prior approval of Delaware's 1-hour ozone attainment demonstration plan for the Philadelphia severe ozone nonattainment area. The intended effect of this direct final approval action is to approve a SIP revision that will assist Delaware in attaining and demonstrating conformity with the 1-hour ozone standard. This action is being taken by EPA in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on February 3, 2004 without further notice, unless EPA receives adverse written comment by January 5, 2004. 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:

Comments may be submitted either by mail or electronically. 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. Electronic comments should be sent either to kramer.robert@epa.gov or to http://www.regulations.gov,, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in Part III of the SUPPLEMENTARY INFORMATION section. 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 at the Delaware Department of Natural Resources and Environmental Control, 156 South State Street, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT:

Larry Budney, (215) 814-2184, or by e-mail at budney.larry@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Delaware's SIP-Approved Attainment Demonstration and Mobile Budget

On October 29, 2001 ( 66 FR 54598), EPA approved Delaware's 1-hour ozone attainment demonstration plan for the Philadelphia area. As part of that final rule, EPA required that Delaware revise the plan to recalculate the 2005 attainment year motor vehicle emission budgets (MVEBs) for the Delaware portion of the Philadelphia area (Kent and New Castle Counties). The 2005 MVEBs were to be updated using MOBILE6, the most recent version of MOBILE, EPA's mobile emission factor model. On September 2, 2003, Delaware formally submitted a revision to its attainment demonstration plan for the Philadelphia area, consisting of updated MOBILE6-based MVEBs for the Delaware portion of the Philadelphia area.

B. Background on the MOBILE Emission Factor Model and Related EPA Policy

MOBILE is an EPA emission factor model for estimating pollution from on-road motor vehicles. The MOBILE model calculates emissions of volatile organic compounds (VOCs), nitrogen oxides (NO_X) and carbon monoxide (CO) from passenger cars, motorcycles, buses, and light-duty and heavy-duty trucks. The model accounts for the emission impacts of factors such as changes in vehicle emission standards, changes in vehicle populations and activity, and variation in local conditions such as temperature, humidity, fuel quality, and air quality programs. The MOBILE model, first developed in 1978, has been updated several times to reflect changes to motor vehicles and fuel composition, to incorporate better understanding of vehicle emissions, and to reflect new emissions programs. The MOBILE model is used to calculate current and future inventories of motor vehicle emissions at the national and local level. These inventories are used to make decisions about air pollution policy and programs at the local, state and national level. Mobile source emission inventories based on MOBILE are used to meet the Federal Clean Air Act's requirements for SIPs and transportation conformity. EPA announced the release of the MOBILE6 version of the MOBILE model on January 29, 2002 (67 FR 4254) as a replacement for a MOBILE5 version of the model. In November of 1999, EPA issued two memoranda to articulate its policy regarding states that incorporated MOBILE5-based interim Tier 2 standard benefits into their attainment demonstration plans and those plans' associated MVEBs. EPA has implemented this policy in all ozone nonattainment areas where a state assumed Federal Tier 2 benefits in its attainment demonstration plans according to EPA's April 2000 MOBILE5 guidance, “MOBILE5 Information Sheet #8: Tier 2 Benefits Using MOBILE5.” States whose approved attainment demonstrations or maintenance plans include interim MOBILE5-based estimates of the Tier 2 standards were required to update and resubmit the MVEBs of those plans after the final release of MOBILE6. EPA's October 29, 2001 (66 FR 54598) approval of Delaware's 1-hour ozone attainment demonstration plan for the Philadelphia area was based upon interim mobile emission budgets, with projected reductions from Tier 2 motor vehicle standards estimated using the MOBILE5 model. EPA's October 29, 2001 approval of Delaware's 1-hour ozone attainment demonstration for the Philadelphia area required a MOBILE6-based motor vehicle emission budget SIP revision.

II. Summary of Delaware's SIP Revision and EPA's Review

A. MOBILE6-Based Highway Mobile Source Emission Inventories

On September 2, 2003, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted an SIP revision to its approved attainment plan for the Philadelphia area. The revision consists of updated inventories of emissions calculated using the MOBILE6 emission factor model of the ozone precursors VOC and NO_X from highway mobile sources operating in the Delaware portion (Kent and New Castle Counties) of the Philadelphia area. These inventories were generated for summertime periods in 1990, and for 2005, the year the Philadelphia area is to attain the 1-hour ozone standard. The MOBILE6-based highway emission inventory projections for VOCs and NO_X for 2005 also serve as the attainment plan's MVEBs for transportation conformity planning.

The SIP revision is intended to demonstrate that the updated MOBILE6-based projections of motor vehicle emissions continue to support the demonstration of attainment of the 1-hour ozone NAAQS for the Philadelphia area by 2005. Table 1 is presented to compare Delaware's revised MOBILE6-based motor vehicle emissions inventories with the previously approved MOBILE5-based inventories, by pollutant, expressed in units of tons per summer day (tpd). The MOBILE6-based inventories were developed using the latest available planning assumptions, including 2002 data from Delaware's Department of Transportation for vehicle registration, vehicle miles traveled (VMT) and speeds.

EPA's articulated its policy regarding the use of MOBILE6 modeling for purposes of SIP development in guidance documents entitled “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity” and “Clarification of Policy Guidance for MOBILE6 in Mid-course Review Areas.”

Delaware's September 2, 2003 SIP revision submittal includes an explanation of the differences between the MOBILE5 and MOBILE6-based inventories. The submittal also provides a comparison of the relative reduction, by percentage, between the 1990 and 2005 inventories generated using the two different versions of the model to ensure that the approved Philadelphia area 1-hour ozone attainment demonstration will continue to demonstrate attainment by 2005. The methodology for this relative reduction comparison consists of comparing the revised MOBILE6 baseline and attainment case inventories, by pollutant, with the previously approved MOBILE5 inventory totals for the Delaware portion of Philadelphia area to determine if attainment can still be predicted by the attainment date. Delaware then compared these relative reduction percentages for the MOBILE5 versus MOBILE6 inventories for 1990 and 2005. As indicated in Table 1, the State's relative reduction comparison for the two-county Delaware portion of the Philadelphia area shows that the reductions in NO_X and VOC emissions, on a percentage basis, are greater in the revised MOBILE 6-based inventories than in the previously approved MOBILE5-based inventories. It should be noted that because the latest available planning assumptions (e.g., 2002 data for vehicle registration, vehicle miles traveled (VMT) and speeds) were also used in the revised MOBILE6-based modeling, this relative reduction comparison is not a strict comparison of the differences resulting solely from the use of the MOBILE6 versus MOBILE5 version of the MOBILE model.

EPA's relevant policy guidance also requires Delaware to consider whether growth and control strategy assumptions for other sources (i.e, point, area, and non-road mobile sources) were still accurate at the time of the revised MOBILE6-based MVEBs were developed for submittal as a SIP revision to the Philadelphia area attainment plan. Delaware's September 2, 2003 SIP submittal indicates that the overall emissions of VOC and/or NO_X in the 1996 and 1999 periodic emissions inventories are below the rate-of-progress emission targets for those two milestone years, and concludes that the assumptions for growth and control strategies continue to be valid for the Delaware portion of the Philadelphia area. EPA finds that Delaware's September 2, 2003 SIP revision satisfies the conditions outlined in EPA's MOBILE6 policy guidance, and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the 1-hour ozone standard by the attainment date of 2005 for the Delaware portion of the Philadelphia area.

B. MOBILE6-Based Motor Vehicle Emission Budgets (MVEBs)

As previously stated, the on-road components of VOC and NO_X emissions of the 2005 attainment plan emission inventories are the 2005 MVEBs for the Philadelphia area. Those MVEBs for the Delaware portion of the Philadelphia area are summarized in Table 2. As indicated in Delaware's September 2, 2003 submittal, these budgets were developed using the latest planning assumptions, including 2002 vehicle registration, speed and vehicle miles traveled (VMT) data. Because Delaware's September 2, 2003 submittal satisfies the conditions outlined in EPA's MOBILE6 policy guidance and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support achievement of the projected attainment of the 1-hour ozone standard, EPA is approving these MVEBs.

III. Final Action

EPA is approving Delaware's September 2, 2003 SIP revision submittal which updates the 1990 and 2005 highway mobile VOC and NO_X emissions inventories and the 2005 MVEBs of the Philadelphia area attainment plan to reflect the use of MOBILE6. This SIP revision fulfills the requirement of EPA's October 29, 2001 ( 66 FR 54598) approval of Delaware's 1-hour attainment demonstration plan for the Philadelphia area that the 2005 highway mobile emissions inventory and, therefore, the 2005 MVEBs of the plan be updated after the release of MOBILE6. 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 also publishing a separate document that will serve as the proposal to approve this SIP revision if adverse comments are filed. This rule will be effective on February 3, 2004 without further notice unless EPA receives adverse comment by January 5, 2004. If EPA receives adverse comment, EPA will publish a timely withdrawal of this action in the Federal Register informing the public that the rule will not take effect. EPA will address 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. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number (DE072-1042) in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to: kramer.robert@epa.gov, attention DE072-1042. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov,, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Submittal of CBI Comments

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

Considerations When Preparing Comments to EPA

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

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 (Pub. L. 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 must be filed in the United States Court of Appeals for the appropriate circuit by February 3, 2004. 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 Delaware's updates to the 1990 and 2005 highway mobile VOC and NO_X emissions inventories and the 2005 MVEBs of its 1-hour ozone attainment demonstration plan for the Philadelphia area to reflect the use of MOBILE6 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
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

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. Section 52.426 is amended by:

a. Removing and reserving paragraph (c)(2);

b. Revising paragraph (d);

c. Adding paragraph (e).

The revision and addition read as follows: