
[Federal Register: June 18, 2010 (Volume 75, Number 117)]
[Rules and Regulations]               
[Page 34644-34647]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn10-12]                         


[[Page 34644]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0871; FRL-9164-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Maryland State Implementation Plan (SIP). The revisions establish 
transportation conformity regulations for the State of Maryland. EPA is 
approving these revisions in accordance with the requirements of the 
Clean Air Act.

DATES: This rule is effective on August 17, 2010 without further 
notice, unless EPA receives adverse written comment by July 19, 2010. 
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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0871 by one of the following methods:
    A. http://www.regulations.gov, Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2008-0871, Cristina Fernandez, Associate 
Director, Office of Air Planning Programs, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2008-0871. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an anonymous access 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. 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. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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 Maryland Department of the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by 
e-mail at kotsch.martin@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. What is transportation conformity?

    Transportation conformity is required under section 176(c) of the 
Clean Air Act to ensure that Federally supported highway, transit 
projects, and other activities are consistent with (conform to) the 
purpose of the SIP. Conformity currently applies to areas that are 
designated nonattainment, and those redesignated to attainment after 
1990 (maintenance areas), with plans developed under section 175A of 
the Clean Air Act for the following transportation related criteria 
pollutants: Ozone, particulate matter (PM2.5 and 
PM10), carbon monoxide (CO), and nitrogen dioxide 
(NO2). Conformity for purposes of the SIP means that 
transportation activities will not cause new air quality violations, 
worsen existing violations, or delay timely attainment of the relevant 
national ambient air quality standards (NAAQS). The transportation 
conformity regulation is found in 40 CFR part 93 (``Federal conformity 
rule'') and provisions related to conformity SIPs are found in 40 CFR 
51.390.

II. What is the background for this action?

    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised certain provisions of section 176(c) of 
the Clean Air Act, related to transportation conformity. Prior to 
SAFETEA-LU, States were required to address all of the Federal 
conformity rule's provisions in their conformity SIPs. After SAFETEA-
LU, State's SIPs were required to contain all or portions of only the 
following three sections of the Federal conformity rule, modified as 
appropriate to each State's circumstances: 40 CFR 93.105 (consultation 
procedures); 40 CFR 93.122(a)(4)(ii) (written commitments to implement 
certain kinds of control measures); and 40 CFR 93.125(c) (written 
commitments to implement certain kinds of mitigation measures). States 
are no longer required to submit conformity SIP revisions that address 
the other sections of the Federal conformity rule.

III. What did the State submit and how did we evaluate it?

    On August 4, 1998, the Maryland Department of the Environment 
submitted a revision to its State Implementation Plan (SIP), Revision 
98-14, to EPA for parallel processing for transportation 
conformity amendments adopted on May 4, 1995 and proposed for adoption 
on July 31, 1998. The SIP revision included regulations .01, .02, and 
.03 under COMAR 26.11.26 (Conformity). On January 29, 2003, the 
Maryland Department of the Environment submitted a revision to its SIP, 
Revision 03-02, for transportation conformity amendments that 
were adopted on July 12, 1999. The 2003 SIP revision included 
amendments to Regulations 26.11.26.02 and .03, new Regulations

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.04 through .08, and recodification of Regulation .04 to Regulation .09 
(excluding Regulation .06). On February 5, 2007, the Maryland 
Department of the Environment submitted a revision to its SIP, Revision 
06-07, for transportation conformity purposes. The SIP 
revision included amendments to Regulation 26.11.26.01 through .05 and 
.07 through .09. 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). On July 8, 2008, the 
Maryland Department of the Environment supplemented its SIP with 
Revision 06-07. The SIP submission corrected minor citation 
errors, removed COMAR 26.11.26.05E(4), and corrected a citation in 
COMAR 26.11.26.01 which was mislabeled as section 176(c) of the Clean 
Air Act and should have read section 176(c)(4)(E) of the Clean Air Act.
    We reviewed the submittals to assure consistency with the February 
14, 2006, ``Interim Guidance for Implementing the Transportation 
Conformity provisions in 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 
Maryland's SIP Revision indicates that it is consistent with EPA's 
guidance in that it includes the three aforementioned regulatory 
elements specified by SAFETEA-LU. Consistent with the EPA Conformity 
Rule at 40 CFR 93.105 (consultation procedures), COMAR 26.11.26.02, 
COMAR 26.11.26.04, and COMAR 26.11.26.05 identify the appropriate 
agencies, procedures, and allocation of responsibilities. In addition, 
COMAR 26.11.26.07 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), the SIP 
specifies that written commitments to implement control measures and 
mitigation measures for meeting these requirements will be provided as 
needed.

IV. Final Action

    EPA is approving the Maryland SIP revisions for Transportation 
Conformity, which were submitted on August 4, 1998, January 29, 2003, 
February 5, 2007, and supplemented on July 8, 2008. 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 17, 2010 without further notice unless EPA 
receives adverse comment by July 19, 2010. 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. 
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.

V. 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 August 17, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this final 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

[[Page 34646]]

of such rule or action. This action to approve the Maryland 
transportation conformity regulation 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, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: June 7, 2010.
W.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 V-- Maryland

0
2. In Sec.  52.1070, the table in paragraph (c) is amended by removing 
the existing entries for COMAR 26.11.26.01 and 26.11.26.03, and adding 
new entries for COMAR 26.11.26.01, 26.11.26.02, 26.11.26.03, 
26.11.26.04, 26.11.26.05, 26.11.26.07, 26.11.26.08, and 26.11.26.09. 
The amendments read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Maryland SIP
----------------------------------------------------------------------------------------------------------------
                                                                                                 Additional
  Code of Maryland administrative                            State                              explanation/
   regulations (COMAR) citation         Title/subject      effective    EPA approval date    citation at 40 CFR
                                                             date                                  52.1100
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                                                  * * * * * * *
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                                               26.11.26 Conformity
----------------------------------------------------------------------------------------------------------------
26.11.26.01.......................  Purpose.............     1/29/07  June 18, 2010.......  New Regulation.
                                                                      [Insert page number
                                                                       where the document
                                                                       begins].
26.11.26.02.......................  Definitions.........      8/9/99  June 18, 2010         Definitions added
                                                             1/29/07   [Insert page number   for transportation
                                                                       where the document    conformity;
                                                                       begins].              definitions for
                                                                                             general conformity
                                                                                             were approved at
                                                                                             (c)(136).
26.11.26.03.......................  Transportation            6/5/95  June 18, 2010         New Regulation;
                                     Conformity.             1/29/07   [Insert page number   current COMAR
                                                                       where the document    citation is current
                                                                       begins].              COMAR citation is
                                                                                             26.11.26.04.
26.11.26.04.......................  Transportation            8/9/99  June 18, 2010         New Regulation;
                                     Conformity--Consult     1/29/07   [Insert page number   current COMAR
                                     ation in General.                 where the document    citation is
                                                                       begins].              26.11.26.05.
26.11.26.05.......................  Transportation            8/9/99  June 18, 2010         New Regulation;
                                     Conformity--Interag     1/29/07   [Insert page number   current COMAR
                                     ency Consultation       6/30/08   where the document    citation is
                                     Requirements.                     begins].              26.11.26.06.
26.11.26.07.......................  Transportation            8/9/99  June 18, 2010.......  New Regulation;
                                     Conformity--Public      1/29/07  [Insert page number    current COMAR
                                     Consultation                      where the document    citation is
                                     Procedures.                       begins].              26.11.26.08.
26.11.26.08.......................  Transportation            8/9/99  June 18, 2010.......  New Regulation;
                                     Conformity--Interag     1/29/07  [Insert page number    current COMAR
                                     ency Consultation.                where the document    citation is
                                                                       begins].              26.11.26.09.
26.11.26.09.......................  General Conformity..     1/29/07  June 18, 2010.......  Formerly SIP
                                                                      [Insert page number    regulation
                                                                       where the document    26.11.26.03.
                                                                       begins].
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[FR Doc. 2010-14766 Filed 6-17-10; 8:45 am]
BILLING CODE 6560-50-P

