	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	Approval and Promulgation of Air Quality Implementation Plans;

	Maryland; Transportation Conformity Regulations 

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

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 [Insert date 60 days after publication
in the Federal Register]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  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.      HYPERLINK "http://www.regulations.gov"  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 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 website 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 .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 §176(c) of the
Clean Air Act and should have read §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 
HYPERLINK " http://epa.gov/otaq/stateresources/transconf/policy.htm"  
http://epa.gov/otaq/stateresources/transconf/policy.htm .  The guidance
document states that each state is only required to address and tailor
the afore-mentioned 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 [Insert date 60 days from date of publication in the
Federal Register] without further notice unless EPA receives adverse
comment by [Insert date 30 days from date of publication in the Federal
Register].  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 (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 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 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,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.

                                               

                                                                        
                         /s/

_June 7, 2010_______                   		         
__________________________

Dated:                                				W. 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 V Maryland

2. In § 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: 

§ 52.1070  		Identification of plan.

*		*		*		*		*

(c)* * *

EPA-APPROVED REGULATIONS IN THE MARYLAND SIP

Code of Maryland administrative regulations (COMAR) citation	

Title/subject	

State effective date	

EPA approval date	

Additional explanation/

citation at 40 CFR § 52.1100  



          *            *               *              *              *  
              *             * 



26.11.26	

Conformity 

26.11.26.01	Purpose	1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation

26.11.26.02	Definitions	8/9/99

1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins	Definitions added for
transportation conformity;  definitions for  general conformity were
approved at 

(c)(136).

26.11.26.03	Transportation Conformity	6/5/95

1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation; current
COMAR citation is current COMAR citation is 26.11.26.04

26.11.26.04	Transportation Conformity – Consultation in General	8/9/99

1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation; current
COMAR citation is 26.11.26.05

26.11.26.05	Transportation Conformity – Interagency Consultation
Requirements	8/9/99

1/29/07

6/30/08	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation; current
COMAR citation is 26.11.26.06

26.11.26.07	Transportation Conformity – Public Consultation Procedures
8/9/99

1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation; current
COMAR citation is 26.11.26.08

26.11.26.08	Transportation Conformity – Interagency Consultation
8/9/99

1/29/07	[Insert Federal Register publication date]

[Insert page number where the document begins]	New Regulation; current
COMAR citation is 26.11.26.09

26.11.26.09	General Conformity	1/29/07	[Insert Federal Register
publication date]

[Insert page number where the document begins]	Formerly SIP regulation
26.11.26.03

*    *    *    *    *    *   *

                                                

                                                  

*		*		*		*		*

  

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