 	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2008-0898; FRL-       ] 

	Approval and Promulgation of Air Quality Implementation Plans;

	Pennsylvania: Transportation Conformity Requirement 

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

SUMMARY:  EPA is taking direct final action to approve revisions to the
Pennsylvania State Implementation Plan (SIP) submitted by the
Commonwealth of Pennsylvania.  The revisions establish State
transportation conformity requirements.  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-2008-0898 by one of the following methods:

     A.    www.regulations.gov. Follow the on-line instructions for
submitting comments.

     B.    E-mail:  febbo.carol@epa.gov

     C.    Mail:   EPA-R03-OAR-2008-0898, Carol Febbo, Chief, Energy,
Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.

     D.   Hand Delivery: At the 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-2008-0898.  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),
disclosure of which 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 Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control Rachel Carson State Office
Building, 400 Market Street, 12th Floor, Harrisburg, PA 17105-8468. 

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
approved SIP.  Transportation Conformity currently applies to areas that
are designated nonattainment, and those areas redesignated to attainment
after 1990 (maintenance areas), with maintenance 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 with the
purpose 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 Federal transportation conformity regulations (Federal
Rule) are found in 40 CFR part 93 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 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 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).  Pursuant to
SAFETEA-LU, States are no longer required to submit conformity SIP
revisions that address the other sections of the Federal Rule. 

III. What Did the State Submit and How Did We Evaluate It?

On May 29, 2008, the Pennsylvania Department of Environmental Protection
submitted a revision to its State Implementation Plan (SIP) for
Transportation Conformity purposes.  The SIP revision consists of
eighteen executed Memorandams of Agreements (MOAs) which will constitute
the Pennsylvania SIP for transportation conformity purposes.  The
eighteen MOAs were executed among the State of Pennsylvania and the
various Metropolitan Planning Organizations and Rural Planning
Organizations within the Commonwealth of Pennsylvania which have
responsibility for undertaking transportation conformity in conjunction
with transportation planning activities.  These MOAs which make up the
SIP revision address the three provisions of the Federal Rule required
under SAFETEA-LU:  40 CFR §93.105 (consultation procedures); 40 CFR
§93.122(a)(4)(ii) (certain 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  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 Rule in their state
conformity SIPs. 

EPA's review of Pennsylvania’s Transportation Conformity SIP revision
indicates that it is consistent with EPA’s guidance in that the SIP
revision included the three elements specified by SAFETEA-LU and EPA’s
guidance. Consistent with the Federal Rule at 40 §CFR 93.105
(consultation procedures), paragraph (a)(2) of each of the executed MOAs
establishes the requirements for the  appropriate agencies, procedures
and allocation of responsibilities as required under 40 CFR §93.105 for
consultation procedures.  In addition, the executed MOAs provide for
appropriate public consultation/public involvement consistent with 40
CFR §93.105.  With respect to 40 CFR §93.122(a)(4)(ii) and 40 CFR
§93.125(c), paragraphs (a)(3) and (a)(4) of the executed MOAs specify
that written commitments for implementation of control measures and
mitigation measures for meeting these requirements will be provided as
needed. 

IV.	Final Action

EPA is hereby approving the Pennsylvania SIP revision for Transportation
Conformity, which was submitted on May 29, 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 docum    ent 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. 

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 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 [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 action 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.  Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking.  This action to approve the Pennsylvania 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, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.

  April 15, 2009           		                                        
\\s\\                           

Dated:                                			          William C. Early, 

	                   	                                             
Acting Regional Administrator,

                                                     		          Region
III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 40 CFR part 52 continues to read as
follows: 

               Authority:  42 U.S.C. 7401 et seq.

Subpart NN ( Pennsylvania

	  In ( 52.2020, the table in paragraph (e)(1) is amended by adding an
entry for Transportation Conformity Requirements at the end of the table
to read as follows:

	

( 52.2020  	Identification of plan.

*	*	*	*	*	

(e)(1)* * *

EPA-APPROVED NON_REGULATORY AND QUASI-REGULATORY MATERIAL

Name of non-regulatory SIP revision 	

Applicable geographic area	

State submittal date 	

EPA approval date	

Additional explanation



*     *     *     *     *     *     *



Transportation Conformity Requirements	

Entire State	

5/29/08	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Memoranda of Understanding between EPA, FHWA, FTA, Pennsylvania
Virginia, and eighteen Metropolitan and Rural Planning Organizations

   

*	*	*	*	*	

 PAGE   

 PAGE   2 

 PAGE   10 

