ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ E PA - R03 - OAR - 20 10 - 0320 ; FRL - ] Approval and Promulgation of Air Quality Implementation Plans; District of Columbia; Transportation Conformity Regulation s AGENCY: Environmental Protection Agen cy (EPA). ACTION: Direct final r

ule. SUMMARY: EPA is taking direct final action to approve revisions to the District of Co l umbia State Implementation Plan (SI P). The revisions establish general and transportation conformity regulations for the Distric t of Columbia
. EPA is approving these revisions in accordance with the requirements of the Clean Air Act. DATES : This rule is effective on [ In sert date 60 day s after publication in the Federal Register] without further notice, unless EPA receives adverse written comment by [ In sert date 30 day s after publication in the Federal Register] . I f 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 y our comments, identified by Docket I D Number EPA - R03 - OAR 20 10 - 0320 by

one of the following methods: A. www.regulations.gov , Follow the on
- line instructions for submitting com ments. B. E
- mail: f

ernandez .cr istina @epa.gov C. Mail: EPA
- R03
- OAR
- 20 10
- 0320 , Cr istina Fe rnandez , Associate Director , Office of Air Planning Programs , Mailcode 3AP 3 0 , U.S. Environmental Protection Agency , Region I II, 16502

Arch Street, Phi ladelphia, Pennsylvania 19103. D. Hand Delivery : At the previously
- listed EPA Region I II address. Such deliveries are only accepted during the Docket ’ s normal hours of operation, and special arrangements should be made for deliveries of boxed infor mation. Instructions: Direct your comments to Docket I D No. EPA - R03 - OAR - 20 10 - 0320 . 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 pe rsonal information provided, unless the comment includes information claimed to be Confidential Business In formation (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBIor otherwise p rotected through www.regulations.gov or e - mail. The www.regulations.gov website is an anony mous access sy stem, which means EPA will not know y our identity or contact information unless you provide it in the body of y our comment. I f y ou send an e
- mail com ment directly to EPA without going through www.regulations.gov , y our 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 I nternet. I f y ou submit an electronic comm ent, EPA recommends that you include your name and other contact information in the body

of y our comment and with any disk or CD
- ROM y ou submit. I f 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 encry

ption, and be free of any

defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov ind ex.3

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 copy righted material, is not placed on the Internet and will be publicl y 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 I I I, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the District of Columbia District Department of the Environment , Air Quality Division, 51 N Street NE , Fifth Floor , Washington, DC 20002
.
FOR FURTHER IN FORMATION 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. SUPPLEMEN TARY INFORMATION:

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 SI P. 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 transport ation related4

criteria pollutants: o zone, particulate matter (PM 2.5 and PM 10 ), carbon monoxide (CO), and nitrogen dioxide (NO 2 ). Conformity to the purpose of the SI P means that transportation activities will not cause new air quality violations, worsen ex isting 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 and provisions related to conformity SI Ps are found in 40 CFR 51.390.

II. What Is the Background for This Action ? On August 10, 2005, the S afe, Accountable, Flexible, Effic ie nt 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

SI Ps. After SAFETEA
- LU, st ate ’ s SI Ps 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 kind of control measures ) ; and 40 CFR 93.125(c) (w ritten commitments to implement certain kinds of mitigation measures )
. S tates are no longer required to submit conformity

SI P revisions that address the other sections of the Federal conformity rule.

III. What Did the State Submit and How Did We Ev aluate It? On January

26, 2010 , the District of Columbia Department of the Environment submitted a revision to its SI P for general and transportation conformity regulation s adopted on J anuary 8 ,5

2010
. The portion of the SI P dealing with general conformity is strictly a recodification of its previously

approved general conformity regulation from Chapter 4 of the District of Columbia Regulations (DCMR) to Chapter 15 and contains no substantial changes from its previous approval. Th e SI P revision section for transportation conformity 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 ).
We reviewed the submittal s to assure consistency with the February

14, 2006 “ In terim Guidance for Implementing the Transportation Conformity provisions in the SAF ETEA
- 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 r equired to address and tailor the afore
- mentioned three sections of the Federal C onformity R ule to be included in their state co nformity SI Ps. EPA's review of the District of Columbia’s proposed SI P revision indicates that it is consistent with EPA’s guidance in that it includes the three elements specified by SAFETEA
- LU. Consistent with the EPA Conformity Rule at 40 CFR 93.105 ( consultation procedures) , Title 20, DCRM Chapter 15, Sections 1503 , 1504 , and 1505 identifies the appropriate agencies, procedures and allocation of responsibilities. In addition, Title 20, DCMR Chapter 15, Section 150 6 p rovides for appropriate , public co nsultation/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 Title 20 , DCRM Chapter 15, Section 1509 of the regulation specifies that written commitments for control mea sures and mitigation measures for meeting these requirements will be provided as6

needed.

I V . Final Action EPA is approv ing the District of Columbia SI P revision s for general and transportation
c onformity , 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 SI P revision if adverse comm ents are filed. This rule will be effective on [ In sert date 60 day s from date of publication in the Federal Register ] without further notice unless EPA receives adverse comment by [ In sert date 30 day s from date of publication in the Federal Register ]. I f 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 SI P submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 407

CFR 52.02(a). Thus, i n reviewing SI P submissions, EPA’s role is to approve state choices, provided that they

meet the criter ia 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 acti on” 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 s eq. );

 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 desc ribed in the Unfunded Mandates Reform Act of 1995 (Public L aw 104
- 4) ;

 d oes 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 s ection 12(d) of the National Technology Transfe r and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and8

 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).

Inaddition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SI P 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 include s 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 Comptrol ler General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 day s 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 day s from date of publication of this document in the Federal Register ]. Filing a petition for reconsideration by the9

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 r eview may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the District of Columbia transportation conformity r egulation s may

not be challenged later in proceedings to enforce its requirements. (See, secti on 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 recordkeep ing requirements, Volatile organic compo unds.

__May 17, 2010 _____ ________ \ \ s \ \

_____________ Dated: William C. Early , Acting R egional Administrator, Region I II
.10

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 . Sub part J District of Columbia 2. In § 52. 470 , the table in paragraph (c) is amended by removing the existing entr y for Chapter 4, Section 403 and adding a new entry for Chapter 15
. The amendments read as follows:
§ 52. 4 70 Id entification of plan
. * * * * * (c)* * * EPA
- APPROVED DI STRI CT OF COLUMBIA REGULATI ONS State c itation Title/subject State effective date E PA

approval date Additional

explanation * * * * * * * Chapter 15 General and Transportation Conformity Section 1500 General

Conformity
Purpose 1/ 8 / 10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 1501 General

Conformity
Requiremen ts 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation11

State c itation Title/subject State effective date E PA

approval date Additional

explanation Section 1502 Transportation

Conformity
Purpose 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begi ns] New Regulation

Section 1503 Transportation

Conformity
Consultation Process 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 1504 Transportation

Conformity
In teragency Consultation Requirements 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 1505 Transportation

Conformity
Conflict Resolution Associated W ith Conformity Determinations 1/ 8/10 [Insert Federal Regis ter publication date] [Insert page number where the document begins] New Regulation

Section 1506 Transportation

Conformity
- Public Consultation Procedures 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 1507 Transportation

Conformity
In teragency Consultation Procedures 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation12

State c itation Title/subject State effective date E PA

approval date Additional

explanation Section 1508 Transportation

Conformity
Procedures for De termining Regional Transportation
Related Emissions 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 150 9 Transportation

Conformity
Enforceability

of Design Concept and Scope and Proj ect - Level Mitigation and Control Measures 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

Section 1599 Definitions 1/ 8/10 [Insert Federal Register publication date] [Insert page number where the document begins] New Regulation

* * * * * * *

* * * * *