ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ E PA - R03 - OAR - 200 8 - 0871 ; FRL - ] Approval and Promulgation of Air Quality Implementation Plans; Maryland ; Transportation Conformity Regulation s
AGENCY: Environmental Protection Agency (EPA). A CTION: Direct final r

ule. SUMMARY: EPA is taking direct final action to approve revisions to the Maryland State Implementation Plan (SI P). 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 [ 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 3 0 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 comme nts, identified by Docket I D Number EPA - R03 - OAR 200 8 - 0871 by

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

ernandez .cr istina @epa.gov C. Mail: EPA
- R03
- OAR
- 200 8
- 0871 , 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, Philadelphia, 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 information. Instructions: Direct y our com ments to Docket I D No. EPA - R03 - OAR - 200 8 - 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 In formation (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that y ou consider to be CBIor otherwise protected 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 y ou provide it in the body of y our comment. I f y ou send an e
- mail comment directly to EPA without going thro ugh 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 comment, EPA recommends that y ou include y o ur 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 y our comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider y our 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 index.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 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 I II, 1650 Arch Street, Philadelphia, Penn sylvania 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 ko tsch.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 s ection 176(c) of the Clean Air Act to e nsure 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 transportation related4

criteria pollutants: o zone, particulate matter (PM 2.5 and PM 10 ), carbon monoxide (CO), and nitrogen dioxide (NO 2 ). Conformity for p urpose s of the SI P 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 regulat ion is found in 40 CFR part 93 (“Federal conformity rule”) and provisions related to conformity

SI Ps are found in 40 CFR 51.390.

I I. 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 con formity 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 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 kind s 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.

I II . 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 its5

State I mplementation Plan (SI P) , 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 SI P revision include d regulation s .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 S IP , Revision # 0 3
- 02 , for transportation conformity amendments that w ere adopted on July

12, 1999
. Th e 2003 SI P r evis i on included amendments to R egulations 26.11. 26. 02 and .03, new Regulations .04 through
. 08 , and recodif i cation of Regul a tion . 0 4 to Regul a tion . 0 9 (excluding Regulation .06)
. On February 5, 2007 , the Maryland Department of the Environment submitted a revision to its S I P , R evision # 06
- 07 , for transportation c onformity purposes . Th e SI P revision included amendments to Regul a tion 26.11.26 .01 through .05 and
. 07 through .09. This SI P revision addresses the three provisions of the EPA Conformity Rule required under SAFETEA
- LU: 40 CF R 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 su pplemented its SI P with Revision #0 6
- 0 7
. The SI P submission correcte d minor citation errors, removed COMAR 26.11.26.05E(4), and corrected a citation i n 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 submittal s to assure co nsistency with the February

14, 2006 , “ In terim Guidance for I mplementing the Transportation Conformity provisions in 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 three6

sections of the Federal C onformity R ule to be included in their state conformity SI Ps. EPA's review of Maryland ’s SI P 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) , CO MAR 26.11.26.0 2 , COMAR 26.11.26.04 , and COMAR 26.11.26.05 identif y the appropriate agencies, procedures , and allocation of responsibilities. In addition, COMAR 26.11.26.0 7 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 SI P specifies that written commitments to implement control measures and mitigation measures for meeting these requirements will be provided as needed. I V . Final Action EPA is approv ing the Maryland SI P revision s for Transportation Conformity , which w ere submitted on August 4, 1998, January 29, 2003 , Feb r

uary 5 , 2007 , and supplemented on July 8, 2008
. EPA is publishing this rule without prior proposal becau se 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 revis ion if adverse comments 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 Fed eral 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 r ule. EPA will not institute7

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 m ay 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 Adminis trator 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); 40 CFR 52.02(a). Thus, i n reviewing SI P 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 bey ond those imposed by state law. For that reason, this action:

 is not a "signific ant 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. 35 01 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 g overnments, as described in the Unfunded Mandates Reform Act of 1995 (Public L aw 104
- 4) ;8

 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 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, disproporti onate 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 C omptroller 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 re port, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will9

submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representative s, 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 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 publicati on 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 peti tion 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 r egulation 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 recordkeep ing requirements, Volatile organic compounds. /s/

_ June 7, 2010 _______ __________________________ Dated: W. C
. E ar ly , Acting R egional Administrator, Region I II
.10

40 CFR part 52 is amended as follows:
PART 52
- [AM ENDED] 1. The authority

citation for part 52 continues to read as follows: Authority : 42 U.S.C. 7401 et seq
. Subpart V Maryland 2. I n § 52.1070, the table in paragraph (c) is amended by removing the existing entr ies 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 Id entification of plan
. * * * * * (c)* * * E PA
- APPROVED REGUL ATI ONS I N THE MARYL AND SI P 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 Regulation11

Code of Maryland administrative regulations (COMAR) citation Title/subject State effective date EPA

approval date Additional

explanation/ citation at 40 CFR § 52.1100 26.11.26.02 Definitions 8/9/9 9 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 Tran s portation

Conformity

– Consultation in General 8/9/99

1/2 9/07 [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 .0 5 Tran s portation

Conformity

– In teragency Consultation Requirements 8/9/99

1/29/07 6/30/08 [Inse rt 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 Tran s portation

Conformity

– Public Consultation Procedures 8/9/99

1/29/07 [Insert Federal

Register publi cation date] [Insert page number where the document begins] New Regulation;

current COMAR citation is 26.11.26.08

26.11.26.08 Tran s portation

Conformity

– In teragency Consultation 8/9/99

1/29/07 [Insert Federal

Register publication date] [Insert page numbe r w here the document begins] New Regulation;

current COMAR citation is 26.11.26.0912

Code of Maryland administrative regulations (COMAR) citation Title/subject State effective date EPA

approval date Additional

explanation/ citation at 40 CFR § 52.1100 26.11.26.09 General

Conformity 1/29/07 [Insert Federal Register publication date] [Insert page number where the document begins] Formerly SIP regulation 26.11.26.03

* * * * * * *

* * * * *