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-OAR2008-0871 by one of the following methods:

 A. 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 
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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. 
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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 
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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 
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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 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 
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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 
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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);
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 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 
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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.
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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
11

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 8/9/99

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
12

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

* * * * * * *

 

 

* * * * *