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                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
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###### Environmental Protection Agency

          - 40 CFR Part 52
          - [R03-OAR-2005-MD-0005; FRL-7992-5]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Final rule.

# SUMMARY:

                        EPA is approving a revision to the Maryland State Implementation Plan (SIP). The revision repeals Maryland's Nitrogen Oxides (NOX) Budget Program under COMAR 26.11.27 and 26.11.28. This action is in accordance with the Clean Air Act.                    

# DATES:

*Effective Date:*                         This final rule is effective on December 2, 2005.                    

# ADDRESSES:

                        EPA has established a docket for this action under Regional Material in EDocket (RME) ID Number R03-OAR-2005-MD-0005. All documents in the docket are listed in the RME index at                         *http://docket.epa.gov/​rmepub/​.*                         Once in the system, select “quick search,” then key in the appropriate RME identification number. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (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 RME or in hard copy for public inspection 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:

                        Marilyn Powers, (215) 814-2308, or by e-mail at                         *powers.marilyn@epa.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Background

                    On July 28, 2005, (70 FR 43818), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of a SIP revision to repeal Maryland's Ozone Transport Commission (OTC) NOX                     Budget Program (OTC Program) under COMAR 26.11.27 (Post-RACT Requirements for NOX                     Sources) and COMAR 26.11.28 (Policies and Procedures Relating to Maryland's NOX                     Budget Program). The formal SIP revision was submitted by the Maryland Department of the Environment (MDE) on December 1, 2003.                

## II. Summary of SIP Revision

                    The SIP revision repeals Maryland's OTC Program, which implemented Maryland's portion of a regional cap and trade program to reduce transport of ozone in 12 northeastern states and the District of Columbia. Maryland's OTC Program has been superseded by its more stringent, Federally-approved NOX                     Reduction and Trading Program which satisfies the NOX                     SIP Call.                

A detailed discussion of the rationale for EPA's approval action is provided in the NPR and will not be restated here. EPA did not receive any comments on the NPR.

## III. Final Action

EPA is approving the repeal of COMAR 26.11.27 and 26.11.28 as a revision to the Maryland SIP.

## IV. Statutory and Executive Order Reviews

### A. General Requirements

                    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*). Because this rule approves pre-existing requirements                           ( print page 66264)                        under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.                

                    In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                

### 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 rule 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**                    . This rule 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 January 3, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this 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 repeal Maryland's NOX                     Budget Trading Program under COMAR 29.11.27 and 29.11.28 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
      - Nitrogen dioxide
      - Ozone

Dated: October 24, 2005.

Donald S. Welsh,

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 

§ 52.1070

2. In § 52.1070, the table in paragraph (c) is amended by removing the entries for COMAR 26.11.27 (26.11.27.01 through 26.11.27.14) and 26.11.28 (26.11.28.01 through 26.11.28.13). 

[FR Doc. 05-21753 Filed 11-1-05; 8:45 am]

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