[Federal Register Volume 76, Number 186 (Monday, September 26, 2011)]
[Rules and Regulations]
[Pages 59252-59254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24526]



40 CFR Part 52

[EPA-R03-OAR-2011-0631; FRL-9470-2]

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 (CAA).

DATES: This rule is effective on November 25, 2011 without further 
notice, unless EPA receives adverse written comment by October 26, 
2011. 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-2011-0631 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2008-0631, Cristina Fernandez, Associate 
Director, Office of Air Planning Programs, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 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-
2011-0631. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
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 http://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 
http://www.regulations.gov index. 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 http://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 

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by 
e-mail at [email protected].

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 
CAA 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 CAA 
for the following transportation related 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 CAA, 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.

[[Page 59253]]

III. What did the state submit and how did we evaluate it?

    On September 17, 2010, the Maryland Department of the Environment 
submitted a revision to its SIP, Revision 10-07 to EPA for 
transportation conformity amendments adopted on June 30, 2008. The SIP 
revision included regulations .01 through .09 under COMAR 26.11.26 
    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 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, 
COMAR, and COMAR identify the appropriate 
agencies, procedures, and allocation of responsibilities. In addition, 
COMAR 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 

IV. Final Action

    EPA is approving the Maryland SIP revisions for transportation 
conformity, which were submitted on September 17, 2010. EPA is 
publishing this rule without prior proposal because EPA 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 November 25, 2011 without further notice unless EPA 
receives adverse comment by October 26, 2011. 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. 
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 CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. 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 CAA; 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. 

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 November 25, 2011. 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 Maryland transportation 
conformity regulation may not be challenged later in proceedings to 
enforce its requirements. (See, section 307(b)(2)).

[[Page 59254]]

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.

    Dated: August 29, 2011.
W. C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:


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 Sec.  52.1070, the table in paragraph (c) is amended by revising 
the entries for COMAR and, and adding new 
entries for COMAR,,,,,, and in numercal order. The 
amendments read as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (c)* * *

                                                      EPA-Approved Regulations in the Maryland SIP
       Code of Maryland                                             State
  administrative regulations             Title/subject            effective           EPA approval date          Additional  explanation/citation at  40
       (COMAR) citation                                              date                                                      CFR 52.1100
                                                                      * * * * * * *
26.11.26.....................  Conformity  Purpose.........................      6/30/08  9/26/11 [Insert page number       New Regulation.
                                                                               where the document begins].  Definitions.....................      6/30/08  9/26/11 [Insert page number       Definitions added for transportation
                                                                               where the document begins.        conformity; definitions for general
                                                                                                                 conformity were approved at (c)(136).  Transportation Conformity.......      6/30/08  9/26/11 [Insert page number       New Regulation.
                                                                               where the document begins].  Transportation Conformity--           6/30/08  9/26/11 [Insert page number       New Regulation.
                                Consultation in General.                       where the document begins].  Transportation Conformity--           6/30/08  9/26/11 [Insert page number       New Regulation.
                                Interagency Consultation                       where the document begins].
                                Requirements.  Transportation Conformity--           6/30/08  9/26/11 [Insert page number       New Regulation.
                                Dispute Resolution.                            where the document begins].  Transportation Conformity--           6/30/08  9/26/11] [Insert page number      New Regulation.
                                Public Consultation Procedures.                where the document begins].  Transportation Conformity--           6/30/08  9/26/11 [Insert page number       New Regulation.
                                Interagency Consultation.                      where the document begins].  General Conformity..............      6/30/08  9/26/11 [Insert page number       Formerly SIP regulation
                                                                               where the document begins].
                                                                      * * * * * * *

* * * * *
[FR Doc. 2011-24526 Filed 9-23-11; 8:45 am]