[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Rules and Regulations]
[Pages 36790-36794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17202]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-56-1-7391a; FRL-6372-6]
Approval and Promulgation of Implementation Plan for Texas:
Transportation Conformity Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: We, the EPA, are approving a revision to the Texas State
Implementation Plan (SIP) that contains the transportation conformity
rule. The conformity rules assure that in air quality nonattainment or
maintenance areas, projected emissions from transportation plans and
projects stay within the motor vehicle emissions ceiling in the SIP.
The transportation conformity SIP revision enables the State to
implement and enforce the Federal transportation conformity
requirements at the State level per 40 Code of Federal Regulations
(CFR) part 51, subpart T and 40 CFR part 93, subpart A--Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Laws. Our approval action streamlines the
conformity process and allows direct consultation among agencies at the
local levels. Our final approval action is limited to 40 CFR part 51,
subpart T and 40 CFR part 93, subpart A (Transportation Conformity). We
approved the SIP revision sent under 40 CFR part 51, subpart W
(conformity of general Federal actions) on March 11, 1998 (63 FR
11833).
We approve this SIP revision under sections 110(k) and 176 of the
Clean Air Act (Act). We have given our rationale for approving this SIP
revision in this action.
DATES: This rule is effective on September 7, 1999, without further
notice, unless EPA receives adverse comment by August 9, 1999. If we
receive adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: You should send your written comments to Mr. Thomas H.
Diggs, Chief, Air Planning Section (6PDL) at the address given below.
You may inspect copies of the State's SIP revision and other relevant
information during normal business hours at the following locations. If
you wish to examine these documents, you should make an appointment
with the appropriate office at least 24 hours before the visiting day.
Air Planning Section (6PDL), Multimedia Planning and Permitting
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Dallas, Texas 75202, Telephone: (214) 665-7214.
Texas Natural Resource Conservation Commission, Mobile Source Division,
12124 Park 35 Circle, Austin, Texas 78753, Telephone: (512) 239-1943.
FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning
Section (6PDL), Multimedia Planning and Permitting Division,
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, Telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION:
We have outlined the contents of this document below for your
reading convenience:
I. Background
A. What is a SIP?
B. What is the Federal approval process for a SIP?
C. What is transportation conformity?
D. Why must the State send a transportation conformity SIP?
E. How does transportation conformity work?
II. Approval of the State Transportation Conformity Rule
A. What did the State send?
B. What is EPA approving today and why?
C. How did the State satisfy the interagency consultation
process (40 CFR 93.105)?
D. Why did the State exclude the grace period for new
nonattainment areas (40 CFR 93.102(d))?
E. What parts of the rule are excluded?
III. Opportunity for Public Comments
IV. Administrative Requirements
I. Background
A. What is a SIP?
The states under section 110 of the Act must develop air pollution
regulations and control strategies to ensure that state air quality
meets the National Ambient Air Quality Standards (NAAQS) established by
the EPA. The Act under section 109 established these ambient standards
which currently includes six criteria pollutants. These pollutants are:
carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and
sulfur dioxide.
[[Page 36791]]
Each state must send these regulations and control strategies to
us, the EPA, for approval and incorporation into the Federally
enforceable SIP.
Currently, each state has a federally approved SIP which protects
air quality and has emission control plans for nonattainment areas.
These SIPs can be extensive, containing state regulations or other
enforceable documents and supporting information such as emission
inventories, monitoring networks, and modeling demonstrations.
B. What is the Federal Approval Process for a SIP?
The states must formally adopt the regulations and control
strategies consistent with state and Federal laws for incorporating the
state regulations into the Federally enforceable SIP. This process
generally includes a public notice, public hearing, public comment
period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the
state will send these provisions to us for inclusion in the federally
enforceable SIP. We must then decide on an appropriate Federal action,
provide public notice, and request additional public comment on the
action. If anyone sends adverse comments, we must consider the comments
before a final action.
We incorporate all state regulations and supporting information
(sent under section 110 of the Act) into the Federally approved SIP
after our approval action. We maintain records of such SIP actions in
the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled
``Approval and Promulgation of Implementation Plans.'' The Government
does not reproduce the text of the Federally approved state regulations
in the CFR. They are ``incorporated by reference,'' which means that
the specific state regulation is cited in the CFR and is considered a
part of the CFR the same as if the text were fully printed in the CFR.
C. What is Transportation Conformity?
Conformity first appeared in the Act's 1977 amendments (Pub. L. 95-
95). Although the Act did not define conformity, it stated that no
Federal department could engage in, support in any way or provide
financial assistance for, license or permit, or approve any activity
which did not conform to a SIP which has been approved or promulgated.
The Act's 1990 Amendments expanded the scope and content of the
conformity concept by defining conformity to an implementation plan.
Section 176(c) of the Act defines conformity as conformity to the SIP's
purpose of eliminating or reducing the severity and number of
violations of the NAAQS and achieving expeditious attainment of such
standards. Also, the Act states that no Federal activity will: (1)
cause or contribute to any new violation of any standard in any area,
(2) increase the frequency or severity of any existing violation of any
standard in any area, or (3) delay timely attainment of any standard or
any required interim emission reductions or other milestones in any
area.
D. Why Must the State Send a Transportation Conformity SIP?
We were required to issue criteria and procedures for determining
conformity of transportation plans, programs, and projects to a SIP by
section 176(c) of the Act. The Act also required the procedure to
include a requirement that each State submit a revision to its SIP
including conformity criteria and procedures. We published the first
transportation conformity rule in the November 24, 1993, Federal
Register (FR), and it was codified at 40 CFR part 51, subpart T and 40
CFR part 93, subpart A. We required the States and local agencies to
adopt and submit a transportation conformity SIP revision to us by
November 25, 1994. The State of Texas sent a transportation conformity
SIP on November 6, 1994, and we approved this SIP on November 8, 1995
(60 FR 56244). We revised the transportation conformity rule on August
7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997
(62 FR 43780), and it was codified under 40 CFR part 51, subpart T and
40 CFR part 93, subpart A--Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Laws (62 FR 43780). Our action of August 15, 1997, required the
States to change their rules and send a SIP revision by August 15,
1998.
E. How Does Transportation Conformity Work?
The Federal or State transportation conformity rule applies to all
nonattainment and maintenance areas in the State. The Metropolitan
Planning Organizations (MPO), the State Departments of Transportation
(in absence of a MPO), and U.S. Department of Transportation make
conformity determinations. These agencies make conformity
determinations on programs and plans such as transportation improvement
programs, transportation plans, and projects. The MPOs calculate the
projected emissions for the transportation plans and programs and
compare those calculated emissions to the motor vehicle emissions
ceiling established in the SIP. The calculated emissions must be
smaller than the motor vehicle emissions ceiling for showing a positive
conformity with the SIP.
II. Approval of the State Transportation Conformity Rule
A. What did the State Send?
On December 10, 1998, the Governor of Texas sent a SIP revision
that includes the State's transportation conformity and consultation
rule. The Texas Natural Resource Conservation Commission (TNRCC)
adopted this SIP revision on November 18, 1998, after appropriate
public participation and interagency consultation.
B. What is EPA Approving Today and Why?
We are approving the Texas transportation conformity rule that the
Governor of Texas sent us on December 10, 1998 except for the
incorporation by reference of sections 93.102(c), 93.104(d), 93.109(c)-
(f), 93.118(e), 93.120(a)(2), 93.121(a)(1), and 92.124(b) of 40 CFR
into 30 Texas Administrative Code (TAC) 114.26(c). The rationale for
exclusion of these sections are discussed in Section II.E of this
action. The TNRCC has adopted the Federal rules by ``incorporation by
reference'' except for the interagency consultation section (40 CFR
93.105) and the grace period for new nonattainment areas (40 CFR
93.102(d)). We will discuss the reasons for exclusion of these two
sections later in this document.
``Incorporation by Reference'' (IBR) means that the State adopted
the Federal rules without rewriting the text of the Federal rules but
by referring to them for inclusion as if they were printed in the state
regulation. The Federal Transportation Conformity Rule required the
states to adopt majority of the Federal rules in verbatim form with a
few exceptions. The States can not make their rules more stringent than
the Federal rules unless the State's rules apply equally to nonfederal
entities as well as Federal entities. The TNRCC Transportation
Conformity Rule is the same as the Federal rule and the State has made
no additional changes or modifications, with the exception of those
sections mentioned above.
We have evaluated this SIP revision and have determined that the
State has fully adopted the Federal transportation conformity rules as
described in 40 CFR
[[Page 36792]]
part 51, subpart T and 40 CFR part 93, subpart A. Also, the TNRCC has
completed and satisfied the public participation and comprehensive
interagency consultations during development and adoption of these
rules at the local level. Therefore, we are approving this SIP
revision.
Our approval action does not include general conformity (40 CFR
part 51, subpart W). We approved the Texas general conformity SIP on
March 11, 1998 (63 FR 11833).
C. How did the State Satisfy the Interagency Consultation Process (40
CFR 93.105)?
Our rule requires the States to develop their own processes and
procedures for interagency consultation among the Federal, State, and
local agencies and resolution of conflicts meeting the criteria in 40
CFR 93.105. The SIP revisions must include processes and procedures to
be followed by the MPO, State Department of Transportation (DOT), and
the U.S. Department of Transportation (USDOT) in consulting with the
State and local air quality agencies and EPA before making conformity
determinations. Also, the transportation conformity SIP revision must
have processes and procedures for the State and local air quality
agencies and EPA in coordinating development of applicable SIPs with
MPOs, State DOT, and USDOT.
The State developed its own consultation rule based on the elements
in 40 CFR 93.105, and excluded this section from IBR. As a first step,
the State established an ad hoc multiagency committee that included
representatives from the State air quality agency, State DOT, USDOT,
MPOs, EPA, the local air quality agency, local transportation agencies,
and local transit operators. The State air quality agency served as the
lead agency in coordinating the multiagency efforts for developing the
consultation rule. The committee met approximately biweekly and drafted
consultation rules by considering the elements in 40 CFR 93.105 and 23
CFR part 450, and by integrating the local procedures and processes
into the final consultation rule. The consultation rule developed
through this process is unique to the State of Texas and is codified
under section 114.260(d) of the State rule. We have determined that the
State adequately included all elements of 40 CFR 93.105 and meets the
EPA SIP requirements.
D. Why did the State Exclude the Grace Period for New Nonattainment
Areas (40 CFR 93.102(d))?
The State excluded 40 CFR 93.102(d) from its IBR. Section 93.102(d)
allows up to 12 months for newly designated nonattainment areas to
complete their conformity determination. The Sierra Club challenged
this section of the rule arguing that allowing a 12-month grace period
was unlawful under the Act. On November 4, 1997, the United States
Court of Appeals for the District of Columbia Circuit held in Sierra
Club v. Environmental Protection Agency, No. 96-1007, cited EPA's grace
period violates the plain terms of the Act and, therefore, is unlawful.
Based on this court action, the State has excluded this section from
its rule. We agree with the State's action, and exclusion of 40 CFR
93.102(d) will not prevent us from approving the State transportation
conformity SIP.
E. What Parts of the Rule are Excluded?
We promulgated the transportation conformity rule on August 15,
1997. On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued its opinion in Environmental
Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court
granted the environmental group's petition for review and ruled that 40
CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) are unlawful and remanded
40 CFR 93.118(e) and 93.120(a)(2) to EPA for revision to harmonize
these provisions with the requirements of the Act for an affirmative
determination the Federal actions will not cause or increase violations
or delay attainment. The sections that were included in this decision
were:
(a) 40 CFR 93.102(c)(1) which allowed certain projects for which
the National Environmental Policy Act (NEPA) process has been completed
by the DOT to proceed toward implementation without further conformity
determinations during a conformity lapse,
(b) 40 CFR 93.118(e) which allowed use of motor vehicle emissions
budgets (MVEB) in the submitted SIPs after 45 days if EPA had not
declared them inadequate,
(c) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a
disapproved SIP for 120 days after disapproval,
(d) 40 CFR 93.121(a)(1) which allowed the nonfederally funded
projects to be approved if included in the first three years of the
most recently conforming transportation plan and transportation
improvement programs, even if conformity status is currently lapsed,
and
(e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP
that allocated portions of a safety margin to transportation activities
for conformity purposes before EPA approval.
Since the States were required to submit transportation conformity
SIPs not later than August 15, 1998, and include those provisions in
verbatim form, the State's SIP revision includes all those sections
which the Court ruled unlawful or remanded for consistency with the
Act. The EPA can not approve these sections.
We believe that the TNRCC has complied with the SIP requirements
and has adopted the Federal rules which were in effect at the time that
the transportation conformity SIP was due to the EPA. If the court had
issued its ruling before adoption and SIP submittal by the TNRCC, we
believe the TNRCC would have removed these sections from its IBR. The
TNRCC has expended its resources and time in preparing this SIP and
meeting the Act's statutory deadline, and EPA acknowledges the agency's
good faith effort in submitting the transportation conformity SIP on
time.
The TNRCC will be required to submit a SIP revision in the future
when EPA revises its rule to comply with the court decision. Because
the court decision has invalidated these provisions, we believe that it
would be reasonable to exclude the corresponding sections of the state
rules from this SIP approval action. As a result, we are not taking any
action on the IBR of sections 93.102(c), 93.104(d), 93.109(c)-(f),
93.118(e), 93.120(a)(2), 93.121(a)(1), and 93.124(b) of 40 CFR at 30
TAC 114.260(c) under the State conformity rule. The conformity
determinations affected by these sections should comply with the
relevant requirements of the statutory provisions of the Act underlying
the court's decision on these issues. EPA will be issuing guidance on
how to implement these provisions in the interim prior to EPA amendment
of the federal transportation conformity rules. Once these Federal
rules have been revised, conformity determinations in Texas should
comply with the requirements of the revised Federal rule until
corresponding provisions of the Texas conformity SIP have been approved
by EPA.
III. Opportunity for Public Comments
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comment. However, in the ``Proposed Rules''
[[Page 36793]]
section of today's Federal Register publication, we are publishing a
separate document that will serve as the proposal to approve this SIP
revision if adverse comments are filed. This rule will be effective on
Septmber 7, 1999, without further notice unless we receive adverse
comment by August 9, 1999. If EPA receives adverse comment, we will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. We will address all public
comments in a subsequent final rule based on the proposed rule. We will
not institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
IV. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 12875
Under E. O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local and tribal governments, the nature of their
concerns, copies of any written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, E.O. 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be ``economically
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it approves a State program.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to OMB, in a separately identified section of the preamble to
the rule, a description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This final rule will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Act do not create any
new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves preexisting requirements under State or local law, and imposes
no new requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
G. 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
[[Page 36794]]
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. The 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).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 7, 1999. 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 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,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Transportation conformity, Transportation-air
quality planning, Volatile organic compounds.
Dated: June 9, 1999.
W. B. Hathaway,
Acting Regional Administrator, Region 6.
Title 40, part 52, of the Code of Federal Regulations is amended to
read as follows:
PART 52--[AMENDED]
Subpart SS--Texas
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671 et seq.
2. In Sec. 52.2270 the table in paragraph (c) is amended by
removing section 114.27 and adding section 114.260 to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA Approved Regulations in the Texas SIP
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State approval/ EPA approval
State citation Title/subject submittal date date Explanation
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Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
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Section 114.260.............. Transportation 12/10/98 July 8, 1999, 1. No action is taken on the
Conformity. 64 FR 36794. portions of 30 TAC 114.260
that contain 40 CFR
93.102(c), 93.104(d)
,93.109(c)-(f), 93.118(e),
93.120(a)(2), 93.121(a)(1),
and 93.124(b).
2. TNRCC order (Docket No.98-
0418 RUL) November 23, 1998.
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[FR Doc. 99-17202 Filed 7-7-99; 8:45 am]
BILLING CODE 6560-50-U
