[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49152-49154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24843]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-21-1-7345a; FRL-5894-4]
Approval and Promulgation of State Implementation Plan: Employee
Commute Options (Employer Trip Reduction) Program for Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In this action, EPA is removing the Texas Employee Commute
Options (ECO) rule from the State Implementation Plan (SIP) revision
submitted by the State of Texas for the purpose of establishing an ECO
program (also known as the Employer Trip Reduction (ETR) program). This
action relieves the State from mandatory implementation of the ECO
program in the Houston-Galveston ozone nonattainment area. The
authority for this removal action is based on Public Law 104-70 and the
subsequent EPA policy issued on April 23, 1996. This legislation allows
the states to remove such provisions from the SIP, or withdraw their
submission, if the state notifies the Administrator, in writing, that
the state has undertaken, or will undertake, one or more alternative
methods that will achieve emission reductions equivalent to those to be
achieved by the removed or withdrawn provisions.
DATES: This action is effective on November 18, 1997, unless adverse or
critical comments concerning this action are submitted and postmarked
by October 20, 1997. If the effective date is delayed, timely notice
will be published in the Federal Register.
ADDRESSES: Comments must be submitted to Mr. J. Behnam, P.E., Air
Planning Section (6PDL), Environmental Protection Agency,Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733.
Copies of the State ECO withdrawal request are available for
inspection during normal business hours at the following locations.
Interested persons wanting to examine these documents 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 75202-2733, telephone: (214) 665-7214.
Air and Radiation Docket and Information Center, Environmental
[[Page 49153]]
Protection Agency, 401 M Street, SW., Washington, DC 20460.
Texas Natural Resource Conservation Commission, 12124 Park 35
Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P.E., Air Planning
Section (6PDL), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION:
I. Background
Implementation of the provisions of the 1990 Clean Air Act (the
Act) required employers with 100 or more employees in the Houston-
Galveston ozone nonattainment area to participate in a trip reduction
program. Section 182(d)(1)(B) required that employers submit ETR
compliance plans to the State two years after the SIP is submitted to
the EPA. These compliance plans were intended to ``convincingly
demonstrate'' that within four years after the SIP is submitted, the
employer will achieve an increase in the average passenger occupancy of
its employees who commute to work during the peak period by not less
than 25 percent above the average vehicle occupancy of the
nonattainment area.
On November 13, 1992, the Governor of Texas submitted a SIP
revision for approval of the ECO regulation which was adopted by the
State on October 16, 1992. On October 18, 1993, EPA proposed approval
of the Texas ECO SIP in the Federal Register (FR) because it met the
requirements of section 182(d)(1)(B) of the Act. The EPA issued its
final approval of the original Texas ECO SIP revision in a Federal
Register action on March 7, 1995.
Public Law 104-70 allows states to remove provisions for ECO
programs from their SIPs. The state must notify the appropriate EPA
Regional Administrator, in writing, that it will exercise this option
and will use alternative methods to achieve emission reductions
equivalent to those which would be achieved in the ECO program. The
April 23, 1996, EPA policy memorandum specifies that the state's letter
requesting removal of its ECO program from an approved SIP must include
an estimate of the emission reductions to have been provided by the ECO
program and explain the basis for this estimate. Also, the state is
required to give the estimated emission reduction from the state's
substitute measures to be used in place of its ECO program.
II. State Submission and EPA Evaluation
Pursuant to section 182(d)(1)(B) of the Act, the SIP was submitted
by Texas to satisfy the statutory mandate that an ECO Program be
established for employers with 100 or more employees, such that
compliance plans developed by such employers are designed to
convincingly demonstrate an increase in the average passenger occupancy
of their employees who commute to work during the peak period, by no
less than 25 percent above the average vehicle occupancy of the
nonattainment area. In a letter dated September 23, 1996, Governor
George W. Bush requested removal of the ECO provisions from the SIP.
This request was based on Public Law 104-70, signed by President
Clinton on December 23, 1995, which amended the 1990 Clean Air Act so
that previously mandated ECO programs are now at the option of the
states. The removal of the ECO SIP revision and the associated ECO plan
submission date depends on identifying equivalent emissions reductions.
The State's request for removal of the ECO program indicated that
the State would use the emission reductions from its motor vehicle
inspection/maintenance (I/M) program, called Texas Motorist's Choice
(TMC), as the emission offset. The reductions produced by the I/M
program were to offset the volatile organic compound (VOC) emission
reductions attributed to the ECO program in the 15 percent and 9
percent rate-of-progress (ROP) SIP revisions for the Houston/Galveston
ozone nonattainment area. According to the State's modeling, the TMC
program would have produced excess emission reductions of 8.30 tons per
day in 1996 for the 15 percent ROP SIP and 10.52 tons per day in 1999
for the 9 percent ROP SIP. These reductions were intended to offset the
1.81 tons per day and 1.02 tons per day, respectively, which were
claimed in the original ROP SIPs for the ECO program. However, the I/M
rule (60 FR 48029) allows the State flexibility to design an I/M
program that would meet the EPA's mandated low enhanced performance
standards. The TMC I/M program meets the I/M flexible rule and is the
federally mandated program for the State of Texas. Use of the excess
emissions credits from the TMC I/M program is not consistent with EPA's
interpretation of the I/M rule. The I/M rule at 40 CFR 51.351(g)
entitled ``Alternate Low Enhanced I/M Performance Standard'' (60 FR
48035) specifies as a requirement that in order to be eligible for the
low enhanced program, this program must provide sufficient reduction to
allow for approval of the State's 15 and 9 percent SIPs. The Texas' 15
and 9 percent SIPs take emissions credits for the TMC I/M program, and
therefore, there is no excess emissions from the TMC I/M program to
offset the emissions reductions claimed for the ECO program in the
original 15 and 9 percent ROP SIPs.
Subsequently, EPA conferred with the State to clarify the Texas
emission offset approach. The State submitted a letter (received on
March 28, 1997) which clarified the State emissions offset approach in
the ROP SIPs. Based on this clarification, the State's offset for
emissions reductions from the ECO program will come from the total
excess emissions reductions identified from all control measures in the
15 percent and 9 percent ROP SIPs (23.73 tons per day and 10.69 tons
per day, respectively). These reductions offset the ECO emissions
reductions of 1.81 tons per day and 1.02 tons per day claimed in the
original 15 percent and 9 percent ROP SIPs, respectively.
The EPA believes that it was necessary to offset the ECO emissions
by non-federally-mandated control measures, and emissions reductions
from the TMC I/M program, which is a federally mandated program as
discussed above, cannot be used to offset the emissions reductions
claimed in the original ROP SIPs. The EPA has determined that Texas'
approach has adequately offset the ECO emissions reductions and meets
the intended purpose of the EPA ECO Policy memorandum. Therefore, EPA
is removing the Texas ECO rule, incorporated by reference, from Code of
Federal Regulations and relieves the State of Texas from implementation
of Texas ECO program, approved on March 7, 1995.
III. Final Action
In this action, EPA is removing the Texas ECO rule, which was
submitted by the Governor to EPA on November 13, 1992, and approved by
EPA on March 7, 1995, from the Code of Federal Regulations. The EPA has
determined that the State of Texas has satisfied the requirements of
the EPA ECO policy by offsetting the ECO emissions reductions claimed
in the original 15 and 9 percent ROP SIPs by the excess emissions
reductions form non-federally-mandated control measures.
The EPA is publishing this final approval action without advanced
notice of proposal because EPA views this as a noncontroversial
amendment and anticipates no adverse comments. However, in a separate
document in this
[[Page 49154]]
Federal Register publication, EPA is simultaneously proposing to
approve this SIP revision should adverse or critical comments be filed.
This action will be effective November 18, 1997, unless adverse or
critical comments concerning this action are submitted and postmarked
by October 20, 1997.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received concerning this
action will then be addressed in a subsequent final rule based on this
action serving as a proposed rule. The EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are received
on this action, the public is advised that this action will be
effective November 18, 1997.
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604.
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. See 46 FR
8709. Small entities include small businesses, small not-for-profit
enterprises, and governmental entities with jurisdiction over
populations of less than 50,000.
The 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 impose any new requirements, I certify that it does
not have a significant impact on small entities. Moreover, due to the
nature of the Federal-State relationship under the Act, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The Act forbids EPA from
basing its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.
7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, the EPA must prepare a budgetary
impact statement to accompany any proposed or final rule that includes
a Federal mandate that may result in estimated costs to State, local,
or tribal governments in the aggregate; or to private sector, of $100
million or more. Under section 205, the 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 the 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 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.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted 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
General Accounting Office 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).
E. Petition 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 November 18, 1997. Filing a petition for
reconsideration of this final rule by the Regional Administrator does
not affect the finality of this rule for purposes of judicial review;
nor does it extend the time within which a petition for judicial review
may be filed, or postpone the effectiveness of this rule. 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, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: August 12, 1997.
Jerry Clifford,
Acting Regional Administrator.
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. 7401-7671q.
Subpart SS--Texas
Sec. 52.2270 [Amended]
2. Section 52.2270 is amended by removing and reserving paragraph
(c)(91).
[FR Doc. 97-24843 Filed 9-18-97; 8:45 am]
BILLING CODE 6560-50-F
