[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Rules and Regulations]
[Pages 56244-56246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27680]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-56-1-7209a; FRL-5322-4]


Approval and Promulgation of Implementation Plan for Texas: 
Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This document approves a revision to the Texas State 
Implementation Plan (SIP) that contains transportation conformity 
rules. The transportation conformity SIP revision enables the State to 
implement and enforce the Federal transportation conformity 
requirements at the State level in accordance with 40 CFR part 51, 
subpart T--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 Act. The final 
approval is limited only to 40 CFR part 51, subpart T (Transportation 
Conformity), and the SIP revisions submitted under 40 CFR part 51, 
subpart W, conformity of general Federal actions, will be addressed in 
a separate notice. The EPA is approving this SIP revision under section 
110(k) of the Clean Air Act (CAA). The rationale for the final approval 
action and other information are provided in this document.

DATES: This action is effective on January 8, 1996, unless notice is 
postmarked by December 8, 1995 that someone wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register (FR).

ADDRESSES: Copies of the State's submittal and other relevant 
information 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, 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:

I. Background

    Conformity provisions first appeared in the CAA amendments of 1977 
(Public Law 95-95). Although these provisions did not define 
conformity, they provided 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 CAA Amendments of 1990 expanded the scope and content of the 
conformity provisions by defining conformity to an implementation plan. 
Conformity is defined in section 176(c) of the CAA as conformity to the 
SIP's purpose of eliminating or reducing the severity and number of 
violations of the National Ambient Air Quality Standards and achieving 
expeditious attainment of such standards, and that such activities will 
not: (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.
    The CAA requires EPA to promulgate criteria and procedures for 
determining conformity of all Federal actions (transportation and 
general) to a SIP. The EPA published the final transportation 
conformity rules in the November 24, 1993, Federal Register and 
codified them at 40 CFR part 51 subpart T--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 Act. All other Federal actions (actions other than 
those under Title 23 U.S.C. or the Federal Transit Act) were addressed 
in a separate Federal Register notice. The conformity rules require the 
States and local agencies to adopt and submit a transportation 
conformity SIP revision to the EPA not later than November 24, 1994. 
This notice does not address the conformity requirements of general 
Federal actions (40 CFR part 51 subpart W), and EPA will take action on 
these SIPs in a separate notice.

II. Evaluation of State's Submission

    In response to the Federal Register notice of November 24, 1993, 
the State of Texas submitted a SIP revision which included adoption of 
the transportation conformity rules and other required documents. The 
transportation conformity SIP revision is applicable to the 
nonattainment or maintenance areas. It must be noted that the final 
transportation conformity rule requires that the majority of the 
Federal rules be incorporated in verbatim form with a few exceptions, 
however, the State rules can not be more stringent than the Federal 
rules. The consultation section of the rule (40 CFR 51.402) is among 
these exceptions and the State and local (where applicable) air quality 
agencies are required to develop their own consultation rules. The 
following paragraphs present EPA's review and evaluation of this SIP 
revision.

A. Development of Consultation Rules

    The Federal rules require the SIP's to include processes and 
procedures for interagency consultation among the Federal, State, and 
local agencies and resolution of conflicts in accordance with the 
criteria set forth in 40 CFR part 51 Sec. 51.402. Specifically, to 
implement the requirements of Section 51.402, the SIP revisions must 
include processes and procedures to be undertaken by Metropolitan 
Planning Organizations (MPO), State Department of 

[[Page 56245]]
Transportation, and the U. S. Department of Transportation (USDOT) with 
State and local air quality agencies and EPA before making conformity 
determinations, and by State and local air quality agencies and EPA 
with MPO's, State Departments of Transportation, and USDOT in 
developing applicable SIPs.
    In order to satisfy these requirements, the State established an ad 
hoc multi-agency committee which included representatives from the 
State air quality agency, State DOT, USDOT, MPO's, 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 multi-agency efforts for developing the consultation 
rules. The committee met approximately on a biweekly basis and drafted 
consultation rules by using the requirements of 40 CFR 51.402 and 23 
CFR 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. The State has adequately 
addressed all provisions of 40 CFR 51.402 and has met the EPA SIP 
requirements.

B. Transition From the Interim Period to the Control Strategy Period; 
40 CFR 51.448

    The EPA promulgated an interim final rule on February 8, 1995, that 
amended certain provisions of 40 CFR 51.448 in the Federal 
transportation conformity rules. The interim final rule aligned the 
timing of certain transportation conformity consequences with the 
imposition of the CAA highway sanctions for a six-month period. The 
amendment delays the lapse in conformity status, which would otherwise 
prevent approval of new highway and transit projects, and allow States 
more time to prevent the lapse by submitting complete control strategy 
implementation plan. Since the States were required to submit 
transportation conformity SIPs not later than November 24, 1994, the 
State's SIP revision does not include the amendment of February 8, 
1995. Lack of amended sections of 40 CFR 51.448 in the State's rules 
makes the State's rules more stringent than the Federal rules. However, 
the EPA believes that the State 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. The State in no 
way intentionally adopted more stringent rules than the Federal rules 
in developing its transportation conformity SIP. Therefore, it would be 
unreasonable to discredit the State's good faith effort in submitting 
the transportation conformity SIP on time and disapprove this portion 
of the State's SIP. Since the State will be required to submit a SIP 
revision in the near future to incorporate the amended portions of the 
Federal transportation conformity rules, the EPA believes that it would 
be reasonable to exclude the section of the State's rules which 
corresponds to 40 CFR 51.448, from this SIP approval action. As a 
result, the EPA is not taking any action on a portion of section 
114.27(c) that contains provisions of 40 CFR 51.448 under the State 
rules.

C. Evaluation of the State Rules

    On November 6, 1994, the Governor of Texas submitted a SIP revision 
in compliance with 40 CFR Part 51 Subpart T that contained the State's 
transportation conformity and its consultation rule. The SIP revision 
was adopted by the Texas Natural Resource Conservation Commission 
(TNRCC) on October 19, 1994, after appropriate public participation and 
interagency consultation. The TNRCC has adopted the Federal rules by 
``incorporation by reference'' except for the interagency consultation 
rule which has been developed in the manner described earlier in this 
notice. The TNRCC transportation conformity rules are identical to the 
Federal rules and the State has made no additional changes or 
modifications. The EPA has determined that the TNRCC's transportation 
conformity rule meets the Federal requirements except as provided in 
section II(B) of this notice, and EPA is approving this SIP revision.

III. Final Approval Action

    The EPA is approving the transportation conformity SIP revision for 
the State of Texas except for a portion of section 114.27(c) that 
contains provisions of 40 CFR 51.448 under the State rules. The EPA is 
not taking any action on a portion of section 114.27(c) that contains 
provisions of 40 CFR 51.448 under the State rules, as discussed in 
detail in section II(B) of this notice. The EPA has evaluated this SIP 
revision and has determined that Texas has fully adopted the provisions 
of the Federal transportation conformity rules in accordance with 40 
CFR Part 51 Subpart T. The appropriate public participation and 
comprehensive interagency consultations have been undertaken during 
development and adoption of these rules by the TNRRC at the local 
level.
    The EPA is publishing this action without prior proposal because 
the EPA views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective on January 8, 1996, unless adverse or critical comments are 
received by December 8, 1995. If the 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 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 January 8, 1996.
    The EPA has reviewed this transportation conformity SIP revision 
for conformance with the provisions of the CAA and has determined that 
this action conforms to those requirements.

IV. Administrative Requirements

A. Regulatory Process

    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 (5 U.S.C. 603 and 604). 
Alternatively, under 5 U.S.C. 605(b), 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.
    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.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
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 

[[Page 56246]]
to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA 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. section 7410(a)(2). The Office of Management and 
Budget has exempted this action from review under Executive Order 
12866.
    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 January 8, 1996. 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)).

B. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this SIP or plan revision approved in this 
action, the State and any affected local or tribal governments have 
elected to adopt the program provided for under section 175A of the 
Clean Air Act. The rules and commitments approved in this action may 
bind State, local, and tribal governments to perform certain actions 
and also require the private sector to perform certain duties. To the 
extent that the rules and commitments being approved by this action 
will impose or lead to the imposition of any mandate upon the State, 
local, or tribal governments, either as the owner or operator of a 
source or as a regulator, or would impose or lead to the imposition of 
any mandate upon the private sector, EPA's action will impose no new 
requirements; such sources are already subject to these requirements 
under State law. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action. 
Therefore, EPA has determined that this final action does not include a 
mandate that may result in estimated costs of $100 million or more to 
State, local, or tribal governments in the aggregate or to the private 
sector.

C. Procedural Information

    This action has been classified as a Table Three action for 
signature by the Regional Administrator under the procedures published 
in the Federal Register on January 19, 1989 (54 FR 2214-2225), as 
revised by a July 10, 1995, memorandum from May Nichols, Assistant 
Administrator for Air and Radiation. The Office of Management and 
Budget has exempted this regulatory action from Executive Order 12866 
review.

D. Executive Order 12866

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the 
EPA must determine whether the regulatory action is ``significant'', 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. It has been determined 
that this rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866, and is therefore not subject to OMB 
review.

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon monoxide, Environmental protection, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Transportation conformity, 
Transportation-air quality planning, Volatile organic compounds.

    Dated: October 20, 1995.
A. Stanley Meiburg,
Acting Regional Administrator.

    Title 40, part 52, of the Code of Federal Regulations is amended to 
read 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

    2. Section 52.2270 is amended by adding paragraph (c)(96) to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (96) A revision to the Texas State Implementation Plan for 
Transportation Conformity: Regulation 30 TAC Chapter 114 ``Control of 
Air Pollution from Motor Vehicles'', Section 114.27 ``Transportation 
Conformity'' as adopted by the Texas Natural Resource Conservation 
Commission (TNRCC) on October 19, 1994, was submitted by the Governor 
on November 6, 1994. No action is taken on a portion of 30 TAC 
114.27(c) that contains provisions of 40 CFR 51.448.
    (i) Incorporation by reference.
    (A) The TNRRC 30 TAC Chapter 114 ``Control of Air Pollution from 
Motor Vehicles'', 114.27 ``Transportation Conformity'' as adopted by 
the TNRCC on October 19, 1994. No action is taken on a portion of 30 
TAC 114.27(c) that contains provisions of 40 CFR 51.448.
    (B) TNRCC order No. 94-40 as passed and approved on October 12, 
1994.
    (ii) Additional material. None.
[FR Doc. 95-27680 Filed 11-7-95; 8:45 am]
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