[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51214-51217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24534]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II, Docket No. 152, NY21-1-6732a; FRL-5555-2]


Approval and Promulgation of Implementation Plans; Transportation 
Control Measures, State of New York

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
request submitted on November 15, 1992 by the State of New York to 
revise its ozone state implementation plan (SIP) which addresses the 
need for transportation control measures (TCMs) to offset growth in 
emissions from growth in vehicle miles travelled (VMT) as required by 
the Clean Air Act (Act). New York has indicated that VMT growth will 
not result in increased emissions and, therefore, TCMs are not needed 
for this purpose.

DATES: This action is effective on December 2, 1996 unless adverse or 
critical comments are received by October 31, 1996. If adverse comments 
are received, this notice will be withdrawn in the Federal Register 
prior to the effective date of this rule.

ADDRESSES: All comments should be addressed to: William S. Baker, 
Chief, Air Programs Branch, Air and Waste Management Division, 
Environmental Protection Agency, Region II Office, 290 Broadway, 20th 
Floor, New York, New York 10007-1866
    Copies of New York's submittals are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

[[Page 51215]]

290 Broadway, 20th Floor, New York, New York 10007-1866.
New York Department of Environmental Conservation, 50 Wolf Road, 
Albany, New York 12233-1010
Environmental Protection Agency, Air and Radiation Docket and 
Information Center (MC 6102), 401 M Street, S.W., Washington, D.C. 
20460

FOR FURTHER INFORMATION CONTACT: Linda Kareff, Environmental Protection 
Specialist, Technical Evaluation Section, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 20th Floor, New York, 
New York 10007-1866, (212) 637-4249

SUPPLEMENTARY INFORMATION:

Background

    Section 182(d)(1)(A) of the Clean Air Act Amendments of 1990 
requires states containing ozone nonattainment areas classified as 
``severe'' pursuant to section 181(a) of the Act to adopt 
transportation control measures (TCMs) and transportation strategies to 
offset growth in emissions from growth in vehicle miles travelled (VMT) 
or number of vehicle trips, and to attain reductions in motor vehicle 
emissions (in combination with other emission requirements) as 
necessary to comply with the Act's Reasonable Further Progress (RFP) 
milestone and attainment requirements. The requirements for 
establishing a VMT offset program are discussed in the April 16, 1992 
General Preamble to Title I of the Act (57 FR 13498), in addition to 
section 182(d)(1)(A) of the Act.
    The VMT offset provision requires that states submit by November 
15, 1992 specific enforceable TCMs and strategies to offset any growth 
in emissions from growth in VMT or number of vehicle trips sufficient 
to allow total area emissions to comply with the RFP and attainment 
requirements of the Act.
    EPA has observed that these three elements (i.e., offsetting growth 
in mobile source emissions, attainment of the RFP reduction, and 
attainment of ozone national ambient air quality standards (NAAQS)) 
create a timing problem of which Congress was perhaps not fully aware. 
As discussed in EPA's April 16, 1992 General Preamble to Title I, ozone 
nonattainment areas affected by this provision were not otherwise 
required to submit SIPs that show attainment of the 1996 15% RFP 
milestone until November 15, 1993, and likewise are not required to 
demonstrate post-1996 RFP and attainment of the NAAQS until November 
15, 1994. The SIP demonstrations due on November 15, 1993, and on 
November 15, 1994 are broader in scope than growth in VMT or trips in 
that they necessarily address emission trends and control measures for 
non-motor vehicle emission sources and, in the case of attainment 
demonstrations, complex photochemical modeling studies.
    EPA does not believe that Congress intended the VMT offset 
provision to advance dates for these broader submissions. Further, EPA 
believes that the November 15, 1992 date would not allow sufficient 
time for states to have fully developed specific sets of measures that 
would comply with all of the elements of the VMT offset requirements of 
section 182(d)(1)(A) over the long term. Consequently, EPA believes it 
would be appropriate to interpret the Act to provide the following 
alternative set of staged deadlines for submittal of elements of the 
VMT offset SIP. Under this interpretation, the three required elements 
of section 182(d)(1)(A) are separable, and can be divided into three 
separate submissions on different dates. Section 179(a) of the Act, in 
establishing how EPA would be required to apply mandatory sanctions if 
a state fails to submit a full SIP also provides that the sanctions 
clock starts if a state fails to submit one or more SIP elements, as 
determined by the Administrator. EPA believes that this language 
provides EPA the authority to determine that the different elements of 
a SIP submission are separable. Moreover, given the continued timing 
problems addressed above, EPA believes it is appropriate to allow 
states to separate the VMT offset SIP into three elements, each to be 
submitted at different times: (1) The initial requirement to submit 
TCMs that offset growth in emissions; (2) the requirement to comply 
with the 15% Rate of Progress requirement of the Act; and (3) the 
requirement to comply with the post-1996 periodic reduction and 
attainment of the ozone NAAQS.
    Under this approach, the first element, the emissions offset 
element was due on November 15, 1992. EPA believes this element is not 
necessarily dependent on the development of the other elements. A state 
could submit the emissions growth offset element independent of an 
analysis of that element's consistency with the periodic reduction and 
attainment requirements of the Act. Emissions trends from other sources 
need not be considered to show compliance with the offset requirement. 
As submitting this element in isolation does not implicate the timing 
problems of advancing deadlines for RFP and attainment demonstrations, 
EPA does not believe it is necessary to extend the statutory deadline 
for submittal of the emissions growth offset element.
    The second element, which requires the VMT offset SIP to comply 
with the 15% RFP requirement of the Act was due on November 15, 1993 
which is the same date on which the 15% RFP SIP itself was due under 
section 182(b)(1) of the Act. EPA believes it is reasonable to extend 
the deadline for this VMT offset element from November 15, 1992 to the 
date on which the entire 15% SIP was due, as this allows states to 
develop the comprehensive strategy to address the 15% requirement and 
assure that the TCM elements required under section 182(d)(1)(A) are 
consistent with the remainder of the 15% demonstration. Indeed, EPA 
believes that only upon submittal of the broader 15% plan can a state 
have had the necessary opportunity to coordinate its VMT strategy with 
its 15% plan.
    The third element, which requires the VMT offset SIP to comply with 
the post-1996 RFP and attainment requirements of the Act was due on 
November 15, 1994, the statutory deadline for those broader 
submissions. EPA believes it is reasonable to similarly extend the 
deadline for this VMT element to the date on which the post-1996 RFP 
and attainment SIPs are due for the same reason it is reasonable to 
extend the deadline for the second element. First, it is arguably 
impossible for a state to make the showing required by section 
182(d)(1)(A) for the third element until the broader demonstrations 
have been developed by the State. Moreover, allowing states to develop 
the comprehensive strategy to address post-1996 RFP and attainment by 
providing a fuller opportunity to assure that the TCM elements comply 
with the broader RFP and attainment demonstrations, will result in a 
better program for reducing emissions in the long term.

State Submittal

    On November 15, 1992, the State of New York submitted its ozone SIP 
revision dealing with, in part, whether TCMs are needed to offset 
growth in emissions. The submittal was found to be incomplete and was 
resubmitted with additional information on September 9, 1993. The EPA 
found the SIP complete with the supplemental information on November 5, 
1993. In this submittal, the State has indicated that it does not need 
to submit a revision adopting specific TCMs under the first element of 
the VMT offset requirement because it has determined that it will not 
need to offset growth in emissions from growth in VMT into the next 
century. EPA's independent analysis (included in the technical support 
document) supports this finding and demonstrates that New York will

[[Page 51216]]

not need to offset growth in emissions until at least the year 2007, 
the year New York is required to demonstrate attainment. The second and 
third TCM elements will be addressed in future rulemaking when EPA 
evaluates New York's 15% Rate of Progress requirement to be resubmitted 
by New York and the post-1996 attainment SIP submittals.

Conclusion

    Section 182(d)(1)(A) of the Act requires the State to offset any 
growth in emissions from growth in VMT. As discussed in the General 
Preamble, the purpose is to prevent a growth in motor vehicle emissions 
from canceling out the emission reduction benefits of the federally 
mandated programs in the Act. EPA interprets this provision to require 
that sufficient measures must be adopted so that projected motor 
vehicle volatile organic compound (VOC) emissions will never be higher 
during the ozone season in one year than during the ozone season in the 
year before. When growth in VMT and vehicle trips would otherwise cause 
a vehicle upturn in emissions from motor vehicles, this upturn must be 
prevented. The emissions level at the point of upturn becomes a ceiling 
on motor vehicle emissions. This requirement applies to projected 
emissions in the years between the submission of the SIP revision and 
the attainment demonstrations. The ceiling level is defined, therefore, 
up to the point of upturn, as motor vehicle emissions that would occur 
in the ozone season of that year, with VMT growth, if all measures for 
that area in that year were implemented by the Act. When this curve 
begins to turn up due to growth in VMT or vehicle trips, the ceiling 
becomes a fixed value. The ceiling line would include the effects of 
federal measures such as new motor vehicle standards, phase II Reid 
vapor pressure (RVP) controls, and reformulated gasoline, as well as 
the Act-mandated SIP requirements.
    The State of New York has indicated in its submittal on November 
15, 1992 that the predicted growth in VMT is not expected to result in 
an increase in motor vehicle emissions that will negate the effects of 
the reductions mandated by the Act. Because the current modelling does 
not indicate a need for TCMs to offset growth in emissions before 2007, 
the year New York State is to demonstrate attainment, we are approving 
the part of the ozone state implementation plan that determines that 
New York is not required to adopt specific, enforceable TCMs to meet 
the first element of the offset requirement. EPA is therefore approving 
the New York State SIP revision submittals as satisfying the first of 
the three VMT offset plan requirements. With respect to the second 
element, EPA will address this element when New York's 15% Rate of 
Progress plan is resubmitted to EPA. With respect to the third element, 
New York will periodically be updating its emissions projections as a 
part of its post-1996 RFP and attainment SIPs. Upon review of the 
updated projections, EPA will determine if revised emissions estimates 
have changed creating a necessity for TCMs.
    Nothing in this rule should be construed as permitting or allowing 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to any SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    EPA is publishing this rule without prior proposal because 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. Thus, this direct final action 
will be effective December 2, 1996, unless, by October 31, 1996, 
adverse or critical comments are received.
    If the EPA receives such comments, this rule 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. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this rule should do so 
at this time. If no adverse comments are received, the public is 
advised that this rule will be effective December 2, 1996. (See 47 FR 
27073 and 59 FR 24059).
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., 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, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and Subchapter I, Part D of the 
Clean Air 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 any small entities 
affected. Moreover, due to the nature of the federal-state relationship 
under the Clean Air Act, preparation of a regulatory flexibility 
analysis would constitute federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. US 
EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    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 annual costs of $100 million or more to the private sector, 
or to state, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the state and any affected local or tribal governments have 
elected to adopt the program provided for under section 182(d)(1)(A) of 
the Clean Air Act. These rules 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 being 
approved by this action would impose 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 any mandate upon the private sector, EPA's 
action will impose no new requirements; such sources are already 
subject to these regulations under state law. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector, result from this action. EPA has also determined that 
this direct final action does not include a mandate that may result in 
estimated annual costs of $100 million or more to state, local, or 
tribal governments in the aggregate or to the private sector.
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 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 today's 
Federal Register. This rule is

[[Page 51217]]

not a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this rule must be filed in the United States Court 
of Appeals for the appropriate circuit within 60 days from date of 
publication. 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 rule may not be challenged 
later in proceedings to enforce its requirements. (See 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: July 29, 1996.
William Muszynski,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations 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 HH--New York

    2. Section 52.1683 is amended by adding new paragraph (c) to read 
as follows:


Sec. 52.1683   Control Strategy; Ozone

* * * * *
    (c) EPA approves on December 2, 1996, a request submitted by the 
State of New York to revise its ozone state implementation plan (SIP) 
which addresses the need for transportation control measures (TCMs) to 
offset growth in emissions from growth in vehicle miles travelled (VMT) 
as required by the Clean Air Act (Act). New York has indicated that VMT 
growth will not result in increased emissions and, therefore, TCMs are 
not needed for this purpose.

[FR Doc. 96-24534 Filed 9-30-96; 8:45 am]
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