[Federal Register Volume 66, Number 132 (Tuesday, July 10, 2001)]
[Rules and Regulations]
[Pages 35903-35906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16806]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX 28-1-7382a; FRL-7008-3]


Approval and Promulgation of Implementation Plans; Texas; 
Houston/Galveston Ozone Nonattainment Area Vehicle Miles Traveled 
Offset Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this direct final action, the EPA is approving the Texas 
State Implementation Plan(SIP) for the Houston/Galveston Ozone 
Nonattainment Area (HGA) Vehicle Miles Traveled (VMT) Offset Plan as 
part of the State's effort to attain the National Ambient Air Quality 
Standard (NAAQS) for ozone. The State demonstrated that emissions from 
increases in VMT or numbers of vehicle trips within HGA will not rise 
above an established ceiling by 2007; thereby not requiring additional 
transportation control measure (TCM) offsets to prevent an increase in 
VMT above the ceiling. This action replaces the October 21, 1997 
proposed disapproval of the HGA VMT Offset SIP revision previously 
submitted on August 16, 1994. This action is being taken under sections 
110 and 182 of the Federal Clean Air Act, as amended (the Act).

DATES: This direct final rule is effective on September 10, 2001, 
without further notice, unless EPA receives adverse comment by August 
9, 2001. If significant adverse comment is received, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that the rule will not take effect.

ADDRESSES: Written comments should be mailed to Thomas H. Diggs, Chief, 
Air Planning Section (6PD-L), Environmental Protection Agency, Region 
6, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202-2377. Copies of the 
relevant material for this notice are available for inspection during 
normal business hours at the following locations. Persons interested in 
examining these documents should make an appointment at least 24 hours 
before the visiting day.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Suite 700, Dallas, TX 75202-2377.
    Texas Natural Resource Conservation Commission, 12100 Park 35 
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Brooke M. Ivener, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7362.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

1. Background
2. State Submittals
3. Analysis of 1997 VMT Plan
4. Comments on the Proposed Disapproval Action

    Throughout this document ``we,'' ``us,'' and ``our'' means EPA.

1. Background

What Is a VMT SIP?
    Section 182(d)(1)(A) of the Act requires states containing ozone 
nonattainment areas classified as severe, pursuant to section 181(a) of 
the Act, to adopt transportation control strategies and TCMs to offset 
increases in emissions resulting from growth in VMT or numbers of 
vehicle trips and to obtain reductions in motor vehicle emissions as 
necessary (in combination with other emission reduction requirements) 
to comply with the Act's Reasonable Further Progress milestones 
(section 182(b)(1) and (c)(2)(B)) and attainment demonstration 
requirements (section 182(c)(2)(A)). Our interpretation of section 
182(d)(1)(A) is discussed in the April 16, 1992, General Preamble to 
Title I of the Act (57 FR 13498, the General Preamble). Section 
182(d)(1)(A) of the Act requires that states submit the VMT Offset SIP 
by November 15, 1992, for any severe and above ozone nonattainment 
area. Texas has one severe ozone nonattainment area, the HGA area, with 
an attainment deadline of 2007.

2. State Submittals

Previous Submittals
    On November 13, 1992, the State submitted a committal SIP to EPA 
for VMT Offset for the HGA nonattainment area. The submittal committed 
to submitting subsequent SIPs in 1993 and 1994 to parallel development 
of the 15 percent Rate of Progress (ROP) SIP revision, and to parallel 
the Post 1996 ROP SIP revision and the demonstration of attainment SIP 
revision, both due November 1994. On November 12, 1993, and November 6, 
1994, the State of Texas submitted revisions to the SIP for the VMT 
Offset Plan to fulfill the committal SIP requirement. On October 21, 
1997, EPA proposed disapproval of the 1993 and 1994 VMT Offset SIP 
submittals (62 FR 54598). These submittals were no longer accurate 
since the calculated vehicle emissions relied

[[Page 35904]]

upon programs no longer in effect; specifically, a centralized loaded 
mode vehicle inspection and maintenance 
(I/M) program and an Employer Trip Reduction (ETR) program. A complete 
discussion of the background surrounding program changes is included in 
the above referenced proposed disapproval action.
Current Submittal
    The State subsequently submitted a SIP revision for VMT Offset on 
August 25, 1997. The submittal was determined complete on December 10, 
1997. For information regarding our analysis of the State submittal, 
please refer to the Technical Support Document for this action. On May 
17, 2000, the State submitted to the EPA a new SIP revision for VMT 
Offset. This submittal does not contain any substantive changes and 
does not affect any approval of the revision submitted on August 25, 
1997. The State submitted the revision, which the State adopted on May 
9, 2000, because the VMT Offset SIP references the TCM rules in 30 TAC 
Sec. 114.270, which were reevaluated and renumbered. The discussion of 
the VMT Offset SIP in this rule is therefore still in reference to the 
August 25, 1997 submittal, as it is the substantive SIP revision 
document on which this proposed approval is based.

3. Analysis of 1997 VMT Plan

How Is the VMT Offset Requirement Satisfied?
    The EPA General Preamble (57 FR 13498, 13521-13523, April 16, 1992) 
explains how to demonstrate that the VMT requirement is satisfied. 
Sufficient measures must be adopted so projected motor vehicle volatile 
organic compound (VOC) emissions will stay beneath a ceiling level 
established through modeling of mandated transportation-related 
controls. When growth in VMT and vehicle trips would otherwise cause a 
motor vehicle emissions upturn, this upturn must be prevented by TCMs. 
If projected total motor vehicle emissions during the ozone season in 
one year are not higher than during the previous ozone season due to 
the control measures in the SIP, the VMT Offset requirement is 
satisfied. In order to make these projections, two curves of vehicle 
emissions are modeled (please refer to Graph 1 in the Technical Support 
Document). The upper curve profiles the effects of required reductions 
from the following mandatory programs: a low-enhanced performance 
standard vehicle I/M program, Reid Vapor Pressure (RVP) controls, and 
reformulated gasoline. The lower curve depicts the control strategy 
program and includes the effects not only of the mandated controls, but 
also of the Motorist Choice I/M program and TCMs.
What Does Texas' Demonstration Show?
    The August 25, 1997, VMT SIP submittal includes a projection of the 
mobile source emissions profile for HGA through 2007, the date by which 
the HGA area is to attain the NAAQS for ozone. It also contains an 
upper curve modeled scenario that includes the effects of required 
reductions from the following mandatory programs: a Low-Enhanced 
Performance Standard I/M program, Phase II RVP controls, reformulated 
gasoline, and the Federal Vehicle Control Program (FMVCP) for new 
vehicles, including the Tier I FMVCP standard. The lower curve, which 
depicts the control strategy program, includes the Motorist Choice I/M 
program, Phase II RVP controls, reformulated gasoline, the FMVCP, and 
certain TCMs.
What TCMs Are Part of the VMT Offset SIP?
    The Transportation Policy Council for the HGA Transportation 
Management Area adopted, through resolution on September 29, 1995, TCM 
commitments in the 1996-1997 Transportation Implementation Project and 
the 2020 Metropolitan Transportation Plan. These TCMs were included in 
the 15% ROP Plan and the Post 1996 ROP Plan submitted on July 24, 1996, 
and have been included in the VMT Offset SIP as measurable emission 
reduction credits.
    The TCM commitments for Fiscal Year (FY) 1996 include 14.7 miles of 
High Occupancy Vehicle (HOV) Lanes, 3,745 parking spaces in Park-and-
Ride Lots, 41 miles of Arterial Traffic Management Systems, 22.2 miles 
of Computer Transportation Management Systems, and 2.9 miles of 
signalization.
    Although not credited for the VMT Offset SIP demonstrations, as 
explained below, the TCMs for FY 1999 include 3.2 miles of Accident 
Investigation Sites, 65.8 miles of Arterial Traffic Management Systems, 
262.3 miles of Bicycle Facilities, 70.3 miles of Computer 
Transportation Management Systems, 3.5 miles of HOV lanes, 1643 Park 
and Ride Lot spaces, 49.3 miles of signalization, and 225 Vanpool vans. 
The TCMs for FY 2007 include 30.0 miles of Accident Investigation 
Sites, 1.5 miles of Arterial Traffic Management Systems, and 59.5 miles 
of Computer Transportation Management Systems.
    EPA stated in its comment letter dated June 5, 1997, that any TCMs 
for which Texas takes credit in the VMT SIP should be specifically 
documented on a project-by-project basis. At the time of comment in 
1997, the HGA Metropolitan Planning Organization (MPO) commited to TCM 
reductions on a project category (e.g., HOV lanes) basis, not on a 
project specific basis. Therefore, to resolve the dilemma, no future 
credit is taken in the SIP for any TCMs committed for milestone years 
after November 15, 1996. Thus, the lower curve includes only TCMs 
through FY 1996. A detailed description of the FY 1996 TCM projects and 
the associated implementation, and completion schedules is included in 
an Appendix to the SIP. The EPA gave conditional interim approval of 
these FY 1996 TCMs as part of the 15 percent ROP Plan on November 10, 
1998 (62 FR 62943). It is worth mentioning here that later SIPs have 
included additional TCMs which are not credited. This, in effect, means 
that the VMT Offsets are, in actuality, even greater than accounted for 
here.
Results of the Analysis
    The modeled curves in Graph 1 satisfy the VMT Offset requirement as 
discussed in the General Preamble. Modeling of the lower curve, at no 
time, shows the emission estimates meeting or exceeding the lowest 
point in the upper curve, reached in 2007. The upper curve reaches its 
lowest point in 2007, so no upward turn is demonstrated in this 
instance. The low point establishes the ceiling, but no true ceiling is 
established in this demonstration because there is no upward turn of 
the curve to identify the lowest point. Since the curve does not turn 
upward (indicating the control programs are offsetting increases in 
emission from growth in VMT) no TCMs would be necessary to offset 
emissions from growth in VMT. The State, however, chose to include the 
five FY 1996 TCMs anyway, although they are not necessary.
    The TCMs selected reduce emissions associated with mobile sources 
by relieving congestion, improving traffic flow, and decreasing idle 
time. As required by section 182(d)(1)(A) of the Act, they neither 
impede adequate access to downtown or other commercial and residential 
areas nor increase or relocate emissions and congestion.
    The August 25, 1997 submittal includes all elements required by the 
Act to fulfill the requirements for a VMT Offset Plan in the HGA severe 
ozone nonattainment area. It is worth noting that subsequent to the 
submission of the VMT Offset plan, Texas has submitted additional 
mobile source control

[[Page 35905]]

measures as part of its attainment plan. These include a more extensive 
I/M program and a low emissions diesel requirement. Therefore, if these 
additional control measures were factored in to the analysis, the area 
would be able to demonstrate compliance by a wider margin.

4. Comments on the Proposed Disapproval Action

    Three comments were received in response to the proposed 
disapproval (referenced above) of the 1993 and 1994 submittals which 
comprised the VMT Offset requirement. Two comments supported the 
proposed disapproval because the SIP relied upon the repealed I/M and 
ETR Programs. The SIP submittal being acted upon in this action does 
not rely on those two programs. A third comment supported approval of 
the August 1997 VMT Offset submittal. No other comments were received.

II. Final Action

    The EPA has determined that Texas has adequately demonstrated that 
emissions from growth in VMT and number of vehicle trips will not rise 
above the ceiling. Therefore, we are approving the VMT Offset SIP, 
submitted by the State on August 25, 1997 and with minor revisions 
submitted on May 17, 2000, under sections 110 and 182 of the Act.
    The EPA is publishing this rule without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if adverse comments 
are received. This rule will be effective on September 10, 2001 without 
further notice unless we receive adverse comment by August 9, 2001. If 
EPA receives adverse comments, 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.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
State law, it 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). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This rule will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely approves a State rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. The rule does not involve special 
consideration of environmental justice related issues as required by 
Executive Order 12898 (59 FR 7629, February 16,1994). As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. The EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings' issued under the executive 
order. This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).
    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. 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. 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. 
804(2). This rule will be effective September 10, 2001 unless EPA 
receives adverse written comments by August 9, 2001.
    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 10, 2001. 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) of the Act.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 13, 2001.
Jerry Clifford,
Acting Regional Administrator, Region 6.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

[[Page 35906]]

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

    2. In Sec. 52.2270, paragraph (e), in the table entitled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
Texas SIP,'' one entry is added to the end of the table to read as 
follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                        Applicable           State
      Name of SIP provision           geographic or       submittal/     EPA approval date         Comments
                                    nonattainment area  effective date
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*                  *                  *                  *                  *                  *
                                                        *
Vehicle Miles Traveled Offset      Houston/Galveston        05/09/2000  July 10, 2001, 66    Originally
 Plan.                              Ozone                                FR 35906.            submitted 11/12/93
                                    nonattainment area.                                       and revised 11/06/
                                                                                              94, 8/25/97, and
                                                                                              05/17/00.
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[FR Doc. 01-16806 Filed 7-9-01; 8:45 am]
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