[Federal Register Volume 66, Number 134 (Thursday, July 12, 2001)]
[Proposed Rules]
[Pages 36542-36547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17471]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-126-4-7475; FRL-7011-5]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Texas: Low Emission Diesel Fuel

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to fully approve a State Implementation 
Plan (SIP) revision for the State of Texas establishing a Low Emission 
Diesel (LED) fuel for the eastern half of the State. A portion of this 
revision was recently proposed by the State. EPA's proposal to approve 
is taken under section 110 of the Clean Air Act (the Act). This 
approval is also being proposed under the ``parallel processing'' 
provision of 40 CFR part 51. If there are significant changes between 
the version of the LED rule which is being ``parallel processed'' and 
the version of the LED rule which Texas finally adopts, the EPA will 
propose a new rulemaking. If there are no significant changes to the 
``parallel-processed'' version, the EPA will proceed with final 
rulemaking on the version finally adopted by Texas and submitted to the 
EPA. Beginning April 1, 2005, aromatic hydrocarbon content, cetane 
number and sulfur content will be regulated for diesel fuel sold in 110 
counties in eastern Texas for use in both motor vehicles and nonroad 
engines. We propose that the Texas LED fuel program requirements are 
necessary to achieve the National Ambient Air Quality Standard (NAAQS) 
for ozone in the Houston-Galveston (HGA) ozone nonattainment area, and 
are therefore exempt from preemption under Section 211(c)(4)(C) of the 
Clean Air Act (the Act).

DATES: Comments should be received on or before August 13, 2001.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section, at the EPA Regional 
Office listed below. Copies of the documents relevant to this action 
are available for public inspection during normal business hours at the 
following locations.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-
L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, 
Austin, Texas 78711-3087. Persons interested in examining these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Sandra Rennie, Air Planning Section 
(6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, 
telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refers to EPA.
    The Governor of Texas submitted an attainment demonstration SIP for 
the HGA 8-county nonattainment area on December 20, 2000. The SIP 
contained measures for reducing Nitrogen Oxides ( NOX), the 
pollutant identified as controlling the formation of ozone in this 
area. The LED fuel program was submitted as part of the attainment 
demonstration. This LED rule was codified in Chapter 114 of the Texas 
Administrative Code (TAC)(sections 114.6, 114.312-114.317 and 114.319, 
December 6, 2000).
    Numerous changes to State air pollution control laws occurred 
during Texas' 77th legislative session. One of these changes relates to 
the LED program. House Bill 2912 limits the State's authority to 
regulate fuel content. Unless the Governor vetoes the Bill by June 17, 
2001, it will become law. The Bill bans the establishment of fuel 
control measures more stringent than EPA's between September 1, 2000 
and January 1, 2004. The Bill specifically authorizes the LED program, 
but mandates that implementation be delayed until February 1, 2005. 
Finally, this Bill allows refiners flexibility in complying with the 
LED requirements. In anticipation of this legislation, the Texas 
Natural Resource Conservation Commission (TNRCC) proposed amendments to 
the LED rule on May 10, 2001.
    In a letter to EPA dated June 15, 2001, the Governor requested 
``parallel processing'' of the LED regulations with the proposed 
amendments, which reduce the covered area, change the implementation 
date, and add a new section providing for an alternative means of 
compliance. See 30 TAC 114.314, 114.318, 114.319 (May 10, 2001). In 
today's action, we are proposing approval of the LED regulations with 
the proposed amendments as they apply to the HGA, Beaumont-Port Arthur, 
and Dallas Fort Worth nonattainment area counties as well as 95 
attainment counties in east Texas.

What Does the State's LED Regulation Include?

    The State's LED SIP submittal for the HGA non-attainment area 
requires that diesel fuel produced for delivery and ultimate sale 
within the affected counties have a maximum sulfur content of 500 ppm, 
have no more than 10% aromatic hydrocarbons by volume, and have a 
cetane number of 48 or greater. Alternative diesel fuel formulations 
that achieve equivalent emission reductions may also be used.
    The regulations apply to diesel fuel sold in the HGA nonattainment 
counties of Harris, Galveston, Brazoria, Fort Bend, Montgomery, 
Liberty, Chambers, and Waller; Beaumont-Port Arthur nonattainment 
counties of Jefferson, Orange and Hardin; and Dallas-Fort Worth 
nonattainment counties of Dallas, Tarrant, Collin, and Denton; as well 
as 95 attainment counties in East Texas including Anderson, Angelina, 
Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, 
Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, 
Comal, Cooke, Coryell, De Witt, Delta, Ellis, Falls, Fannin, Fayette, 
Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, 
Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, 
Hunt, Jackson, Jasper, Johnson, Karnes, Kaufman, Lamar, Lavaca, Lee, 
Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, 
Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Parker, Polk, 
Rains, Red River, Refugio, Robertson, Rockwall, Rusk, Sabine, San 
Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, 
Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, 
Washington, Wharton, Williamson, Wilson, Wise, and Wood Counties in the 
attainment area.
    The State regulations require compliance with the cetane, aromatic 
hydrocarbon, and 500 ppm sulfur components by April 1, 2005. Starting 
June 1, 2006, the sulfur level shall be reduced to 15 ppm.

[[Page 36543]]

What Are the Requirements of the Clean Air Act?

    Section 211(c)(4)(A) of the Act generally prohibits the State from 
prescribing or attempting to enforce controls respecting motor vehicle 
fuel characteristics or components that EPA has controlled under 
section 211(c)(1), unless the State control is identical to the Federal 
control. Under section 211(c)(4)(C), EPA may approve a non-identical 
state fuel control as a SIP provision, if the state demonstrates that 
the measure is necessary to achieve the NAAQS. We may approve a state 
fuel requirement as necessary if no other measures would bring about 
timely attainment, or if other measures exist and are technically 
possible to implement but are unreasonable or impracticable.
    In this rulemaking, EPA does not need to determine whether the 
State requirements for LED fuel used in motor vehicles are preempted 
under section 211(c)(4)(A) before acting to approve the SIP submittal 
because EPA is finding the fuel requirements necessary under section 
211(c)(4)(C) to achieve the ozone standard in the HGA nonattainment 
area.

What Did the State Submit?

    The State submitted the LED rules as part of the HGA attainment 
demonstration SIP by letter from the Governor dated December 20, 2000. 
The SIP submittal contains 30 TAC Chapter 114 rules as adopted on 
December 6, 2000, a request for a waiver from Federal preemption 
pursuant to section 211(c)(4)(C) of the Act, and Texas laws providing 
the authority for the State to adopt and implement revisions to the 
SIP. The State also submitted a request to ``parallel process'' 
revisions to the LED rules in a letter from the Governor dated June 15, 
2001. These revisions were proposed by the State on May 10, 2001.
    Texas previously submitted a waiver request and EPA proposed 
approval of LED rules for nine counties in the DFW Consolidated 
Metropolitan Statistical area (66 FR 20415, April 23, 2001). For the 
HGA nonattainment area, Texas submitted data and analyses to support a 
finding under section 211(c)(4)(C) that the LED fuel requirement for 
the affected counties is necessary for the HGA nonattainment area to 
achieve the ozone NAAQS. The State has (1) identified the quantity of 
reductions of NOX needed to achieve attainment of the ozone 
NAAQS; (2) identified all other control measures and the quantity of 
reductions each would achieve; (3) identified those control 
alternatives that were deemed unreasonable or impracticable; and (4) 
shown that even with the implementation of all reasonable and 
practicable control measures, the State would need additional emissions 
reductions for the nonattainment area to meet the ozone NAAQS on a 
timely basis, and that the LED fuel requirement would supply some of 
such additional reductions.
    Texas submitted its demonstration of necessity for the LED fuel 
requirement in the State's attainment demonstration for the HGA 
nonattainment area. The State's submission used photochemical modeling 
to estimate the quantity of NOX emission reductions 
necessary to achieve the ozone NAAQS by 2007. Based on this analysis, 
Texas estimates that NOX reductions of 977.07 tons per day 
(tpd) are necessary to achieve the ozone NAAQS by 2007. Without the LED 
requirements for the affected counties in the HGA, BPA, and DFW 
nonattainment areas and the named attainment counties (the ``covered 
area''), implementation of the reasonable and practicable non-fuel 
control measures would reduce NOX emissions by only 918.53 
tpd.

What are the Benefits From the LED Fuel Program?

    The primary benefit of LED fuel in the HGA attainment demonstration 
is reduction of NOX emissions. Without the proposed fuel 
controls, the area subject to the proposed fuel control would receive 
diesel fuel for nonroad use that is subject to no federal emissions-
related standards or diesel fuel for on-highway use that meets the less 
stringent, current Federal standards.
    Texas is controlling three components of diesel fuel for on-highway 
vehicles: aromatic hydrocarbons, cetane number and sulfur. The State's 
sulfur standard, however, is the same as the current Federal 
requirement for diesel fuel used in motor vehicles. Texas estimated 
that the 10% cap on aromatic hydrocarbons reduces NOX from 
diesel combustion. The cetane number is an indication of ignition 
properties of the fuel. A fuel with better ignition properties will 
ignite at a lower heat of compression, thereby reducing the amount of 
NOX produced during combustion.
    For nonroad engines, Texas' sulfur content standards will provide 
additional emissions reductions. There is no direct NOX 
benefit from controlling sulfur in fuel. However, the State is 
including the sulfur requirement for nonroad engines because lower 
sulfur levels prevent fouling of after-treatment NOX 
emission control devices that may be installed on nonroad diesel 
equipment. The State does not need a waiver of preemption for fuel 
components of nonroad diesel fuel because section 211(c)(4)(A) applies 
only to State controls respecting motor vehicle (i.e., on-highway) fuel 
characteristics or components. In addition, there are no Federal 
requirements promulgated under section 211(c)(1) for characteristics or 
components of nonroad diesel fuel.
    EPA recently reviewed and analyzed all available data on the 
emission reduction effects of low emission diesel fuels. The final 
outcome of this evaluation may or may not suggest a need to reconsider 
the emission reduction estimates used by the State for its LED rule. If 
the final results of EPA's evaluation indicate that Texas has 
incorrectly estimated the emission reductions attributable to the LED 
rule, then EPA will work with the State to adjust the emissions benefit 
as necessary.

What Other Measures Did Texas Consider Before Selecting LED?

    The State evaluated a broad range of potential control measures and 
estimated the quantity of reductions that could be achieved through 
implementation of these measures. Over two hundred potential control 
strategies were initially considered by the State and HGA regional 
stakeholders as part of the planning process. This list is included in 
Appendix L of the HGA Attainment SIP (December 2000). The measures that 
were selected for the attainment demonstration are in Table 1.

  Table 1.--State and Local Control Measures \1\ in the HGA Attainment
                              Demonstration
------------------------------------------------------------------------
                                                                 NOX
                          Measure                            reductions
                                                               in tpd
------------------------------------------------------------------------
Major Point Source NOX reductions (overall NOX reductions         595
 of 89% from 1997 baseline) in 8 counties.................
Vehicle Inspection and Maintenance (ASM, OBD, and remote           36.2
 sensing) in 8 counties...................................
Heavy-duty diesel operating restrictions \2\ (also called           6.7
 the ``Construction shift'') in 5 urbanized counties......

[[Page 36544]]

 
Clean Diesel Fuel (subject of this action) in 110 counties          6.67
 on-highway + nonroad.....................................
Small, Spark-Ignition Engine Operating Restrictions in 5            4.6
 urbanized counties.......................................
Voluntary Mobile Emission Reduction in 8 counties.........         23
Accelerated Purchase of Tier 2/Tier 3 Diesel Equipment             12.20
 (See footnote 2) in 8 counties...........................
Speed Limit Reduction in 8 counties.......................         12.33
Airport Ground Support Equipment Electrification in 8               5.09
 counties.................................................
California Spark-Ignition Engines statewide...............          2.80
Internal Combustion Engine--Oil category (stationary                1.0
 diesel engines in 8 counties)............................
Vehicle Idling Restrictions in 8 counties.................          0.48
Gas-fired water heaters, small boilers, and process                 0.5
 heaters statewide........................................
Transportation Control Measures in 8 counties.............          1.06 
------------------------------------------------------------------------
\1\ The attainment demonstration includes additional NOX reductions from
  Federal measures.
\2\ The 77th Texas Legislature passed a law requiring the TNRCC to
  submit, by October 1, 2001, a revision to the SIP that deletes the
  requirements of the ``construction shift'' and the early purchase of
  Tier 2 and Tier 3 equipment. The commission must include with the
  revision a report on the effectiveness of the Texas emissions
  reduction plan in delivering emissions reductions to the degree
  sufficient to replace the requirements of the construction shift and
  the early purchase of Tier 2 and Tier 3 equipment. For the purposes of
  this approval, we still include these measures in our analysis because
  we have not received this SIP revision. Even if these measures were
  implemented, there would still be a NOX shortfall.

    The State adopted some controls for implementation within only a 
portion of the nonattainment area. Heavy-duty diesel operating 
restrictions and Small, Spark-Ignition Engine Operating Restrictions 
are applicable to the five (5) urbanized counties of the nonattainment 
area. All 8 counties were not included because the State decided that 
it was impracticable to implement these rules beyond the five (5) 
urbanized counties of the HGA nonattainment area. Recent State 
legislation, if signed, would require the State to submit a SIP 
revision removing the Construction Shift rule and Accelerated Tier 2/
Tier 3 Purchase from State regulations. (See footnote 2)
    Expanding LED and several other measures beyond the HGA 
nonattainment area can be justified, but other controls beyond the 8 
county nonattainment area were considered unreasonable or impracticable 
by the State, and we concur.
    Major Point Source NOX reductions: Major point source 
NOX reductions are mandated only for the 8 county area 
because NOX controls for those sources in the attainment 
areas are mandated by other rules. These rules are NOX 
reductions of 30% for grandfathered sources, 50% reductions for 
grandfathered Electric Generating Facilities, and 30% reductions for 
Cement Kilns. Therefore the extreme cost of adding additional controls 
does not justify the relatively small benefit that would result.
    Vehicle Inspection and Maintenance: This measure is not reasonable 
or practicable to implement in rural attainment counties of East Texas 
because changes in state law would be required, and the time required 
to seek such changes and implement them make the success of such a 
measure unpredictable. The State has no legislative authority to 
mandate this program. The Legislature provides the authority for 
counties to voluntarily opt in to I/M. In addition, the cost for small 
business, which would conduct the testing, is prohibitive based on the 
number of tests that would be conducted in rural areas in comparison to 
an urban area.
    Voluntary Mobile Emission Reductions: This EPA policy provides 
States flexibility in designing SIPs to meet the NAAQS. The policy 
contemplates that up to 3% of the total needed emission reductions that 
can be included in this category. Reasonable and practicable VMEP 
programs totaling 3% have already been set up within nonattainment 
counties. A further expansion of this program would be inconsistent 
with this policy.
    Speed Limit Reduction: The reduced speed limit measure is based on 
vehicle emission information from EPA's MOBILE5 model. There is not a 
significant amount of vehicle miles traveled and ample fleet size in 
the attainment counties to justify expanding this measure beyond the 8-
county area.
    Airport Ground Support Equipment Electrification: It is not 
necessary (or reasonable) to impose airport GSE electrification in the 
attainment counties because there are no major airports in those 
counties.
    Internal Combustion Engine--Oil category (stationary diesel 
engines): The restrictions are designed to reduce unnecessary 
NOX emissions in the nonattainment area. It is neither 
reasonable nor practicable to implement this type of restriction in 
rural, low density counties of the attainment area.
    Vehicle Idling Restrictions: The restrictions are designed to 
reduce unnecessary vehicle exhaust in congested, nonattainment areas. 
It is neither reasonable nor practicable to implement this type of 
restriction in rural, low density counties of the attainment area.
    Transportation Control Measures: A TCM is a project that attempts 
to reduce vehicle use, change traffic flow, or reduce congestion 
conditions. Due to the semi-rural nature of the attainment counties, 
reducing vehicle use is not a viable option in this lower population 
density area. Generally traffic flow is satisfactory and congestion is 
not an issue. Therefore, implementing TCMs is not reasonable or 
practicable in the attainment counties.

What Measures Were Considered But Not Selected?

    Measures that were quantified but not selected for the SIP are 
listed in Tables 2 and 3. They fall into two categories: (1) direct 
NOX reductions, and (2) VOC reductions that can be 
substituted for NOX as achieving equivalent ozone 
reductions. VOC reduction substitutes for NOX that produced 
less than one ton of equivalent NOX reductions of ozone were 
rejected. (See the TSD for a more detailed discussion of these 
measures.) In each case the tons per day available for control were 
below the 1 ton per day NOX equivalent reduction of ozone 
and were therefore rejected as unreasonable or impracticable due to the 
high cost of implementing VOC controls as NOX controls.

[[Page 36545]]



     Table 2.--VOC Measures Quantified But Not Selected for the SIP
------------------------------------------------------------------------
                                                             TPD of VOC
                          Measure                             available
                                                             for control
------------------------------------------------------------------------
Area/Nonroad Sources (consumer & commercial products;                2
 architectural coatings; vehicle refueling; graphic arts;
 oil and gas; vehicle refinishing)........................
Chemical manufacturing....................................           6
Petroleum refining........................................           5
VOC Storage...............................................           1.1
------------------------------------------------------------------------

    In conducting the point source analysis on reasonably available 
NOX control measures, the State discovered one category of 
sources that may warrant additional controls to meet the RACM 
threshold. This is the Internal Combustion Engine--Oil category 
(stationary diesel engines). This category is estimated to produce 
reductions of about 1 tpd of NOX. On May 10, 2001, the State 
proposed controls on this category of sources. This measure has been 
submitted along with a request for ``parallel processing'' and is the 
subject of a separate rulemaking. Even assuming the reductions from 
implementation of this measure, the LED program is still necessary for 
the attainment of the NAAQS.
    Of the NOX control measures initially considered, there 
were relatively few that were rejected as unreasonable or impracticable 
due to either economic or technological infeasibility. In addition 
there was another small cluster of measures about which there was 
insufficient information to make a determination. Table 3 lists the 
other rejected measures.

       Table 3.--NOX Measures Deemed Unreasonable or Impracticable
------------------------------------------------------------------------
                                              TPD of NOX available for
                  Measure                              control
------------------------------------------------------------------------
Gas tax increase (gear to Consumer Price    Unknown.
 Index).
Emission-based registration fees..........  Unknown.
Drive-through restrictions................  Unknown.
Drive restrictions (time of day or          Unknown.
 alternate days restriction).
Drive restrictions (by geographic area)...  Unknown.
Shuttle for hire (clean-fueled)...........  Unknown.
Restrictions on the use of agricultural     Unknown.
 equipment by day/week/season.
Other measures (insufficient information).  Unknown.
------------------------------------------------------------------------

    Of the control measures identified above, for purposes of section 
211(c)(4)(C), all measures in Tables 2 and 3 are considered 
unreasonable or impracticable for the HGA nonattainment area to 
implement at this time in comparison to the State's LED requirement. 
(See the TSD for a more detailed discussion.)
    Based on the discussion above, we propose to find that reasonable 
or practicable non-fuel measures which would bring the HGA 
nonattainment area into attainment in a timely manner do not exist.

How Does Requiring LED Fuel in the Covered Area Benefit the HGA 
Nonattainment Area?

    Requiring LED fuel in the covered area will reduce emissions of 
NOX in the HGA nonattainment area by ensuring that the fuel 
used by intrastate fleets and long-haul truckers that transit the area 
but purchase fuel in Texas outside the nonattainment area but within 
the covered area meets the required fuel characteristics for lowering 
NOX.
    Requiring LED in the covered area which surrounds the HGA 
nonattainment area will reduce emissions of NOX in those 
areas, which, in turn, benefits the HGA nonattainment area by reducing 
the transport of ozone and NOX from the surrounding covered 
area to the nonattainment area.

The LED Fuel Program Will Reduce the Possible Transport of Ozone From 
the Surrounding Covered Areas to the Nonattainment Area

    Transport into the HGA nonattainment area is not considered a major 
contributor of ozone, but with the State implementing every ozone 
reduction measure in the HGA nonattainment area that has ever been 
implemented elsewhere in the nation, the State is counting on every 
possible benefit. The Coastal Oxidant Assessment for Southeast Texas 
(COAST) Study documented the on-shore/off-shore phenomenon called flow 
reversal. This coastal phenomenon has its influence inland at least 50 
km, and perhaps as far as 400 km, easily reaching into the attainment 
areas surrounding the HGA area.
    In the COAST Study, researchers collected aerometric 
(meteorological and air quality) data to improve understanding of the 
causes of high ozone in Southeast Texas. This data was then used in 
conjunction with photochemical modeling to determine control strategy 
effectiveness including the sensitivity of ozone concentrations in the 
nonattainment areas to emission reductions in the attainment region. 
This sensitivity modeling indicated there was an influence of emission 
reductions in the attainment areas on the nonattainment areas.

The LED Fuel Program Will Reduce the Transport of NOX From 
the Surrounding Covered Areas to the Nonattainment Area

    EPA policy recognizes that ozone precursors emitted in attainment 
areas that surround nonattainment areas may be transported into those 
nonattainment areas and contribute to ozone problems therein. With the 
December 29, 1997, Guidance for Implementing 1-Hour Ozone and Pre-
Existing PM10 NAAQS, EPA recognized that both VOCs and NOX 
outside the nonattainment areas at 100 km and 200 km respectively could 
influence the nonattainment area. We allowed taking credit from sources 
within these areas of influence in the 9 percent Rate of Progress 
Plans. The fact that NOX influence has been shown to be 
meaningful within 200 km of a nonattainment area supports Texas' 
justification for controlling the components of diesel fuel in many of 
the attainment areas surrounding the HGA nonattainment area. We believe 
it is appropriate to conclude that NOX emission reductions 
within this area will benefit the nonattainment area.

Is the LED Fuel Program Necessary To Achieve the NAAQS?

    Without the LED program, implementation of all reasonable and 
practicable non-fuel control measures would reduce NOX 
emissions by only 918.53 tpd. An additional 52 tpd of NOX 
emissions reductions is necessary for the HGA nonattainment area to 
achieve timely attainment of the ozone NAAQS. The LED fuel program will 
supply additional reductions needed for the HGA area to demonstrate 
attainment. Therefore, we propose to find the LED fuel requirements for 
the HGA, BPA, and DFW nonattainment counties and 95 attainment counties 
in East Texas necessary to achieve timely attainment of the ozone NAAQS 
in the HGA nonattainment area. This satisfies the

[[Page 36546]]

requirement of necessity in section 211(c)(4)(C).

Does the State Submittal Meet the SIP Approval Requirements Under 
Section 110?

    The LED fuel control program meets the requirements outlined in 
section 110. Texas submitted the fuel portion of the HGA attainment SIP 
under a Governor's letter December 20, 2000. In a letter dated June 15, 
2001, the Governor requested ``parallel processing'' of proposed 
revisions to the LED rules which were proposed for public comment on 
May 10, 2001. The submittals contain the appropriate hearing actions, a 
preamble, and the LED fuel rules.

How Will the Program Be Enforced?

    The TNRCC will implement the LED fuel rule. Anyone, including 
producers and importers, who sells, offers for sale, supplies, or 
offers for supply to affected counties the LED fuel are subject to 
provisions of this rule. Registration, recordkeeping, reporting, and 
certification requirements are included. This rule will be enforced in 
the same way as other regulations implemented by the State. State law 
allows collection of administrative penalties up to $10,000 per day and 
civil penalties up to $25,000 per day for violations of air quality 
regulations. See Vernon's Texas Statutes & Codes, Annotated (VTCA) 
Water Code, sections 7.002, and 7.051. The State may also seek 
injunctive relief under section 7.032 of the Water Code.

Why Are We ``Parallel Processing'' and How Does It Work?

    Because of the urgency associated with the October 15, 2001, 
approval deadline imposed by a consent decree order affecting, among 
others, the Houston Attainment SIP (Natural Resources Defense Council 
v. Browner, Civ No. 99-2976, November 30, 1999), Texas requested that 
EPA proceed with an expedited decision process for this revision to the 
SIP. Therefore, approval of this revision is being proposed under a 
procedure called ``parallel processing'', whereby EPA proposes 
rulemaking action concurrently with the State's procedures for 
approving a SIP submittal and amending its regulations (40 CFR part 51, 
appendix V, 2.3). If the State's proposed revision is substantially 
changed in areas other than those identified in this document, EPA will 
evaluate those changes and may publish another notice of proposed 
rulemaking. If no substantial changes are made, EPA will publish a 
final rulemaking on the revisions after responding to any submitted 
comments. Final rulemaking action by EPA will occur only after the SIP 
revision has been fully adopted by Texas and submitted formally to EPA 
for incorporation into the SIP. In addition, any action by the State 
resulting in undue delay in the adoption of the rules may result in a 
re-proposal, altering the approvability of the SIP.

What Is Proposed?

    We are proposing to approve rules establishing a LED fuel 
requirement for all diesel fuel sold in the HGA, DFW, and BPA 
nonattainment counties plus 95 attainment counties of East Texas 
beginning in 2005. We are also proposing to find, under section 
211(c)(4)(C), that the State has demonstrated the fuel measure is 
necessary for attainment of the NAAQS and that no other measures exist 
which would bring about timely attainment, or if such measures exist, 
they are not reasonable or practicable.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to the State Implementation Plan shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed 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 proposed 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 proposes to approve 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 proposed rule also 
does not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This proposed 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 Clean 
Air Act. This proposed 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 Clean Air 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 Clean Air 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 proposed 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 proposed 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.'' This 
proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and

[[Page 36547]]

recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: July 2, 2001.
Jerry Clifford,
Acting Regional Administrator, Region 6.
[FR Doc. 01-17471 Filed 7-11-01; 8:45 am]
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