[Federal Register Volume 66, Number 220 (Wednesday, November 14, 2001)]
[Rules and Regulations]
[Pages 57223-57230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27583]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-133-1-7493; FRL-7092-8]


Approval and Promulgation of Implementation Plans; Texas; Lawn 
Service Equipment Operating Restrictions; and Requirements for Motor 
Vehicle Idling for the Houston/Galveston (HG) Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to the Texas State 
Implementation Plan. This approval covers two separate actions. We are 
approving: a rule that implements an operating-use restriction program 
requiring that the handheld and non-handheld spark-ignition engines, 
rated at 25 hp and below, be restricted from use by commercial 
operators between the hours of 6 a.m. and noon, April 1 through October 
31, in the counties Brazoria, Fort Bend, Galveston, Harris, and 
Montgomery; and, a rule to implement idling limits for gasoline and 
diesel-powered engines in heavy-duty motor vehicles in the HG area 
counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, 
Montgomery, and Waller. The EPA is approving these revisions to the 
Texas SIP to regulate emissions of nitrogen oxides ( NOX) 
and volatile organic compounds (VOC) in accordance with the 
requirements of the Federal Clean Air Act (the Act). These new rules 
will contribute to attainment of the National Ambient Air Quality 
Standard (NAAQS) for ozone standard in the HG ozone nonattainment area. 
For details on the SIP submittals and the EPA analysis of the 
submittals, refer to the June 11, 2001 proposed rule, and the 
associated Technical Support Document (TSD).

DATES: This final rule is effective on December 14, 2001.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the Environmental 
Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross 
Avenue, Dallas, Texas 75202-2733; and, the Texas Natural Resource 
Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Steven Pratt, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number 
(214) 665-2140, e-Mail Address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refers to EPA.

What Action Are We Taking Today?

    On December 20, 2000, the Governor of Texas submitted to EPA these 
two rule revisions (an operating-use restriction program for handheld 
and non-handheld spark-ignition engines, rated at 25 hp and below, used 
by commercial operators; and, idling limits for gasoline and diesel-
powered engines in heavy-duty motor vehicles) to the 30 TAC, Chapter 
114, ``Control of Air Pollution From Motor Vehicles,'' as a revision to 
the SIP.
    These new rules will contribute to attainment of the ozone standard 
in the HG area. The EPA is approving these revisions to the Texas SIP 
to regulate emissions of NOX and VOCs in accordance with the 
requirements of the Federal Clean Air Act (the Act). For more 
information on the SIP revision, please refer to our TSD and the 
State's December 20, 2000 SIP revision.

What Are the Clean Air Act Requirements?

    Section 172 of the Act provides the general requirements for 
nonattainment plans. Section 172(c)(6) and section 110 require SIPs to 
include enforceable emission limitations, and such other control 
measures, means or techniques as well as schedules and timetables for 
compliance, as may be necessary to provide for attainment by the 
applicable attainment date. Today's SIP revision involves approval of 
one of a collection of controls adopted by the State to achieve the 
ozone standard in the HG nonattainment area as required under section 
172. EPA approval of this SIP revision is governed by section 110 of 
the Act.

Why Is EPA Taking This Action?

    We are taking this action because the State submitted an adequate 
demonstration to show the necessity for these requirements to achieve 
the NAAQS in the HG ozone nonattainment area.

What Are the Requirements of the December 20, 2000, Texas SIP 
Revision for the Operation of Lawn Service Equipment That We Are 
Approving Today?

    The purpose of this rule is to implement an operating-use 
restriction program requiring that the handheld and non-handheld spark-
ignition engines, rated at 25 hp and below, be restricted from use by 
commercial operators between the hours of 6:00 a.m. and noon, April 1 
through October 31. Spark-ignition lawn and garden service handheld 
equipment includes, but is not limited to, trimmers, edgers, chain 
saws, leaf blowers/vacuums, and shredders. Spark-ignition lawn and 
garden service non-handheld lawn and garden equipment covered by the 
rules includes such devices as walk-behind lawnmowers, lawn tractors, 
tillers, and small generators. The engines are both two cycle and four 
cycle engines, generally unable to use automotive technology, such as 
closed-loop engine control and three-way catalysts, to reduce 
emissions.
    As a result of this restriction, production of ozone precursors 
will be stalled until later in the day when optimum ozone formation 
conditions no longer exist, ultimately reducing the peak level of ozone 
produced. It is estimated that this measure will achieve a minimum of 
0.23 tons per day (tpd)

[[Page 57224]]

delay of NOX until after noon. There will also be a 12.4 tpd 
delay in VOC emissions until after noon. Because the emission of 
NOX and VOC, both precursors to the formation of ozone, will 
be delayed until after noon, this delay will lead to a reduction in 
ozone that is equivalent to that which would result from approximately 
4.6 tpd of NOX reduction.
    The Texas regulation allows operators to submit an alternate 
emissions reduction plan by May 31, 2003. The alternate plan would 
allow operation during the restricted hours, provided the plan achieves 
reductions of NOX and VOCs that would result in ozone 
benefits equivalent to the underlying regulation.
    The regulation exempts from the restriction use at a domestic 
residence by the owner of, or a resident at, that domestic residence, 
use by a non-commercial operator, or any equipment used exclusively for 
emergency operations to protect human health and safety or the 
environment, including equipment being used in the repair of 
facilities, devices, systems, or infrastructure that have failed, or 
are in danger of failing, in order to prevent immediate harm to public 
health, safety, or the environment.
    The affected area includes the following counties within the HG 
nonattainment area: Brazoria, Fort Bend, Galveston, Harris, and 
Montgomery. The restrictions applicable to this Texas regulation will 
take effect April 1, 2005.

What Are the Requirements of the December 20, 2000, Texas SIP 
Revision for Restricting Motor Vehicle Idling?

    The purpose of this rule is to establish idling limits for gasoline 
and diesel-powered engines in heavy-duty motor vehicles in the HG area. 
The rule defines heavy-duty motor vehicles as those motor vehicles that 
have a gross vehicle weight rating (GVWR) of greater than 14,000 
pounds. To comply with the motor vehicle idling regulations, no person 
in the affected counties may cause, suffer, allow, or permit the 
primary propulsion engine of a heavy-duty motor vehicle to idle for 
more than five consecutive minutes when the vehicle is not in motion 
during the time period April 1 through October 31.
    These idling limits will lower NOX emissions and other 
pollutants from fuel combustion. Because NOX is a precursor 
to ground-level ozone formation, reduced emissions of NOX 
will result in ground-level ozone reductions. It is estimated that this 
measure will achieve a minimum of 0.48 tpd of NOX equivalent 
reductions.
    The Texas regulation allows the following exemptions: covered 
vehicles that are forced to remain motionless because of traffic 
conditions over which the operator has no control; vehicles being used 
as an emergency or law enforcement motor vehicle; when the engine of a 
covered motor vehicle is being operated for maintenance or diagnostic 
purposes; when the engine of a covered motor vehicle is being operated 
solely to defrost a windshield; when the covered vehicle is being 
operated to provide a power source necessary for mechanical operation 
other than propulsion, passenger compartment heating, or air 
conditioning; where the primary propulsion engine of a covered vehicle 
is being operated to supply heat or air conditioning necessary for 
passenger comfort/safety in those vehicles intended for commercial 
passenger transportation or school buses, in which case idling up to a 
maximum of 30 minutes is allowed; where the primary propulsion engine 
of a covered vehicle is being used for transit operations, in which 
case idling up to a maximum of 30 minutes is allowed; and where the 
primary propulsion engine of a vehicle is being used in airport ground 
support equipment. The exemption for ground service equipment is 
intended to cover all equipment that is used to service aircraft during 
passenger and/or cargo loading and unloading, maintenance, and other 
ground-based operations.
    The affected area includes the following counties within the HG 
nonattainment area: Brazoria, Chambers, Fort Bend, Galveston, Harris, 
Liberty, Montgomery, and Waller. The restrictions applicable to this 
Texas regulation took effect April 1, 2001. This control strategy is a 
necessary measure to consider for contributing to a successful 
attainment demonstration with the NAAQS for ozone.
    The TNRCC has proposed revisions to the idling restriction rule. 
The changes clarify that the operator of a rented or leased vehicle is 
responsible for compliance with the requirements in situations where 
the operator of a leased or rented vehicle is not employed by the owner 
of the vehicle. Our preliminary review indicates that the changes do 
not weaken the rule, but merely clarify enforcement provisions. Should 
a SIP revision be submitted incorporating these changes, the EPA may 
publish a revision to this rule.

What Comments Did EPA Receive in Response to the June 11, 2001, 
Proposed Approval of These Rules?

A. Comments Received in Response to the Lawn Service Operating 
Restrictions Rule

    Five sets of comments were received on this portion of the June 11, 
2001 (66 FR 31197), proposed approval. Comments were received from the 
Engine Manufacturer's Association (EMA), the Toro Company (Toro), the 
Business Coalition for Clean Air (BCCA), the Outdoor Power Equipment 
Institute (OPEI), and Jeri Yenne on behalf of Brazoria, Fort Bend and 
Montgomery counties in Texas (Counties). Each of these comments were in 
opposition to the operating-use restriction.
    Comment 1: EMA, BCCA, OPEI and Toro each comment that the 
operating-use restriction is a requirement relating to the control of 
emissions from non-road engines and thus preempted under section 209(e) 
of the Clean Air Act. These commenters point to a recent holding from 
the U.S. District Court for the Western District which overturned a 
State use-restriction on heavy-duty engines (Engine Manufacturers 
Association v. Huston, No. 316-SS (June 13, 2001)).
    Response 1: We disagree that the regulation is preempted under 
Section 209(e) of the Act. Section 209(e) addresses state regulation of 
nonroad equipment. Section 209(e)(1) prohibits states from promulgating 
standards relating to the control of emissions from new construction 
and farm equipment which are smaller than 175 horsepower and new 
locomotives. Section 209(e)(2) does not expressly prohibit state 
regulation, but instead provides in section 209(e)(2)(A) that EPA shall 
authorize California to adopt and enforce standards and other 
requirements relating to the control of emissions for any nonroad 
engines other than those preempted under section 209(e)(1). The 
criteria for providing such an authorization are similar to those in 
section 209(b). Section 209(e)(2)(B) allows any state other than 
California to adopt and enforce emissions standards for nonroad 
equipment, and to take such others actions as are referred to in 
section 209(e)(2)(A), if such standards, implementation, and 
enforcement are identical to California's standards and two years of 
lead time is provided. Neither California nor other states are 
authorized to adopt or enforce emissions standards or other 
requirements for the farm, construction, and locomotive categories of 
non-road

[[Page 57225]]

equipment specified in 209(e)(1). See, Engine Manufacturers Ass'n v. 
EPA, 88 F. 3d 1075 (D.C. Cir. 1996) (EMA).
    EPA is expressly required to issue regulations to implement section 
209(e).
    An emission standard under section 209(a) and (e) is a quantitative 
limit on emissions of a pollutant from an engine, vehicle or piece of 
equipment. The means for achieving such control are typically through 
modifying or changing the engine or equipment itself, as compared to 
controlling or regulating how the equipment is operated in-use. This is 
the central distinction between emissions standards, which are 
prohibited under section 209(e), and state limitations on in-use 
operation, which are allowed under section 209(d).
    Pursuant to its express authority, EPA promulgated regulations 
implementing section 209(e) on December 30, 1997 (62 FR 67733). See 40 
CFR part 85 subpart Q and 40 CFR part 89, appendix A to subpart A. This 
rule revised earlier regulations promulgated on July 20, 1994 (59 FR 
36969) and on June 17, 1994 (59 FR 31306). EPA's regulations include an 
interpretive rule stating, in part, that ``EPA believes that states are 
not precluded under section 209 from regulating the use and operation 
of nonroad engines, such as regulations on hours of use, daily mass 
emission limits or sulfur limits on fuel.'' The regulations promulgated 
on December 30, 1997 were not challenged and are binding Federal law. 
The initial regulations were challenged in the Court of Appeals for the 
District of Columbia Circuit. Engine Manufacturers Ass'n v. EPA, 88 F. 
3d 1075 (D.C. Cir. 1996) (EMA). The basic issue before the court was 
the scope of preemption under section 209(e). While all parties agreed 
that Congress implicitly intended to preempt state action under section 
209(e)(2), the scope of this preemption was in dispute. The court held 
that preemption under section 209(e)(2) extended to both new and non-
new nonroad equipment. The court then went on to address ``what sorts 
of regulations the states are preempted from adopting.'' See, EMA, 88 
F. 3d at 1093. The court agreed with EPA that ``standards'' prohibited 
under 209(e) were quantitative limits on emissions as discussed in 
Motor & Equipment Manufacturers Ass'n, Inc. v. EPA, 627 F.2d 1095 (D.C. 
Cir. 1979) (MEMA), cert. denied, 446 U.S. 952 (1980). It also agreed 
that EPA's interpretation of ``other requirements'' under section 
209(e) was reasonable, limiting them to ``ancillary enforcement 
mechanisms such as certificates and inspections.'' Again, see EMA, 88 
F. 3d at 1093. Finally, the Court agreed with EPA that states had the 
rights to impose the kind of use, operation or movement restrictions on 
nonroad equipment authorized under section 209(d).
    We believe Congress explicitly excluded such use restrictions from 
the preemption of section 209 because, among other things, Congress 
believed states were best situated to regulate such use. ``It may be 
that, in some areas, certain conditions at certain times will require 
control of movement of vehicles. Other areas may require alternative 
methods of transportation * * * These are areas in which the States and 
local government can be most effective.'' S. Rep. No. 403, 90th Cong., 
1st Sess. 34 (1967). Similar congressional intent was expressed when 
the nonroad provisions were adopted in 1990. See EMA, 88 F. 3d at 1094 
n.58.
    The EPA regulations on this issue are binding rules and have been 
upheld by the Court of Appeals for District of Columbia. We believe 
that the decision of the District Court in EMA v. Huston, in which EPA 
was not a party, was incorrect both in its failure to defer to the 
reasoned opinion of both EPA and the D.C. Court of Appeals and in its 
failure to dismiss the challenge to the Dallas use restriction as an 
inappropriate collateral attack on regulations that had already been 
upheld in an earlier appellate court case.
    The hours-of-use restriction enacted by the state are exactly the 
type of restrictions on use permitted under section 209(d) and EPA 
regulations.
    Comment 2: Toro and the Counties commented that the use restriction 
does not meet the enforceability requirements of section 110(a)(2)(C). 
They point out that no additional manpower is provided for in the 
submittal to EPA and assert that there are no provisions regarding the 
consequences for failure to comply with the restrictions.
    Response 2: The submittal containing these measures included 
evidence of legal authority to enforce them. Section 382.039 of the 
Texas Health and Safety Code provides authority for the State to 
promulgate and implement regulations to demonstrate attainment. This 
authority to implement necessarily includes the authority to enforce.
    The State has addressed in the SIP documents that they will enforce 
the requirements after the rule compliance date and take appropriate 
action for noncompliance situations. They have indicated that the rules 
will be enforced by both their staff in the commission's regional 
offices, as well as local air pollution control programs. In Texas, 
local governments have the same power and are subject to the same 
restrictions as the commission under TCAA, Sec. 382.015, Power to Enter 
Property, to inspect the air and to enter public or private property in 
its territorial jurisdiction to determine if the level of air 
contaminants in an area in its territorial jurisdiction meet levels set 
by the commission. Thus, the local governments which also may sign 
cooperative agreements with the commission to enforce the rules under 
TCAA, Sec. 382.115, Cooperative Agreements, have the authority to 
enforce these rules as well. The authority of local governments to 
enforce air pollution requirements is specified in detail in TCAA, 
Secs. 382.111-382.115, and local governments can institute civil 
actions in the same manner as the TNRCC pursuant to Texas Water Code 
(TWC), Sec. 7.351. The TNRCC states they will work with local officials 
to ensure enforcement of the SIP and SIP rules. The TNRCC has existing 
relationships with pollution control authorities in the City of 
Houston, Harris County, and Galveston County for enforcement of other 
commission rules. The agency details that they will continue 
enforcement relationships with these entities and develop relationships 
with other local officials as needed to create any additional 
enforcement mechanisms required for carrying out the SIP and related 
SIP rules. The TNRCC states they will enforce this rule with existing 
personnel and does not anticipate any increase in enforcement costs. 
The State indicates there would be no civil penalties issued to a 
commercial operator, however, fines may be assessed via an 
administrative penalty, with the monies being collected and retained by 
the state.
    40 CFR part 51, Appendix V, details the criteria for determining 
completeness of plan submissions. With respect to enforceability 
requirements, the State has met the applicable criteria listed in 
Section 2.0 of Appendix V, including: adoption in State code; evidence 
of legal authority; submitting copies of the regulation; evidence that 
the proper state procedural requirements were followed; giving public 
notice consistent with EPA procedures; certification of the public 
hearings; and, compilation of public comments and the State's responses 
thereto.
    If the State is unable to enforce the program adequately, we would 
be in a position to issue a ``SIP call'' and require additional efforts 
or additional emission control measures to make up for the reductions 
lost by a failure to enforce the approved program.
    Comment 3: The Counties, Toro and BCCA all express concern that the 
use

[[Page 57226]]

restriction increases the danger of heat related injuries. They assert 
that because operators currently work from 7:00 a.m until noon and then 
stop until later in the afternoon, the restriction will cause workers 
to be out during the mid-day hours, typically the hottest part of the 
day. Further, Toro asserts that citizens would be inconvenienced by 
changes in maintenance schedules at parks and golf courses.
    Response 3: We do not necessarily agree that all workers will have 
to be exposed to the early afternoon heat because of the morning 
restrictions. True, the restrictions apply during the hottest time of 
the year. However, this is also the time of the year when there is more 
daylight. If the owner/operator does not opt for alternatives to the 
morning operating restrictions (discussed later in this response), 
instead of working during the mid-afternoon, the work can be later in 
the evening, when temperatures have begun to moderate and there is more 
shade and less direct sunlight. Another alternative is to take measures 
to mitigate the affects of the heat. According to OSHA there are 
various methods of preventing heat stroke and other adverse health 
effects without eliminating work during hot hours of the day. 
Supervisors can schedule frequent breaks and provide adequate amounts 
of water. Operators of lawn equipment would be expected to take all 
necessary measures to protect their health and safety and educate 
themselves about potential risks as it is presumed they do currently.
    While there are ways to work around the restrictions or mitigate 
the potential adverse impacts, the same may not be said of the known 
adverse health impacts of elevated ozone levels. These impacts are not 
limited to those in the field of commercial landscaping, but apply 
across the board to everyone. These health affects are even more 
pronounced in those particularly unable to avail themselves of 
potential mitigating measures, the elderly and very young. Likewise, 
the inconvenience for those wishing to play golf on a freshly manicured 
course or not be subject to the noise of the equipment while a park is 
being mowed is extremely trivial when compared to the benefits of 
reduced ground level ozone. As a result, we do not feel that these 
concerns justify disapproval of the submittal. The rule does not ban 
lawn maintenance activities altogether, but simply shifts the time 
period during which activities with certain types of equipment may be 
conducted.
    Finally, the regulations offer alternatives to the restriction of 
operation during the morning hours. The owner/operator of commercial 
landscape equipment may opt to submit a plan which provides for 
reductions of VOC and NOX equivalent to those that would 
result from compliance with the restrictions. Such plans are to be 
submitted by May 31, 2003, and the State commits to take action on the 
plans by May 31, 2004. To support the alternative compliance methods, 
the TNRCC has developed guidance to assist commercial operators in 
developing a plan to achieve equivalent emission reductions of 
NOX and VOC. Commercial operators would be able to submit a 
plan that uses these pre-approved actions or changes instead of 
developing a plan that would require case-specific approval by the 
executive director and the EPA. Reliance on the pre-approved measures 
will simplify the plan submittal process for commercial operators and 
will assist the executive director in the review and approval of each 
submittal. Commercial operators retain the option of developing their 
own plan which will be subject to executive director and EPA approval.
    The State considered the difficulties this rule may impose on 
businesses and individuals, and thus is adopting it with an extended 
compliance schedule so that lawn and maintenance businesses may 
supplement their equipment with electric or manual powered units, re-
arrange their working schedules, or develop an emissions control plan. 
It should be noted that the compliance schedule fits well with the 
indicated equipment replacement cycle of 2 to 4 years common in the 
industry. This schedule facilitates the transition to cleaner, 
electric, or manual equipment.
    Comment 4: Toro, OPEI, the Counties and BCCA commented that this 
regulation will have a significant economic impact on the landscape 
service industry and that this economic impact exceeds the actual 
benefits derived from the restrictions.
    Response 4: Actions such as the approval of a SIP revision which 
merely approve state law as meeting federal requirements and impose no 
additional requirements beyond those imposed by state law are not 
subject to economic impact analysis under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Such consideration is up to the state under 
applicable state administrative procedure laws. Details on the State's 
assessments of financial impact can be found in the submitted SIP 
documents.
    Comment 5: The Counties questioned how the individual enforcing the 
restriction will distinguish commercial from non commercial operators 
of the equipment. The Counties also stated that a ``kind gesture before 
noon would result in violation of the restriction'', and cited the 
following circumstances as causing a violation: The teenager who mows 
his neighbor's lawn; the church member who mows the church lawn or 
church property; the kind neighbor who trims his neighbor's trees, and 
the neighbor who tills the flower bed or garden spot for the someone 
next door.
    Response 5: For this rule, a Commercial operator is defined as any 
person who receives payment or compensation in exchange for operating 
lawn and garden service equipment powered by spark-ignition engines of 
25 hp or below where the payment or compensation is required to be 
reported as income by the United States Internal Revenue Code. 
Generally speaking, this is any person who earns more than $400 a year 
using the aforementioned equipment. The persons cited by the commenters 
as examples of those who would be violating the regulation do not fall 
under the category of a commercial operator, and as such would not be 
in violation of this rule.
    The field methods to distinguish commercial from non commercial 
operators is the responsibility of the State and can be accomplished in 
a number of ways. The time period between now and the date of April 1, 
2005, when the restrictions become effective, provides sufficient time 
for formulation of State procedures/requirements for such 
determination.
    Comment 6: BCCA indicated that the commitment to implement 
innovative measures should be used in lieu of the restriction on hours 
of operation. BCCA contends that the ban could be eliminated and 
alternative measures could be pursued before or during the mid-course 
review to account for the NOX reductions that the TNRCC 
currently allocates to the ban.
    Response 6: We agree that the possibility exists that innovative 
measures may come about that would exceed the amounts needed to fill 
the gap. However, we do not agree that the State should withdraw 
reasonably available measures with the hope that sufficient reductions 
to offset these regulations will come to fruition. Lawn and garden 
equipment makes a significant contribution to the HG area ozone levels. 
This rule is significant in the HG area's plan to close the gap and 
demonstrate attainment. In addition, section 172(c)(1) of the Clean Air 
Act requires the SIP to provide for implementation of all reasonably 
available control measures (RACM) as expeditiously as practicable and 
for attainment of the NAAQS. This measure is reasonable, available, and 
will accelerate the attainment of the ozone

[[Page 57227]]

standard. Therefore, the restriction on hours of operation of 
commercial lawn equipment is required to remain a part of the 
attainment demonstration SIP.
    Comment 7: Toro and the Counties questioned the validity of the 
modeling used to determine the benefits associated with the restriction 
on hours of operation. Toro believes that the emissions predicted by 
the State are purely speculative. OPEI commented that the emissions 
benefits in the submittal were greatly exaggerated and submitted a 
technical analysis from a technical consultant in support of their 
position. Further, OPEI commented that the baseline emissions inventory 
upon which the calculations were based was incorrect.
    Response 7: In developing the SIP and related regulations the TNRCC 
worked extensively with the lawn and garden industry, consultants, and 
other affected industries in the HG area, in the development of 
emissions and equipment inventories reflecting accurate and HG area 
specific data. The latest version of the photochemical model recognized 
by the EPA for SIP modeling (the Comprehensive Air Model with 
Extensions (CAMX)) was used for the modeling. The latest 
emissions inventories available, those provided with EPA's ``Non-Road 
Equipment and Vehicle Emission Study'' (NEVES, EPA-21A-2001, November 
1991), were used by the State in developing the Lawn and Garden 
Equipment Operating Restriction rule. The TNRCC adjusted this inventory 
data for temporal factors on the basis of a local study performed in 
1990 for the Houston Galveston area. For lawn and garden equipment this 
represents the best information available at the time. This inventory 
was then built up to the attainment year of 2007 by using urban 
planning data from the Houston/Galveston Area Council (HGAC--the area's 
urban planing organization), and the latest population database (1999) 
obtained from the State of Texas Comptroller of Public Accounts and the 
Texas State Data Center.
    The draft EPA model known as the NONROAD model was not used for 
calculations of emissions, however limited use was made of the NONROAD 
model to develop the attainment-year inventory. Because NONROAD 
accounts for the several phases of federal requirements for small 
engines, TNRCC ran NONROAD for the base and attainment years, assuming 
zero growth in equipment population. The resulting emissions were then 
ratioed to provide reduction factors for each source category resulting 
from federal controls. Thus, the modeling performed by the State does 
include the Federal Phase II emission standards for small handheld and 
non-handheld engines recently adopted.
    The use of urban planning projections from HGAC, the latest human 
population numbers as the basis for growth to the attainment year of 
2007, and the inclusion of up to date engine emissions data, provides 
competent accuracy of emissions growth and the industries' contribution 
to ozone production.
    The State simulated the shifting of commercial operators emissions 
to the afternoon while keeping the residential operators emissions in 
the morning hours to ensure proper accounting of the shift effect in 
the photochemical modeling. Commercial use profiles show full use 
occurring in the morning and afternoon hours, tapering off in the 
evening. However, residential use indicates a two peak profile with 
cutting peaks in the morning and the evening, with slow times occurring 
during mid-day. Because of these profiles, the modeled shift was more 
sensitive to commercial operators shifting of hours of operation, and 
an approximate 50% shift in emissions resulted.
    Numerous emission control strategies were considered by the State 
in developing the modeling. Varying degrees of reductions from point 
sources, on-road and non-road mobile sources, and area sources were 
analyzed in multiple iterations of modeling, to test the effectiveness 
of different NOX reductions. The attainment demonstration 
modeling and other analysis show that a significant amount of 
NOX reductions is necessary from ozone control strategies in 
order for the HG nonattainment area to achieve the ozone NAAQS by 2007, 
including reductions from surrounding counties included in the HG 
consolidated metropolitan statistical area (CMSA). The State used 
state-of-the-art photochemical methodologies to develop this rule. 
However, the TNRCC and EPA continually seek to improve inventories and 
modeling, and while it may be true that there may be several methods of 
analysis and that better emissions inventories may yet be developed, it 
is also known that substantial reductions are necessary in the HG area. 
The reductions provided by this rule are significant and important in 
helping the HG area to attain by 2007. The State will be performing a 
mid-course review in May, 2004. At that time modifications to the SIP 
can be made, if applicable.
    Comment 8: Toro commented that Texas should implement a voluntary 
emission reduction credit program in lieu of the operating 
restrictions. They point to the Texas Emission Reduction Program 
established by Texas Senate Bill 5.
    Response 8: The ``Carl Moyer'' style program referred to by Toro 
was specifically authorized by Texas' 77th legislature. Senate Bill 5 
not only provides statutory authority for emission reduction projects, 
but also provides a funding mechanism for such a program. However, that 
authority is limited and not available for the small combustion-
ignition engines that are the subject of the operating restrictions, 
and, it is known that substantial reductions are necessary in the HG 
area to enable the HG area to attain by 2007. The reductions provided 
by this rule are significant and important in this respect. The State 
will be performing a mid-course review in May, 2004. At that time 
modifications to the SIP can be made, if applicable.
    Comment 9: OPEI and BCCA contend that the restriction has a 
disproportionate impact on small and minority owned businesses.
    Response 9: EPA disagrees with this contention. The rule will not 
have a disparate impact on persons based on income level, business 
size, race, color, or national origin. Any negative impacts of the rule 
are clearly borne equally by all commercial operators and their 
employees governed by the rule. Equally significant is the fact that 
the health benefits (including health related economic benefits) of 
this rule will be enjoyed by all, including those claimed to be 
adversely affected. Every citizen in the area, especially asthmatics, 
the very young, and the very old, are vulnerable to the effects of 
ground level ozone. The ultimate responsibility of this rule is to 
maintain and improve the air quality and public health in the HG area. 
This rule would do that by creating reductions in NOX and 
VOC. These reductions are a necessary measure for successfully 
demonstrating attainment. The State was aware of the economic and other 
difficulties this rule will impose on businesses and individuals in the 
drafting of this rule. Consequently, the rule includes an extended 
compliance schedule so that lawn and maintenance businesses may 
supplement their equipment with electric or manual powered units or 
develop an emissions control plan.

B. Comments Received in Response to the Requirements for Motor Vehicle 
Idling Rule

    Only one set of comments were received on this portion of the 
proposal. Those comments were submitted by Jeri Yenne on behalf of 
Brazoria, Fort Bend

[[Page 57228]]

and Montgomery counties in Texas (Counties).
    Comment 1: The Counties assert that the exceptions provided 
effectively nullify the prohibition on idling and that because the 
exceptions are so broad there will be no emission reductions as a 
result of these requirements.
    Response 1: We disagree with this comment. Under 30 TAC section 
114.507 the restrictions clearly apply to all vehicles over 14,000 
pounds, including long-haul trucks and buses, that operate in the 
counties specified. The exceptions are intended to account for 
reasonable circumstances, such as when the vehicle is not in motion due 
to traffic congestion. Those vehicles used for commercial passenger 
transportation and school buses may idle for the purpose of passenger 
comfort, but only up to thirty minutes. We do not believe extending the 
idling limitation from five minutes to 30 minutes or applying any of 
the other exemptions render the program a nullity.
    Comment 2: The Counties commented that enforcement of these 
provisions was unlikely given the difficulty enforcing weight 
restrictions.
    Response 2: We are unaware of any credible evidence indicating that 
the State would not be able to enforce the idling restrictions. The 
State has submitted information to demonstrate the legal authority to 
enforce this measure. If there is a failure to implement the program, 
EPA may issue a ``SIP call'' and require the State to either correct 
the program deficiencies or submit measures sufficient to offset all 
lost emission reductions.
    The State is working on reaching agreements with the local 
governments for assistance in enforcing these regulations. The Texas 
Health and Safety Code provides for enforcement of State environmental 
regulations in sections 382.111 through 382.115. In addition, local 
governments may institute civil actions in the same manner as the TNRCC 
according to section 7.351 of the Texas Water Code.
    Comment 3: The Counties assert that there is no scientific evidence 
to support the reductions claimed from idling restrictions.
    Response 3: EPA disagrees with the comment. Statistics clearly 
indicate that vehicles over 14,000 GVMR are typically diesel. These 
vehicles have documented less stringent emission standard requirements 
than light duty vehicles. Studies indicate that these types of vehicles 
typically are allowed to idle for long periods of time. Targeting of 
these vehicles to restrict their idle time will reduce their emissions, 
including NOX. Because NOX is a precursor to 
ground-level ozone formation, reduced emissions of NOX will 
result in ground-level ozone reductions. Texas used state-of-the-art 
photochemical methodologies to develop this rule. Emissions data for 
covered vehicles were adjusted for lower idle times in accordance with 
the restriction (estimated hours of operation that would be reduced due 
to the restrictions), and this data was used as modeling input. 
Modeling assessing the benefits of this NOX emission 
reduction strategy demonstrated that emission reductions could be 
achieved by limiting the idling time of heavy-duty motor vehicles. The 
modeling showed that by the year 2007, the idling limits will reduce 
NOX emissions in the affected area by 0.48 tons per day 
(tpd). The TNRCC further estimates a daily cost savings benefit of this 
rule at approximately $51,900 per ton of NOX reduced. This 
figure was calculated from the estimated NOX reductions from 
this strategy of 0.48 tpd, the estimated reduction in fuel consumption 
per hour, and the current price per gallon of fuel sold in the affected 
area.
    Substantial reductions are necessary in the HG area. The reductions 
provided by this rule are significant and important in helping the HG 
area to attain by 2007. This rule is one element of an air pollution 
control strategy in the eight-counties HG ozone nonattainment area to 
reduce NOX necessary for the counties to be able to 
demonstrate attainment with the ozone NAAQS. The State will be 
performing a mid-course review in May, 2004. At that time modifications 
to the SIP can be made, if applicable. Should the restrictions not 
provide the reductions anticipated, Texas will be required to submit 
additional measures to ensure attainment of the ozone NAAQS by 2007.

EPA Action

    We are approving two rules: Lawn Service Equipment Operating 
Restrictions; and, Requirements for Motor Vehicle Idling for the HG 
Ozone Nonattainment Area.

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. 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 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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). This action 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 rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (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. This rule does not 
impose an information collection burden under the provisions of the

[[Page 57229]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. 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. 
section 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 14, 2002. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Motor vehicle pollution, Volatile organic compounds, 
Nitrogen oxides, Ozone, Reporting and recordkeeping requirements.

    Dated: October 15, 2001.
Gregg A. Cooke,
Acting Regional Administrator, Region 6.

    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 et seq.

Subpart SS--Texas

    2. In Sec. 52.2270, the table in paragraph (c) is amended by adding 
to the ending of the section ``Chapter 114 (Reg 4)--Control of Air 
Pollution From Motor Vehicles'' new headings with entries for 
``Subchapter I--Non-Road Engines'' and ``Subchapter J--Operational 
Controls for Motor Vehicles'', to read as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * * 

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                           State approval/  EPA approval
          State citation                Title/subject      submittal date       date            Explanation
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                        Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
                                         Subchapter I--Non-Road Engines
                            Division 6: Lawn Service Equipment Operating Restrictions
----------------------------------------------------------------------------------------------------------------
Section 114.452...................  Control Requirements.        12/20/00  [Insert 11-14-
                                                                               01 Federal
                                                                           Register cite]
----------------------------------------------------------------------------------------------------------------
Section 114.459...................  Affected Counties and        12/20/00  [Insert 11-14-
                                     Compliance Dates.                         01 Federal
                                                                           Register cite]
----------------------------------------------------------------------------------------------------------------
                              Subchapter J--Operational Controls for Motor Vehicles
                                  Division 1: Motor Vehicle Idling Limitations
----------------------------------------------------------------------------------------------------------------
Section 114.500...................  Definitions..........        12/20/00  [Insert 11-14-
                                                                               01 Federal
                                                                           Register cite]
Section 114.502...................  Control Requirements         12/20/00  [Insert 11-14-
                                     for Motor Vehicles.                       01 Federal
                                                                           Register cite]
----------------------------------------------------------------------------------------------------------------
Section 114.507...................  Exemptions...........        12/20/00   [Insert 11-14-
                                                                               01 Federal
                                                                           Register cite]
----------------------------------------------------------------------------------------------------------------
Section 114.509...................  Affected Counties and        12/20/00  [Insert 11-14-
                                     Compliance Dates.                         01 Federal
                                                                           Register cite]
----------------------------------------------------------------------------------------------------------------


[[Page 57230]]

* * * * *

[FR Doc. 01-27583 Filed 11-13-01; 8:45 am]
BILLING CODE 6560-50-P