[Federal Register Volume 67, Number 234 (Thursday, December 5, 2002)]
[Rules and Regulations]
[Pages 72379-72383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30764]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-127-1-7555; FRL-7416-5]


Approval and Promulgation of Implementation Plans for Texas: 
Transportation Control Measures Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this final action, the EPA is approving a revision to the 
Texas State Implementation Plan (SIP) that contains the transportation 
control measures (TCM) rule. The requirements in the State TCM rule 
address the roles and responsibilities of the Metropolitan Planning 
Organizations (MPO), implementing transportation agencies, and provide 
a method for substitution of specific TCMs without a SIP revision in 
the nonattainment and maintenance areas. The TCM rule is intended to 
promote effective implementation of TCMs, provide consequences for non-
implementation, establish a streamline TCM substitution process and 
approval, and increase interaction between the Texas Commission on 
Environmental Quality (TCEQ) \1\ and the MPOs in the air quality 
transportation planning process at the local levels. The EPA is 
approving this SIP revision under section 110(k) and 182 of the Clean 
Air Act (CAA). The rationale for the final approval action and other 
information are provided in this document.
---------------------------------------------------------------------------

    \1\ Recently, this organization changed its name from Texas 
Natural Resource Conservation Commission (TNRCC).

---------------------------------------------------------------------------
EFFECTIVE DATE: This final rule is effective on January 6, 2003.

ADDRESSES: Copies of the relevant material for this action 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 Commission on Environmental Quality, 12100 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Joe Kordzi, Air Planning Section (6PD-
L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone 
(214) 665-7186.

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

Table of Contents

I. What Is The Background for This Action?
II. What Did The State Submit and How Did We Evaluate It?
III. Responses To Comments On The Direct Final Action.
IV. What Is Our Final Action?
V. What administrative requirements apply for this action?

I. What Is the Background for This Action?

    Section 182(d)(1)(A) of the CAA requires States containing ozone 
nonattainment areas which are classified as ``severe'' pursuant to 
section 181(a) of the CAA to adopt TCM and transportation control 
strategies to offset any growth in emissions from growth in Vehicle 
Miles Traveled (VMT) or number of vehicle trips and to attain 
reductions in motor vehicle emissions (in combination with other 
emission reduction requirements) as necessary to comply with the CAA's 
Reasonable Further Progress (RFP) milestones and attainment 
requirements. The requirements for establishing a VMT Offset program 
are discussed in the General Preamble to Title I of the CAA (57 FR 
13498), April 16, 1992, and in section 182(d)(1)(A).
    In addition, the states may adopt TCMs as control strategies in 
order to meet the requirements of sections 182(b) and 182(c) of the CAA 
for RFP and attainment SIPs in the ozone nonattainment areas. The EPA 
can only accept the emission credits resulting from such TCMs if the 
State can provide adequate evidence that it will have authority to 
enforce the TCMs which are identified as a part of the control strategy 
in the RFP and attainment demonstration SIPs for meeting the ozone 
standard.\2\ The State of Texas has adopted certain TCMs for meeting 
the RFP and attainment demonstration requirements under sections 182(b) 
and (c) of the CAA.
---------------------------------------------------------------------------

    \2\ See section 110(a)(2)(A) of the CAA.
---------------------------------------------------------------------------

    Our action today addresses the State's authority, processes, 
procedures, and responsibilities of each agency regarding 
implementation and substitution of the TCMs in any SIP in the 
designated nonattainment or maintenance areas.

[[Page 72380]]

II. What Did the State Submit and How Did We Evaluate It?

    The Governor of Texas submitted the TCM SIP revision on May 17, 
2000. The TCEQ adopted the Texas TCM rule on May 9, 2000, after 
appropriate public notice and hearing. The TCM rule consists of two 
parts. 30 Texas Administrative Code (TAC) Chapter 114 Section 114.5 
includes ``Transportation Planning Definitions.'' 30 TAC Chapter 114 
Section 114.270 contains ``Transportation Control Measures,'' which 
addresses the roles and responsibilities of the MPOs and implementing 
transportation agencies in nonattainment and maintenance areas and 
provides a method for the substitution of TCMs. The TCEQ developed the 
TCM rule in cooperation with the MPOs, the Texas Department of 
Transportation, and in consultation with the Federal Highway 
Administration, Federal Transit Administration, and the EPA. The State 
TCM rule identifies the responsibility of each agency and sets forth 
the procedures and processes for selection of the TCMs, inclusion in 
the SIP, periodic reporting and record-keeping, corrective measures, 
emissions reductions and TCM effectiveness, and consequences of non-
implementation. In addition, the rule specifically establishes 
processes and procedures for substitution of any TCM in the SIP that 
cannot be implemented for any reason by the implementation date in the 
SIP. The TCM rule guarantees that substituted TCMs will be both 
equivalent \3\ in terms of emissions, and enforceable.\4\ The 
procedures for substitution of the TCMs require public notice and 
comment period and consultation, but do not require a formal SIP 
revision and approval by the EPA.
---------------------------------------------------------------------------

    \3\ 30 TAC section 114.270(f)(1)(A).
    \4\ 30 TAC section 114.270(f)(1)(D).
---------------------------------------------------------------------------

    We have reviewed the State TCM processes and procedures, and we 
have evaluated the provisions of the rule based on the criteria 
provided in the CAA for development of SIPs in the nonattainment and 
maintenance areas. We note that neither the CAA nor the EPA rules 
require the State to develop, and submit as a SIP revision, a TCM rule. 
Our evaluation is specifically based on sections 110, 176, 182, and 
consistency of this rule with the CAA. Based on this review, we have 
determined that the TCEQ's TCM rule provides adequate authority and 
procedures for implementation and substitution of TCMs in the 
designated nonattainment and maintenance areas including how 
equivalency is determined, public participation and EPA concurrence. 
Therefore, we are approving this SIP revision.

III. Responses to Comments on the Direct Final Action

    On July 16, 2001, the EPA published a direct final rule approving 
this revision to the Texas SIP containing the TCM rule. This rule 
contained the condition that if any adverse comments were received by 
the end of the public comment period on August 15, 2001, the direct 
final rule would be withdrawn, and we would respond to the comments in 
a subsequent final action. One set of comments was received from the 
Committees for Land, Air, Water, and Species (CLAWS). The following 
summarizes the comments and EPA's response to these comments:
    Comment 1: This comment states that the criteria for when a TCM 
substitution is appropriate must be specified. Substitution ``for any 
reason'' is not appropriate. MPOs can simply evade non-implementation 
issues through abuse of the substitution process.
    Response: 30 TAC section 114.270(f)(1)(A) requires that a 
substitute TCM provide for equivalent or greater emissions reductions 
than the TCM to be replaced. EPA feels that this prevents MPOs from 
either substituting a TCM with one that does not provide an equivalent 
level of emissions reductions, or simply withdrawing or failing to 
implement a TCM.
    Furthermore, 30 TAC section 114.270(c) requires that all TCMs be 
developed, coordinated, funded, approved, implemented, tracked, 
evaluated, and monitored in accordance with 30 TAC section 114.260 
(relating to Transportation Conformity); Title 40 Code of Federal 
Regulations, part 93 (Conformity to State or Federal Implementation 
Plans of Transportation Plans); the Federal Clean Air Act; and the EPA 
TCM SIP approval criteria listed in the EPA guidance document 
``Transportation Control Measures: State Implementation Plan Guidance, 
EPA 450/2-89-020, September 1990.'' EPA believes that this ensures that 
the TCM substitution process will be adequately monitored, tracked, and 
if necessary properly enforced.
    Comment 2: This comment states that the public should have a 
representative in the working group that evaluates alternative TCMs.
    Response: A public hearing is required by 30 TAC section 
114.270(f)(5) prior to a substitution being made. The public will have 
a minimum of 30 days prior to the hearing to submit comments. Comments 
can also be submitted during the public hearing itself. EPA believes 
that this affords the public ample opportunity to be engaged in the TCM 
substitution process.
    Comment 3: This comment states that EPA's concurrence period of 14 
days is too short and unreasonable. The period should be at least 60 
days. EPA must make an independent finding of TCM equivalency and 
publish it in the Federal Register.
    Response: As required by 30 TAC sections 114.270(f)(3), and 
114.270(f)(4), in order to identify and evaluate possible substitute 
TCMs, the MPO must form a committee or working group which will consult 
with EPA Region 6. The MPO, the TCEQ, and the EPA Region 6 must concur 
with the appropriateness and equivalency of the substitute TCM. 
Consequently, EPA will be fully engaged in the TCM substitution process 
prior to the final 14 day concurrence period cited in the comment, and 
will have ample opportunity to conduct its analysis.
    Regarding the second part of the question, EPA does not agree that 
it must conduct future rulemaking on TCM substitution. In approving the 
rule today as part of the Texas SIP, EPA finds that under the rule, all 
TCM substitutions will produce equivalent emission reductions and meet 
all TCM approval requirements or will be in violation of the approved 
SIP. The principal reasons for the TCM substitution process are to (1) 
allow MPOs flexibility in meeting emissions requirements, and (2) to 
encourage the inclusion of TCMs in the SIP. EPA will be engaged in this 
process to ensure TCM equivalency of any substitution. If EPA were to 
publish each TCM finding in the Federal Register, along with the 
presumed public comment period typical of such announcements, much of 
the intended benefits of a streamlined TCM substitution process would 
be lost. EPA believes that the State's requirements for a 30-day 
comment period and public hearing already provide ample opportunity for 
public involvement in the substitution process.
    Comment 4: This comment states substitute TCM equivalency must be 
evaluated in units of emissions reductions, VMT reductions, and trip 
start reductions.
    Response: As stated in the response to Comment 1, 30 TAC section 
114.270(f)(1) (A) requires that a substitute TCM must provide for 
equivalent or greater emissions reductions than the TCM to be replaced. 
In addition 30 TAC section 114.270(f)(2) requires that the analysis of 
substitute TCMs must be consistent with the methodology used for 
evaluating TCMs

[[Page 72381]]

in the SIP, including the use of the latest emissions modeling 
techniques. EPA believes that these requirements will ensure that TCM 
equivalency will be adequately evaluated.
    Comment 5: This comment states that any TCM substitution analysis 
and evaluation must include a comparative environmental and social 
justice impact process. An environmental justice representative should 
be a member of the working group.
    Response: EPA fully supports Executive Order 12898, concerning 
environmental justice. In addition, the Federal Transit Administration 
and the Federal Highway Administration each have environmental justice 
policies, to which State Departments of Transportation that receive 
federal funds must adhere.
    The Agency defines environmental justice to mean the fair treatment 
of people of all races, cultures, and incomes with respect to the 
development, implementation, and enforcement of environmental laws and 
policies, and their meaningful involvement in the decision making 
processes of the government.
    EPA encourages the MPO, in the formation of the committee or 
working group that will evaluate possible substitute TCMs, (as required 
by 30 TAC sections 114.270(f)(3)) to include representatives from the 
portions of the community or communities affected by the TCM 
substitution and those concerned about environmental justice issues. 
EPA believes that since the public will have, as provided for by 30 TAC 
section 114.270(f)(5), a minimum of 30 days prior to the hearing to 
submit comments, and an opportunity to submit comments during the 
public hearing itself, ample opportunity for meaningful public 
involvement in the TCM substitution process will be provided.
    Comment 6: This comment states the language concerning 
``implementation date'' must be clarified. The initiation and full 
implementation of substitute TCMs should be undertaken in the same time 
frame as the original TCM. If this is not possible, the completion of 
the substitute TCM's full implementation should occur at the same time 
as the original TCM. If this is not possible, full implementation 
should occur as expeditiously as practicable. Any temporal loss of 
emissions reductions must be backfilled through ERC bank purchases or 
other offsetting emissions reductions to meet SIP timetables for 
emissions reductions.
    Response: As required by 30 TAC sections 114.270(f)(1)(B) and 
114.270(f)(1)(C), a substitute TCM must provide for implementation in 
the time frame established for the TCM in the SIP. If the 
implementation date has already passed, measures that require funding 
must be included in the first year of the next transportation 
improvement program and metropolitan transportation plan adopted by the 
MPO. Full implementation must occur not later than two years from the 
scheduled implementation date of the original TCM. EPA believes that 
these requirements will ensure that substitute TCMs are implemented as 
expeditiously as possible, therefore participation in an Emission 
Reduction Credit (ERC) bank is unnecessary.
    Comment 7: This comment states that the enforceability of the 
substituted and substituting TCM is not evident from the rule. States 
cannot unilaterally amend their SIPs and rescind a TCM.
    Response: Regarding the enforceability issue, 30 TAC section 
114.270(f)(1)(D) requires that a substitute TCM must provide for 
evidence of adequate personnel, funding, and authority under state or 
local law to implement, monitor, and enforce the measures in order for 
the TCEQ to approve the substitute TCM. EPA believes that this will 
ensure that the substituted and substituting TCM will be adequately 
enforced. Additionally, both the EPA and citizens can take appropriate 
action for any violation of the approved SIP, which includes violations 
of the TCM substitution process under sections 113(a)(1), 113(a)(2), 
and 304 of the CAA. Regarding the second part of the comment, the 
purpose of the TCM substitution process is to allow substitutions, 
through an approval process that has been approved into the SIP, 
without having a separate federal SIP rulemaking. Also, the TCM 
substitution process is not unilateral, in that the TCEQ, EPA, the MPO, 
and the public are all involved, and the process has been approved into 
the SIP as providing for both equivalency in terms of emissions and 
enforceability of the substituted TCMs.
    Comment 8: This comment states that EPA has not provided sufficient 
analysis of the legal authority to approve such a rule. The CAA 
requires all SIP measures to be enforceable at all times. The Federal 
Register notice lacks essential analysis of the proposed action.
    A related comment states that the proposed action has national 
ramifications. While the benefits of flexibility in TCM implementation 
are significant, this must comport with the requirements of the CAA. As 
proposed, the rule fails to address enforceability and the issues noted 
above.
    Response: EPA believes that a replicable procedure for enforceable 
TCM substitution is consistent with existing EPA SIP policy. As stated 
in the Direct Final Rule (66 FR 36921, July 16, 2001) neither the CAA 
nor the EPA rules require the State to develop, and submit as a SIP 
revision, a TCM rule. This evaluation is specifically based on the 
consistency of this rule with sections 110, 176, and 182 of the CAA. 
Based on this review, we have determined that the TCEQ's TCM rule 
provides adequate authority and procedures for implementation and 
substitution of TCMs in the designated nonattainment and maintenance 
areas including how equivalency is determined, public participation and 
EPA concurrence. The issue of enforceability is addressed in the 
response to Comment 7.

IV. What Is Our Final Action?

    We are approving the Texas TCM rule which addresses the roles and 
responsibilities of the MPOs, implementing transportation agencies, and 
provides a method for substitution of the TCMs without a SIP revision 
in the nonattainment and maintenance areas. We have evaluated this SIP 
revision and have determined that the State's rules in TAC 30 Chapter 
114 sections 114.5 and 114.270 provide adequate processes and 
procedures consistent with the CAA for implementing, tracking, and 
substitution of the TCMs, with equivalent control measures, which are 
used as a control strategy in the SIPs for attainment and maintenance 
of the NAAQS. The TCEQ conducted appropriate public participation 
during development and adoption of this rule at the local level.

V. What Administrative Requirements Apply for This Action?

    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

[[Page 72382]]

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 (Pub. L. 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 CAA. 
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 CAA. 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 CAA. 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 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. 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 3, 2003. 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, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: November 21, 2002.
Lawrence E. Starfield,
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. The table in Sec.  52.2270(c) entitled ``EPA Approved 
Regulations in the Texas SIP'' is amended:
    a. Under Chapter 114, Subchapter A, by adding new section 114.5, 
Transportation Planning Definition, immediately following section 
114.3;
    b. Under Chapter 114, Subchapter G, by adding new section 114.270, 
Transportation Control Measures, immediately after Section 114.260.

    3. The table in Sec.  52.2270(e) entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding to the end of the table an entry for 
``Transportation Control Measures SIP Revision.''
    The additions 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 data        date               Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
------------------------------
                        Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 114.5................  Transportation            05/03/2000  12/5/02 and FR
                                Planning Definition.                  page cite.
------------------------------
 
                                                 * * * * * * *
                                      Subchapter G--Transportation Planning
----------------------------------------------------------------------------------------------------------------
 

[[Page 72383]]

 
                                                  * * * * * * *
Section 114.270..............  Transportation            05/03/2000  12/5/02 and FR
                                Control Measures.                     page cite.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                   Applicable
                                  geographic or   State submittal/   EPA approval
     Name of SIP provision        nonattainment    effective date        date                  Comments
                                      area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Transportation Control          All                   05/09/2000   12/5/02 and FR    Chapter 1. Introduction,
 Measures SIP Revision.          Nonattainment                      page cite..       Chapter 2. General, and
                                 and Maintenance                                      Chapter 3. Criteria and
                                 Areas.                                               Procedures.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-30764 Filed 12-4-02; 8:45 am]
BILLING CODE 6560-50-P