[Federal Register Volume 70, Number 128 (Wednesday, July 6, 2005)]
[Rules and Regulations]
[Pages 38776-38779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13279]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0024; FRL-7928-6]


Approval and Promulgation of Implementation Plans; Texas; 
Transportation Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving State 
Implementation Plan (SIP) revisions submitted by the State of Texas on 
February 23, 2004, and on May 17, 2005. These revisions serve to 
incorporate recent revisions to the federal conformity rule into the 
state conformity SIP.

DATES: This rule is effective on September 6, 2005, without further 
notice, unless EPA receives relevant adverse comment by August 5, 2005. 
If EPA receives such comment, EPA will publish a timely withdrawal in 
the Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Regional Materials in 
EDocket (RME) ID No. R06-OAR-2005-TX-0024, by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rempub/. Regional 
Materials in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the online instructions for submitting 
comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Thomas Diggs at [email protected]. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.

[[Page 38777]]

     Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to RME ID No. R06-OAR-2005-TX-
0024. EPA's policy is that all comments received will be included in 
the public file without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through Regional Materials in EDocket (RME), regulations.gov or e-mail 
if you believe that it is CBI or otherwise protected from disclosure. 
The EPA RME Web site and the federal regulations.gov Web site are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public file and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters and any form of encryption, and should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Materials in EDocket (RME) index at http://docket.epa.gov/rempub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in the official file, which 
is available at the Air Planning Section (6PD-L), Environmental 
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. The file will be made available by appointment for public 
inspection in the Region 6 FOIA Review Room between the hours of 8:30 
a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the 
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or 
Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, 
please make the appointment at least two working days in advance of 
your visit. There will be a 15 cent per page fee for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Peggy Wade, Air Planning Section (6PD-
L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
700, Dallas, Texas 75202-2733, telephone (214) 665-7247; fax number 
214-665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Outline

I. What Action is EPA Taking?
II. What is the Background for this Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    On May 22, 2003, the Texas Commission on Environmental Quality 
(TCEQ) submitted revisions to its SIP addressing changes to the 
transportation conformity rule (30 TAC 114.260) adopted by the state on 
May 1, 2003. Additionally, on May 17, 2005, EPA received another 
submittal from TCEQ further revising the transportation conformity rule 
as adopted by the state on April 27, 2005. These revisions incorporate 
recent changes in the federal transportation conformity rule into the 
Texas conformity SIP and are described in detail below. EPA is 
approving these revisions to the Texas conformity SIP.

II. What Is the Background for This Action?

    The Federal Clean Air Act Amendments of 1990 (CAA) required each 
state to submit a revision to its SIP by November 25, 1994, 
establishing enforceable criteria and procedures for making conformity 
determinations for metropolitan transportation plans (MTP), 
transportation improvement programs (TIP), and projects funded by the 
Federal Highway Administration (FHWA) or the Federal Transit 
Administration (FTA). The conformity rule assures that in air quality 
nonattainment or maintenance areas, projected emissions from 
transportation plans and programs stay within the motor vehicle 
emissions ceiling in the applicable attainment demonstration or 
maintenance SIP. The transportation conformity SIP enables the state to 
implement and enforce the Federal transportation conformity 
requirements at the state level per 40 CFR 51 subpart T and 40 CFR 93 
subpart A.
    EPA published final rules regarding conformity requirements on 
November 24, 1993 (58 FR 62188). Since then, EPA has made several 
amendments to the transportation conformity rules: August 7, 1995 (60 
FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 
43780), April 10, 2000 (65 FR 18911), August 6, 2002 (67 FR 50808), and 
July 1, 2004 (69 FR 40004). The state of Texas submitted an initial 
conformity SIP to EPA on November 6, 1994, and we approved this SIP on 
November 8, 1995 (60 FR 56244). Revisions to this SIP to address the 
federal rule amendments promulgated up to and including 1997 were 
submitted by the Governor of Texas on December 10, 1998, and approved 
by EPA on July 8, 1999 (64 FR 36790). With the current revisions 
submitted by TCEQ, the state is aligning its rule to the federal 
conformity rule for all amendments up to and including those 
promulgated on July 1, 2004.
    Specifically, these revisions address a March 2, 1999, ruling by 
the United States Court of Appeals for the District of Columbia 
(Environmental Defense Fund v. EPA, et al., 167 F. 3d 641, D.C. Cir. 
1999). The court's ruling affected provisions of the rule that 
pertained to the funding of MTPs and TIPs; use of motor vehicle 
emissions budgets (MVEB) prior to SIP approval; federal transportation 
projects in areas without a conforming MTP and TIP; timing of 
conformity consequences following an EPA SIP disapproval; and use of 
submitted safety margins in areas with

[[Page 38778]]

approved SIPs submitted prior to November 24, 1993.
    More recent changes to the rule are inclusion of criteria and 
procedures for implementing conformity in accordance with the new 
National Ambient Air Quality Standards (NAAQS) addressing eight-hour 
ozone and particulate matter with an aerodynamic diameter less than or 
equal to 2.5 micrometers (PM 2.5). Changes relating to the 
implementation of these new standards are summarized below.
    Changes to 40 CFR 93.101 add new definitions for one-hour ozone 
NAAQS; eight-hour ozone NAAQS; donut areas; isolated rural 
nonattainment and maintenance areas; and limited maintenance plans. 
Other federal changes in the rule include provision of a one-year grace 
period before conformity is required in newly designated nonattainment 
areas and the addition of PM 2.5 to the list of criteria 
pollutants (40 CFR 93.102). Changes to 40 CFR 93.104 were made to amend 
the point by which a conformity determination must be made following a 
state's submission of a control strategy SIP or maintenance SIP for the 
first time. This new provision requires conformity to be determined 
within 18 months of EPA's affirmative finding that the SIP's MVEBs are 
adequate. Changes to the grace period for transportation plan 
requirements in certain ozone and carbon monoxide nonattainment areas 
are made in 40 CFR 93.106. 40 CFR 93.109 has been changed to include 
the applicability of conformity for one-hour ozone nonattainment or 
maintenance areas until EPA revokes the one-hour ozone NAAQS and 
additional language related to conformity requirements for the new 
NAAQS for eight-hour ozone and PM 2.5. Changes to 40 CFR 
93.110 clarify that conformity determinations must be based on the 
latest planning assumptions in place at the time a conformity analysis 
begins, rather than at the time of Department of Transportation's 
conformity finding. Some changes to the methodology of hot-spot 
analyses were made at 40 CFR 93.116. The rule revisions also made 
several changes with respect to the MVEB at 40 CFR 93.118 where the 
adequacy process is discussed. Changes to 40 CFR 93.119 concern use of 
interim emissions tests in areas without adequate or approved MVEBs. In 
40 CFR 93.120, the 120-day grace period previously allowed prior to a 
conformity freeze has been deleted so that a freeze will occur 
immediately upon the effective date of a SIP disapproval. EPA amended 
the rule at 40 CFR 93.121 so that regionally significant, non-federal 
projects may no longer advance during a conformity lapse unless they 
have received all necessary state and local approvals prior to the 
lapse. EPA also made minor revisions to 40 CFR 93.117 and 40 CFR 
93.124-93.126. For a comprehensive guide to all changes in the federal 
rule, please see the reference document at http://www.epa.gov/otaq/transp/conform/420b04013.pdf or the transportation conformity final 
rule at 69 FR 40004.

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

    With these two SIP submissions, the state is incorporating by 
reference the changes made to the federal conformity rule up to and 
including the final rule issued on July 1, 2004 (69 FR 40004), with the 
exception of the requirements of 40 CFR 93.105. The federal 
requirements in 40 CFR 93.105 are addressed in the commission's rule in 
30 TAC 114.260(d) and are not being changed with this revision. The 
TCEQ is also making minor changes to other sections of the state 
conformity rule to correct typographical errors and reflect updated 
name and style changes within the Commission in accordance with the 
Texas Legislative Council Drafting Manual of October 2002.
    The SIP revision package submitted to EPA on May 22, 2003, 
contained a revision to 30 TAC 114.452, Control Requirements. EPA is 
not acting on 30 TAC 114.452 today. This submitted revision allows 
commercial operators of lawn and garden equipment additional time to 
submit an alternate emission reduction plan. However, TCEQ has since 
repealed this rule and EPA will be acting on the repeal in a subsequent 
Federal Register publication. The package submitted in 2003 also 
contained a revision to 30 TAC 114.21, Exemptions. EPA is not acting on 
30 TAC 114.21 today.

IV. Final Action

    EPA is approving the revisions to the Texas conformity SIP and 
corresponding amendments to 30 TAC 114.260 Transportation Conformity. 
The EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revisions if relevant adverse 
comments are received. The rule will be effective on September 6, 2005, 
without further notice unless we receive adverse comment by August 5, 
2005. If we receive adverse comment we will publish a timely withdrawal 
in the Federal Register informing the public this rule will not take 
effect. We will address all public comments in a subsequent final rule 
based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. Please note that if we receive adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, we may adopt as final those 
provisions of the rule that are not the subject of adverse comment.

V. Statutory and Executive Order Reviews

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.'' This rule is not a ``significant energy action'' 
as defined in Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355 (May 22, 2001)), because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 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 (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

[[Page 38779]]

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). EPA interprets Executive Order 13045 as 
applying only to those regulatory actions that are based on health or 
safety risks, such that the analysis required under section 5-501 of 
the Order has the potential to influence the regulation. This rule is 
not subject to Executive Order 13045 because it approves a state 
program.
    In reviewing SIP submissions under the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note), 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 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 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 September 6, 2005. 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, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: June 17, 2005.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. In Sec.  52.2270, the table in paragraph (c) entitled ``EPA approved 
regulations in the Texas SIP'' under Chapter 114 is amended by revising 
section 114.260 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
 
                                                  * * * * * * *
Section 114.260..............  Transportation        04/27/2005        7/6/2005
                                Conformity.                          [Insert FR
                                                                    page number
                                                                 where document
                                                                        begins]
 
                                                  * * * * * * *
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[FR Doc. 05-13279 Filed 7-5-05; 8:45 am]
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