[Federal Register Volume 83, Number 193 (Thursday, October 4, 2018)]
[Rules and Regulations]
[Pages 50018-50022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21453]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R6-OAR-2018-0386; FRL-9983-93-Region 6]


Air Plan Approval; Texas; Control of Air Pollution from Motor 
Vehicles with Mobile Source Incentive Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving revisions to the 
Texas State Implementation Plan (SIP) submitted by the State of Texas 
that pertain to regulations to control air pollution from motor 
vehicles with mobile source incentive programs.

DATES: This rule is effective on January 2, 2019 without further 
notice, unless the EPA receives relevant adverse comment by November 5, 
2018. If the EPA receives such comment, the 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 Docket No. EPA-R6-OAR-
2018-0386, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed

[[Page 50019]]

from Regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact Mr. Randy 
Pitre, (214) 665-7299, [email protected]. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Randy Pitre, (214) 665-7299, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Mr. Randy Pitre or Mr. Bill Deese at (214) 
665-7253.

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

I. Background

A. CAA and SIPs

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets National Ambient Air 
Quality Standards. These ambient standards currently address six 
criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, 
particulate matter, and sulfur dioxide. Each federally-approved SIP 
protects air quality primarily by addressing air pollution at its point 
of origin through air pollution regulations and control strategies. The 
EPA approved SIP regulations and control strategies are federally 
enforceable.

B. Texas' Submittal

    Texas submitted a revision to its SIP to update and improve the 
mobile source incentive program regulations for diesel vehicles, clean 
fleets and drayage trucks.\1\ Specifically, on May 25, 2018, the State 
of Texas through the Texas Commission on Environmental Quality (TCEQ) 
submitted revisions to its Mobile Source Incentive Programs that are 
found in Title 30 of the Texas Administrative Code (30 TAC), Chapter 
114 (Control of Air Pollution from Motor Vehicles), Subchapter K 
(Mobile Source Incentive Programs). The May 25, 2018, submittal revised 
regulations for the (1) Diesel Emissions Reduction Incentive Program 
for On-Road and Non-Road Vehicles (Division 3), (2) Texas Clean Fleet 
Program (Division 5), and (3) Drayage Truck Incentive Program (Division 
8, renamed as ``Seaport and Rail Yard Areas Emissions Reduction 
Program'').
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    \1\ The revisions to the Texas SIP submitted to EPA as part of 
this action were in response to the adoption of Senate Bill 1731 
enacted by the 85th Texas Legislature, 2017, Regular Session, which 
amended the statutory provisions pertaining to programs that are 
part of the Texas Emissions Reduction Plan (TERP). The mobile 
incentive programs implemented by the SIP revision are part of the 
TERP. For more information on TERP, please see: www.tceq.texas.gov/airquality/terp.
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C. What Criteria must be met for the EPA to Approve this SIP revision?

    In general, economic and mobile source incentive programs are 
programs that provide economic incentives for reducing air pollution 
emissions from on-road heavy-duty motor vehicles and non-road equipment 
emission sources. Because the SIP submittal revision pertains to 
economic incentive programs to reduce air pollution emissions from 
mobile sources, we evaluated them using (1) CAA section 182(g) 
(Economic Incentive Program) (2) our policy guidance on economic 
incentive programs found in 40 CFR part 51, subpart U (Economic 
Incentive Programs) and (3) our guidance document ``Improving Air 
Quality with Economic Incentive Programs'' (EPA-452/R-01-001, January 
2001, www.epa.gov/sites/production/files/2015-07/documents/eipfin.pdf). 
An economic incentive program achieves an air quality objective by 
providing market-based incentives or information to emission sources. 
Three fundamental principles apply to all approvable economic incentive 
programs: Integrity, equity, and environmental benefit.
    Pursuant to 40 CFR part 51.493 (State Program Requirements), 
Economic Incentive Programs (EIPs) shall be (1) State and federally 
enforceable, (2) nondiscriminatory, and (3) consistent with the timely 
attainment of national ambient air quality standards, all applicable 
reasonable further progress and visibility requirements, applicable 
prevention of significant deterioration increments, and all other 
requirements of the CAA. Programs in nonattainment areas for which 
credit is taken in attainment and RFP demonstrations shall be designed 
to ensure that the effects of the program are quantifiable and 
permanent over the entire duration of the program, and that the credit 
taken is limited to that which is surplus. Statutory programs shall be 
designed to result in quantifiable, significant reductions in actual 
emissions.\2\ As discussed below, we find the State's SIP revision 
submittal is consistent with above-referenced elements and our review 
and evaluation of the revisions are discussed in detail in our 
Technical Support Document (TSD).
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    \2\ As explained in more detail in the technical support 
document (and below), we have previously approved the Texas mobile 
source economic incentive program regulations, as we found that the 
regulations met the CAA and 40 CFR 51 Subpart U (Economic Incentive 
Programs) requirements. We have provided references to those prior 
approvals upon which these revisions are based.
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II. The EPA's Evaluation

    We have prepared a TSD for this rulemaking which details our 
evaluation of the SIP revisions. Our TSD may be accessed online at 
http://www.regulations.gov, Docket No. EPA-R06-OAR-2018-0386. As 
detailed more below, and in our TSD, we believe the SIP revisions to 
the Texas mobile source incentive programs meet the federal EIP 
requirements and are approvable. The Texas Mobile Source Economic 
Incentive Programs are consistent with the CAA as they will reduce air 
pollution and emissions of nitrogen oxides (NOX), which is a 
precursor to ozone and particulate matter. The emission reductions from 
replacing vehicles or replacing, repowering or retrofitting engines can 
be quantified, and provide an environmental benefit by reducing air 
pollution emissions by encouraging the use of newer diesel technologies 
in the Texas nonattainment areas. If Texas includes emission reductions 
from these programs in future attainment or reasonable further progress 
SIPs, EPA will evaluate the amount of reductions it achieves at that 
time. We are approving the Texas SIP submittal as part of the Texas 
SIP.
    As stated earlier, we have previously approved the Texas mobile 
source incentive program regulations as meeting CAA and 40 CFR 51.493 
regulatory requirements (See 82 FR 26756, June 9, 2017; 79 FR 5287, 
January 31, 2014; 75 FR 18061, April 9, 2010; 70 FR 18308, April 11, 
2005). The

[[Page 50020]]

May 25, 2018 SIP revision continues to meet these federal requirements.
    A summary of our evaluation is discussed below:

A. Diesel Emission Reduction Incentive Program for On-Road and Non-Road 
Vehicles

    The Diesel Emission Reduction Incentive Program for On-Road and 
Non-Road Vehicles provides funding for businesses to reduce emissions 
from diesel engines. The program includes a component that applies to 
small businesses. The revisions to this program revise 30 TAC Sections 
114.620, 114.622 and 114.623. The revisions amended the 30 TAC 
114.622(h) Incentive Program Requirements from the Executive Director 
``shall'' to ``may'' waive certain program eligibility criteria ``on a 
finding of good cause.'' \3\ The revisions amended the definition of a 
``Small Business'' to a business that (1) owns or operates not more 
than five vehicles (previously 2), (2) owns or operates an on-road 
diesel vehicle (previously one with a pre-1994 engine model) or a non-
road diesel (previously one with uncontrolled emissions) and (3) has 
owned the on-road or non-road diesel subject to the funding for more 
than two years (previously one year). This revision would expand the 
small business component of the program and make it more efficient by 
focusing on older diesel engines. An itemized list of the revisions, 
with our evaluation of each, is provided in the TSD.
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    \3\ The original 30 TAC 114.622(h) provision was approved in a 
previous regulatory action (79 FR 67068) on November 12, 2014. We 
find the change from ``shall'' to ``may'' continues to be 
approvable. In determining good cause and deciding whether to grant 
a waiver, the executive director shall ensure that the emissions 
reductions that will be attributed to the project will still be 
valid and, where applicable, meet the conditions for assignment for 
credit to the state implementation plan. See our TSD for a detailed 
history and rationale for approval of this provision.
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B. Texas Clean Fleet Program

    The Texas Clean Fleet Program provides funding to businesses with a 
fleet of 75 or more vehicles to replace diesel vehicles with a lower 
emitting hybrid or alternative fuel vehicle. The revisions to this 
program revise 30 TAC Sections 114.650-114.653. The number of vehicles 
qualifying for replacement was revised to 10 or more (previously 20 or 
more). This revision would allow for more replacements to be eligible 
for the program. The revisions include a change in definition from 
``clean transportation triangle'' to ``clean transportation zone'' that 
would include additional counties that were not a part of the previous 
``clean transportation triangle.'' The revisions include a change to 30 
TAC 114.653(e) from the executive director ``shall'' to ``may'' waive 
certain specified eligibility criteria upon ``a finding of good 
cause.'' \4\ An itemized list of the revisions, with our evaluation of 
each, is provided in the TSD.
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    \4\ EPA previously approved the original 30 TAC 114.653(e) 
provision at 79 FR 5287 on January 31, 2014. This provision change 
from ``shall'' to ``may'' continues to be approvable. Similar to 
114.622(h), we interpret that the executive director shall ensure 
that the projected emissions reductions will be valid and, where 
applicable, meet the conditions for assignment for credit to the 
state implementation plan. See our TSD for a detailed history and 
rationale for approval of this provision.
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C. Seaport and Rail Yard Areas Emissions Reduction Program

    The Seaport and Rail Yard Areas Emissions Reduction Program 
(formerly the Drayage Truck Incentive Program) provides funding to 
encourage owners to reduce emissions from drayage trucks at seaports 
and rail yards. Drayage refers to the transport of goods over a short 
distance. The revisions to this program revise 30 TAC Sections 114.680-
114.682. In addition to changing the name of the program, the revisions 
changed the requirements for replacing or repowering drayage trucks. As 
revised, the replacement engine must: (1) Be powered by an electric 
motor or contain an engine certified to current federal emissions 
standards and (2) emit at least 25% less NOX. In addition, 
unless otherwise determined by the commission, the NOX 
emissions rate of engines replaced or purchased under this program will 
be based on the emissions standard or family emissions limit to which 
the engine is certified or, for replacement of an uncontrolled engine, 
a baseline emissions rate established by the commission.\5\ The 
previous requirements were that: (1) The replacement drayage truck have 
an engine of model year 2010 or later and (2) the drayage truck being 
replaced must have an engine of model year 2006 or earlier. This 
revision would set a minimum in the amount of NOX reduced 
(at least 25% less). An itemized list of the revisions, with our 
evaluation of each, is provided in the TSD.
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    \5\ Similar to 30 TAC 114.622(h) and 30 TAC 114. 653(e), we 
interpret this provision so that the executive director shall ensure 
that the projected emissions reductions will be valid and, where 
applicable, meet the conditions for assignment for credit to the 
state implementation plan. See our TSD for a detailed history and 
rationale for approval of this provision.
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D. CAA 110(l) Demonstration

    Section 110 (l) of the CAA requires that each revision to an 
implementation plan submitted by a State under the CAA shall be adopted 
by such State after reasonable notice and public hearing. The 
Administrator shall not approve a revision of a SIP if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress (as defined in Section 7501 of the CAA) 
or any other applicable requirements of the CAA. As the regulation 
revisions discussed above pertain to voluntary incentive programs for 
reducing emissions, they will not interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable requirement of the CAA. EPA approval of the 
revisions is consistent with CAA 110(l).

III. Final Action

    We are approving revisions to the Texas SIP that pertain to 
regulations to control air pollution from motor vehicles with mobile 
source incentive programs. Specifically, we are approving revisions to 
30 TAC Sections 114.620, 114.622, 114.623, 114.650-114.653, and 
114.680-114.682.
    The EPA is publishing this rule without prior proposal because we 
view this as a non-controversial 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 revision if relevant adverse 
comments are received. This rule will be effective on January 2, 2019 
without further notice unless we receive relevant adverse comment by 
November 5, 2018. If we receive relevant adverse comments, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so now. Please note that if we receive 
relevant 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 an adverse comment.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the 
revisions to the Texas regulations as

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described in the Final Action section above. The EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 6 Office (please contact 
Randy Pitre, (214) 665-7299, [email protected] for more information). 
Therefore, these materials have been approved by EPA for inclusion in 
the SIP, have been incorporated by reference by EPA into that plan, are 
fully federally enforceable under sections 110 and 113 of the CAA as of 
the effective date of the final rulemaking of EPA's approval, and will 
be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 December 3, 2018. 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: September 26, 2018.
Anne Idsal,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, in paragraph (c), the table titled ``EPA Approved 
Regulations in the Texas SIP'' is amended by revising the entries for 
sections 114.620, 114.622, 114.623, 114.650-114.653 and 114.680-
114.682; and for Division 8 of Subchapter K in Chapter 114 to read as 
follows.


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                        State approval/
         State citation              Title/subject       Submittal date    EPA approval date      Explanation
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                                                  * * * * * * *
Section 114.620.................  Definitions........           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
 
                                                  * * * * * * *
Section 114.622.................  Incentive Program             4/4/2018  10/4/2018; [Insert  ..................
                                   Requirements.                           Federal Register
                                                                           citation].

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Section 114.623.................  Small Business                4/4/2018  10/4/2018; [Insert  ..................
                                   Incentives.                             Federal Register
                                                                           citation].
 
                                                  * * * * * * *
Section 114.650.................  Definitions........           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
Section 114.651.................  Applicability......           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
Section 114.652.................  Qualifying Vehicles           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
Section 114.653.................  Grant Eligibility..           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
 
                                                  * * * * * * *
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                       Division 8: Seaport and Rail Yard Areas Emissions Reduction Program
----------------------------------------------------------------------------------------------------------------
Section 114.680.................  Definitions........           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
Section 114.681.................  Applicability......           4/4/2018  10/4/2018; [Insert  ..................
                                                                           Federal Register
                                                                           citation].
Section 114.682.................  Eligible Vehicle              4/4/2018  10/4/2018; [Insert  ..................
                                   Models.                                 Federal Register
                                                                           citation].
 
                                                  * * * * * * *
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[FR Doc. 2018-21453 Filed 10-3-18; 8:45 am]
 BILLING CODE 6560-50-P