[Federal Register Volume 85, Number 117 (Wednesday, June 17, 2020)]
[Rules and Regulations]
[Pages 36504-36506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10835]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0229; FRL 10009-40-Region 6]


Air Plan Approval; Texas; Approval of Substitution for Dallas-
Fort Worth Area Transportation Control Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of administrative change.

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SUMMARY: The Environmental Protection Agency (EPA) is making an 
administrative change to update the Code of Federal Regulations (CFR) 
to reflect a change made to the Texas State Implementation Plan (SIP) 
on February 21, 2020, as a result of EPA's concurrence on substitute 
transportation control measures (TCMs) for the Dallas-Fort Worth (DFW) 
8-hour ozone nonattainment area portion of the Texas SIP. EPA has 
determined that the substitution of the TCMs is consistent with the 
Clean Air Act and EPA's national guidance on such substitutions, and 
therefore falls within the ``good cause'' exemption in the 
Administrative Procedure Act (APA) which, upon finding ``good cause,'' 
authorizes an agency to make an action effective immediately.

DATES: This action is effective June 17, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2020-0229. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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 electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Riley, 214-665-8542, 
[email protected]. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office may be closed to the 
public to reduce the risk of transmitting COVID-19. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Under Clean Air Act (CAA) section 176(c)(8), 
States are allowed to substitute TCMs in approved SIPs for replacement 
TCMs which achieve equivalent or greater emissions reductions without 
having to undertake the standard SIP revision process.\1\ The DFW area 
metropolitan planning organization, the North Central Texas Council of 
Governments (NCTCOG),\2\ identified for substitution three TCMs 
originally approved as High-Occupancy Vehicle (HOV) lanes into the DFW 
SIP as follows:
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    \1\ The Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEA-LU) transportation funding 
and authorization bill, which was signed into law on August 10, 
2005, revised the CAA's section 176(c) transportation conformity 
provisions to allow states to substitute or add TCMs into approved 
SIPs without the standard SIP revision process. These revisions 
facilitate compliance with the transportation conformity rule's 
requirements for timely implementation of TCMs (40 CFR 93.113) by 
expediting the TCM substitution process.
    \2\ As the Metropolitan Planning Organization for the DFW area, 
NCTCOG is delegated authority under 30 Texas Administrative Code 
Sec.  114.270 to implement SIP-approved TCMs for the DFW ozone 
nonattainment area.

[[Page 36505]]



               Table 1--Approval of TCMs Into the DFW SIP
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          SIP revision               EPA approval             TCM
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April 2000 DFW 1-Hour Ozone       September 27, 2005   IH 35
 Attainment Demonstration.         (70 FR 56374).      East corridor
                                                       (Stemmons
                                                       Freeway) HOV lane
                                                       between IH 635
                                                       and SH 121.
                                                       IH 635
                                                       West corridor
                                                       (LBJ Freeway) HOV
                                                       lane between Luna
                                                       Road/IH 35 E and
                                                       US 75.
May 2007 DFW 1997 8-Hour Ozone    January 14, 2009     IH 635
 Attainment Demonstration.         (74 FR 1903).       East corridor
                                                       (LBJ Freeway) HOV
                                                       lane between Coit
                                                       Road and
                                                       Greenville
                                                       Avenue.
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    The NCTGOC determined that since the opening of these HOV lanes, 
increased congestion in these corridors had resulted from increased 
population and vehicle miles traveled. As a result, the HOV lanes no 
longer provided the needed congestion relief and associated nitrogen 
oxide (NOX) and volatile organic compound (VOC) air quality 
benefits approved into the DFW SIP as detailed in Table 1.
    As a part of the TCM substitution concurrence process required 
under CAA section 176(c)(8), the NCTCOG published notice on November 7, 
2019 in 20 DFW area newspapers and circulars announcing a November 11, 
2019 public meeting to provide information on the proposed TCM 
substitutions and begin a 30-day public comment period. No public 
comments were received, and EPA did not provide comment or concurrence 
during this comment period. On December 12, 2019, the NCTCOG Regional 
Transportation Council adopted a resolution to substitute these HOV 
lane TCMs for traffic signalization project TCMs to offset any 
NOX and VOC emission reduction credits lost by removing 
these corridors from HOV lane usage and keep equivalent emission 
reduction controls in place.
    On February 21, 2020, EPA issued concurrence letters to the Texas 
Commission on Environmental Quality (TCEQ) and the NCTCOG stating that 
the substitution of the DFW area IH 35E/IH 635 HOV Lane TCMs with 
traffic signalization project TCMs met the CAA section 176(c)(8) 
requirements for substituting TCMs in an area's approved SIP, including 
the requirement that the substitute measures achieve equivalent or 
greater emission reductions than the control measure to be replaced. On 
February 18, 2020, the TCEQ issued similar concurrence letters to EPA 
Region 6 and the NCTCOG. Each of the above-noted concurrence letters 
are included in the docket to this rulemaking as part of the State of 
Texas' April 8, 2020 submittal to EPA. See EPA's Guidance for 
Implementing the Clean Air Act Section 176(c)(8) Transportation Control 
Measure Substitution and Addition Provision dated January 2009.
    Upon issuance EPA's February 21, 2020 concurrence letters, the HOV 
Lane substitutions took effect as a matter of federal law.\3\ In 
accordance with the requirements for TCM substitution, on April 8, 
2020, the State of Texas submitted through the TCEQ a request for EPA 
to update the DFW portion of the Texas SIP to reflect EPA's February 
21, 2020 approval of the TCM substitution of the HOV Lanes with the 
traffic signalization project TCMs in its SIP (the subject of this 
administrative change). Today, EPA is taking administrative action to 
update the non-regulatory provisions of the Texas SIP in 40 CFR 
52.2270(e) to reflect EPA's concurrence on the substitution to convert 
the IH 35E/IH 635 HOV Lane TCMs to traffic signalization project TCMs:
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    \3\ CAA section 176(c)(8)(B) stipulates that concurrence by the 
MPO, State air pollution control agency and the EPA shall constitute 
adoption of the substitute control measures, and that once adopted, 
the substitute measures become, by operation of law, part of the SIP 
and become federally enforceable.

------------------------------------------------------------------------
                                                               State
     Name of nonregulatory SIP           Applicable       submittal date/
             provision                  geographic or        effective
                                     nonattainment area        date
------------------------------------------------------------------------
DFW nine-county area IH-35E/IH-635  Dallas-Fort Worth...        4/8/2020
 HOV Lane TCMs to traffic
 signalization TCMs. Affected
 counties are Dallas, Tarrant,
 Collin, Denton, Parker, Johnson,
 Ellis, Kaufman, Rockwall.
------------------------------------------------------------------------

    Under section 553 of the APA, an agency may find good cause where 
procedures are ``impractical, unnecessary, or contrary to the public 
interest.'' EPA's January 2009 guidance establishes EPA's rationale for 
utilizing the good cause provision under the APA to take actions 
relating to TCM substitutions without additional need for public 
comment because the substitution was originally made through the 
process approved into the Texas SIP (79 FR 5287) in addition to the CAA 
section 176(c)(8) statutory provision as applicable, and because the 
public has had the opportunity to comment on the specific substitution 
during NCTCOG's public comment period.\4\ Effective immediately, 
today's action codifies provisions which are already in effect. The 
public had an opportunity to comment on this substitution during the 
public comment period prior to approval of the substitution. Immediate 
notice of this action in the Federal Register benefits the public by 
providing the updated Texas SIP Compilation and ``Identification of 
Plan'' portion of the CFR.
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    \4\ EPA's rationale for applicability of the APA ``good cause'' 
exemption to TCM substitution rulemakings is provided in its January 
2009 Guidance for Implementing the Clean Air Act Section 176(c)(8) 
Transportation Control Measure Substitution and Addition Provision, 
EPA-420-B-09-002. https://nepis.epa.gov/Exe/ZyPDF.cgi/P1002W66.PDF?Dockey=P1002W66.PDF.

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[[Page 36506]]

Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011), this administrative action is not 
a ``significant regulatory action'' and is therefore not subject to 
review by the Office of Management and Budget. This action is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866. Because the Agency has made a ``good 
cause'' finding that this action is not subject to notice-and-comment 
requirements under the APA or any other statute as indicated in the 
Supplementary Information section above, it is not subject to the 
regulatory flexibility provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded 
Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4). In addition, this 
action does not significantly or uniquely affect small governments or 
impose a significant intergovernmental mandate, as described in 
sections 203 and 204 of UMRA.
    This administrative action also does 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), 
nor will it 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 administrative action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant. This administrative action does not involve technical 
standards; thus the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. The administrative action also does not involve special 
consideration of environmental justice related issues as required by 
Executive Order 12898 (59 FR 7629, February 16, 1994). This 
administrative action does not impose an information collection burden 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act (CRA) (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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. Today's 
administrative action simply codifies a provision which is already in 
effect as a matter of law in Federal and approved state programs. 5 
U.S.C. 808(2). These announced actions were effective upon EPA's 
concurrence. EPA will submit a report containing this action 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 this action in the Federal Register. This update to 
Texas' SIP Compilation is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: May 14, 2020.
Kenley McQueen,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as follows:

PART 52--[AMENDED]

0
1. The authority for 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 (e), amend the table titled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
Texas SIP'' by adding an entry for ``DFW nine-county area IH-35E/IH-635 
HOV Lane TCMs to traffic signalization TCMs'' at the end of the table 
to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                       Applicable
      Name of SIP provision          geographic or     State submittal/   EPA approval date        Comments
                                   nonattainment area   effective date
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                                                  * * * * * * *
DFW nine-county area IH-35E/IH-   Dallas-Fort Worth:           4/8/2020  6/17/2020 [Insert    ..................
 635 HOV Lane TCMs to traffic      Dallas, Tarrant,                       Federal Register
 signalization TCMs.               Collin, Denton,                        citation].
                                   Parker, Johnson,
                                   Ellis, Kaufman and
                                   Rockwall Counties.
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[FR Doc. 2020-10835 Filed 6-16-20; 8:45 am]
BILLING CODE 6560-50-P