Approval and Promulgation of Implementation Plan for Texas: Transportation Conformity Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-56-1-7391a; FRL-6372-6]

Approval and Promulgation of Implementation Plan for Texas:

Transportation Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We, the EPA, are approving a revision to the Texas State

Implementation Plan (SIP) that contains the transportation conformity

rule. The conformity rules assure that in air quality nonattainment or

maintenance areas, projected emissions from transportation plans and

projects stay within the motor vehicle emissions ceiling in the SIP.

The transportation conformity SIP revision enables the State to

implement and enforce the Federal transportation conformity

requirements at the State level per 40 Code of Federal Regulations

(CFR) part 51, subpart T and 40 CFR part 93, subpart A--Conformity to

State or Federal Implementation Plans of Transportation Plans,

Programs, and Projects Developed, Funded or Approved Under Title 23

U.S.C. or the Federal Transit Laws. Our approval action streamlines the

conformity process and allows direct consultation among agencies at the

local levels. Our final approval action is limited to 40 CFR part 51,

subpart T and 40 CFR part 93, subpart A (Transportation Conformity). We

approved the SIP revision sent under 40 CFR part 51, subpart W

(conformity of general Federal actions) on March 11, 1998 (63 FR

11833).

We approve this SIP revision under sections 110(k) and 176 of the

Clean Air Act (Act). We have given our rationale for approving this SIP

revision in this action.

DATES: This rule is effective on September 7, 1999, without further

notice, unless EPA receives adverse comment by August 9, 1999. If we

receive adverse comment, we will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: You should send your written comments to Mr. Thomas H.

Diggs, Chief, Air Planning Section (6PDL) at the address given below.

You may inspect copies of the State's SIP revision and other relevant

information during normal business hours at the following locations. If

you wish to examine these documents, you should make an appointment

with the appropriate office at least 24 hours before the visiting day.

Air Planning Section (6PDL), Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Dallas, Texas 75202, Telephone: (214) 665-7214.

Texas Natural Resource Conservation Commission, Mobile Source Division,

12124 Park 35 Circle, Austin, Texas 78753, Telephone: (512) 239-1943.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning

Section (6PDL), Multimedia Planning and Permitting Division,

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,

Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

We have outlined the contents of this document below for your

reading convenience:

I. Background

A. What is a SIP?

B. What is the Federal approval process for a SIP?

C. What is transportation conformity?

D. Why must the State send a transportation conformity SIP?

E. How does transportation conformity work?

II. Approval of the State Transportation Conformity Rule

A. What did the State send?

B. What is EPA approving today and why?

C. How did the State satisfy the interagency consultation

process (40 CFR 93.105)?

D. Why did the State exclude the grace period for new

nonattainment areas (40 CFR 93.102(d))?

E. What parts of the rule are excluded?

III. Opportunity for Public Comments

IV. Administrative Requirements

I. Background

A. What is a SIP?

The states under section 110 of the Act must develop air pollution

regulations and control strategies to ensure that state air quality

meets the National Ambient Air Quality Standards (NAAQS) established by

the EPA. The Act under section 109 established these ambient standards

which currently includes six criteria pollutants. These pollutants are:

carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and

sulfur dioxide.

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Each state must send these regulations and control strategies to

us, the EPA, for approval and incorporation into the Federally

enforceable SIP.

Currently, each state has a federally approved SIP which protects

air quality and has emission control plans for nonattainment areas.

These SIPs can be extensive, containing state regulations or other

enforceable documents and supporting information such as emission

inventories, monitoring networks, and modeling demonstrations.

B. What is the Federal Approval Process for a SIP?

The states must formally adopt the regulations and control

strategies consistent with state and Federal laws for incorporating the

state regulations into the Federally enforceable SIP. This process

generally includes a public notice, public hearing, public comment

period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the

state will send these provisions to us for inclusion in the federally

enforceable SIP. We must then decide on an appropriate Federal action,

provide public notice, and request additional public comment on the

action. If anyone sends adverse comments, we must consider the comments

before a final action.

We incorporate all state regulations and supporting information

(sent under section 110 of the Act) into the Federally approved SIP

after our approval action. We maintain records of such SIP actions in

the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled

``Approval and Promulgation of Implementation Plans.'' The Government

does not reproduce the text of the Federally approved state regulations

in the CFR. They are ``incorporated by reference,'' which means that

the specific state regulation is cited in the CFR and is considered a

part of the CFR the same as if the text were fully printed in the CFR.

C. What is Transportation Conformity?

Conformity first appeared in the Act's 1977 amendments (Pub. L. 95-

95). Although the Act did not define conformity, it stated that no

Federal department could engage in, support in any way or provide

financial assistance for, license or permit, or approve any activity

which did not conform to a SIP which has been approved or promulgated.

The Act's 1990 Amendments expanded the scope and content of the

conformity concept by defining conformity to an implementation plan.

Section 176(c) of the Act defines conformity as conformity to the SIP's

purpose of eliminating or reducing the severity and number of

violations of the NAAQS and achieving expeditious attainment of such

standards. Also, the Act states that no Federal activity will: (1)

cause or contribute to any new violation of any standard in any area,

(2) increase the frequency or severity of any existing violation of any

standard in any area, or (3) delay timely attainment of any standard or

any required interim emission reductions or other milestones in any

area.

D. Why Must the State Send a Transportation Conformity SIP?

We were required to issue criteria and procedures for determining

conformity of transportation plans, programs, and projects to a SIP by

section 176(c) of the Act. The Act also required the procedure to

include a requirement that each State submit a revision to its SIP

including conformity criteria and procedures. We published the first

transportation conformity rule in the November 24, 1993, Federal

Register (FR), and it was codified at 40 CFR part 51, subpart T and 40

CFR part 93, subpart A. We required the States and local agencies to

adopt and submit a transportation conformity SIP revision to us by

November 25, 1994. The State of Texas sent a transportation conformity

SIP on November 6, 1994, and we approved this SIP on November 8, 1995

(60 FR 56244). We revised the transportation conformity rule on August

7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997

(62 FR 43780), and it was codified under 40 CFR part 51, subpart T and

40 CFR part 93, subpart A--Conformity to State or Federal

Implementation Plans of Transportation Plans, Programs, and Projects

Developed, Funded or Approved Under Title 23 U.S.C. or the Federal

Transit Laws (62 FR 43780). Our action of August 15, 1997, required the

States to change their rules and send a SIP revision by August 15,

1998.

E. How Does Transportation Conformity Work?

The Federal or State transportation conformity rule applies to all

nonattainment and maintenance areas in the State. The Metropolitan

Planning Organizations (MPO), the State Departments of Transportation

(in absence of a MPO), and U.S. Department of Transportation make

conformity determinations. These agencies make conformity

determinations on programs and plans such as transportation improvement

programs, transportation plans, and projects. The MPOs calculate the

projected emissions for the transportation plans and programs and

compare those calculated emissions to the motor vehicle emissions

ceiling established in the SIP. The calculated emissions must be

smaller than the motor vehicle emissions ceiling for showing a positive

conformity with the SIP.

II. Approval of the State Transportation Conformity Rule

A. What did the State Send?

On December 10, 1998, the Governor of Texas sent a SIP revision

that includes the State's transportation conformity and consultation

rule. The Texas Natural Resource Conservation Commission (TNRCC)

adopted this SIP revision on November 18, 1998, after appropriate

public participation and interagency consultation.

B. What is EPA Approving Today and Why?

We are approving the Texas transportation conformity rule that the

Governor of Texas sent us on December 10, 1998 except for the

incorporation by reference of sections 93.102(c), 93.104(d), 93.109(c)-

(f), 93.118(e), 93.120(a)(2), 93.121(a)(1), and 92.124(b) of 40 CFR

into 30 Texas Administrative Code (TAC) 114.26(c). The rationale for

exclusion of these sections are discussed in Section II.E of this

action. The TNRCC has adopted the Federal rules by ``incorporation by

reference'' except for the interagency consultation section (40 CFR

93.105) and the grace period for new nonattainment areas (40 CFR

93.102(d)). We will discuss the reasons for exclusion of these two

sections later in this document.

``Incorporation by Reference'' (IBR) means that the State adopted

the Federal rules without rewriting the text of the Federal rules but

by referring to them for inclusion as if they were printed in the state

regulation. The Federal Transportation Conformity Rule required the

states to adopt majority of the Federal rules in verbatim form with a

few exceptions. The States can not make their rules more stringent than

the Federal rules unless the State's rules apply equally to nonfederal

entities as well as Federal entities. The TNRCC Transportation

Conformity Rule is the same as the Federal rule and the State has made

no additional changes or modifications, with the exception of those

sections mentioned above.

We have evaluated this SIP revision and have determined that the

State has fully adopted the Federal transportation conformity rules as

described in 40 CFR

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part 51, subpart T and 40 CFR part 93, subpart A. Also, the TNRCC has

completed and satisfied the public participation and comprehensive

interagency consultations during development and adoption of these

rules at the local level. Therefore, we are approving this SIP

revision.

Our approval action does not include general conformity (40 CFR

part 51, subpart W). We approved the Texas general conformity SIP on

March 11, 1998 (63 FR 11833).

C. How did the State Satisfy the Interagency Consultation Process (40

CFR 93.105)?

Our rule requires the States to develop their own processes and

procedures for interagency consultation among the Federal, State, and

local agencies and resolution of conflicts meeting the criteria in 40

CFR 93.105. The SIP revisions must include processes and procedures to

be followed by the MPO, State Department of Transportation (DOT), and

the U.S. Department of Transportation (USDOT) in consulting with the

State and local air quality agencies and EPA before making conformity

determinations. Also, the transportation conformity SIP revision must

have processes and procedures for the State and local air quality

agencies and EPA in coordinating development of applicable SIPs with

MPOs, State DOT, and USDOT.

The State developed its own consultation rule based on the elements

in 40 CFR 93.105, and excluded this section from IBR. As a first step,

the State established an ad hoc multiagency committee that included

representatives from the State air quality agency, State DOT, USDOT,

MPOs, EPA, the local air quality agency, local transportation agencies,

and local transit operators. The State air quality agency served as the

lead agency in coordinating the multiagency efforts for developing the

consultation rule. The committee met approximately biweekly and drafted

consultation rules by considering the elements in 40 CFR 93.105 and 23

CFR part 450, and by integrating the local procedures and processes

into the final consultation rule. The consultation rule developed

through this process is unique to the State of Texas and is codified

under section 114.260(d) of the State rule. We have determined that the

State adequately included all elements of 40 CFR 93.105 and meets the

EPA SIP requirements.

D. Why did the State Exclude the Grace Period for New Nonattainment

Areas (40 CFR 93.102(d))?

The State excluded 40 CFR 93.102(d) from its IBR. Section 93.102(d)

allows up to 12 months for newly designated nonattainment areas to

complete their conformity determination. The Sierra Club challenged

this section of the rule arguing that allowing a 12-month grace period

was unlawful under the Act. On November 4, 1997, the United States

Court of Appeals for the District of Columbia Circuit held in Sierra

Club v. Environmental Protection Agency, No. 96-1007, cited EPA's grace

period violates the plain terms of the Act and, therefore, is unlawful.

Based on this court action, the State has excluded this section from

its rule. We agree with the State's action, and exclusion of 40 CFR

93.102(d) will not prevent us from approving the State transportation

conformity SIP.

E. What Parts of the Rule are Excluded?

We promulgated the transportation conformity rule on August 15,

1997. On March 2, 1999, the United States Court of Appeals for the

District of Columbia Circuit issued its opinion in Environmental

Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court

granted the environmental group's petition for review and ruled that 40

CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) are unlawful and remanded

40 CFR 93.118(e) and 93.120(a)(2) to EPA for revision to harmonize

these provisions with the requirements of the Act for an affirmative

determination the Federal actions will not cause or increase violations

or delay attainment. The sections that were included in this decision

were:

(a) 40 CFR 93.102(c)(1) which allowed certain projects for which

the National Environmental Policy Act (NEPA) process has been completed

by the DOT to proceed toward implementation without further conformity

determinations during a conformity lapse,

(b) 40 CFR 93.118(e) which allowed use of motor vehicle emissions

budgets (MVEB) in the submitted SIPs after 45 days if EPA had not

declared them inadequate,

(c) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a

disapproved SIP for 120 days after disapproval,

(d) 40 CFR 93.121(a)(1) which allowed the nonfederally funded

projects to be approved if included in the first three years of the

most recently conforming transportation plan and transportation

improvement programs, even if conformity status is currently lapsed,

and

(e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP

that allocated portions of a safety margin to transportation activities

for conformity purposes before EPA approval.

Since the States were required to submit transportation conformity

SIPs not later than August 15, 1998, and include those provisions in

verbatim form, the State's SIP revision includes all those sections

which the Court ruled unlawful or remanded for consistency with the

Act. The EPA can not approve these sections.

We believe that the TNRCC has complied with the SIP requirements

and has adopted the Federal rules which were in effect at the time that

the transportation conformity SIP was due to the EPA. If the court had

issued its ruling before adoption and SIP submittal by the TNRCC, we

believe the TNRCC would have removed these sections from its IBR. The

TNRCC has expended its resources and time in preparing this SIP and

meeting the Act's statutory deadline, and EPA acknowledges the agency's

good faith effort in submitting the transportation conformity SIP on

time.

The TNRCC will be required to submit a SIP revision in the future

when EPA revises its rule to comply with the court decision. Because

the court decision has invalidated these provisions, we believe that it

would be reasonable to exclude the corresponding sections of the state

rules from this SIP approval action. As a result, we are not taking any

action on the IBR of sections 93.102(c), 93.104(d), 93.109(c)-(f),

93.118(e), 93.120(a)(2), 93.121(a)(1), and 93.124(b) of 40 CFR at 30

TAC 114.260(c) under the State conformity rule. The conformity

determinations affected by these sections should comply with the

relevant requirements of the statutory provisions of the Act underlying

the court's decision on these issues. EPA will be issuing guidance on

how to implement these provisions in the interim prior to EPA amendment

of the federal transportation conformity rules. Once these Federal

rules have been revised, conformity determinations in Texas should

comply with the requirements of the revised Federal rule until

corresponding provisions of the Texas conformity SIP have been approved

by EPA.

III. Opportunity for Public Comments

The EPA is publishing this rule without prior proposal because we

view this as a noncontroversial amendment and anticipate no adverse

comment. However, in the ``Proposed Rules''

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section of today's Federal Register publication, we are publishing a

separate document that will serve as the proposal to approve this SIP

revision if adverse comments are filed. This rule will be effective on

Septmber 7, 1999, without further notice unless we receive adverse

comment by August 9, 1999. If EPA receives adverse comment, 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 at this time.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under E. O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB a description

of the extent of EPA's prior consultation with representatives of

affected State, local and tribal governments, the nature of their

concerns, copies of any written communications from the governments,

and a statement supporting the need to issue the regulation. In

addition, E.O. 12875 requires EPA to develop an effective process

permitting elected officials and other representatives of State, local

and tribal governments to provide meaningful and timely input in the

development of regulatory proposals containing significant unfunded

mandates.

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that: (1) is determined to be ``economically

significant'' as defined under E.O. 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

The EPA interprets E.O. 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 final rule is not subject to E.O. 13045

because it approves a State program.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to OMB, in a separately identified section of the preamble to

the rule, a description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally

requires an agency to conduct a regulatory flexibility analysis of any

rule subject to notice and comment rulemaking requirements unless the

agency certifies that the rule will not have a significant economic

impact on a substantial number of small entities. Small entities

include small businesses, small not-for-profit enterprises, and small

governmental jurisdictions. This final rule will not have a significant

impact on a substantial number of small entities because SIP approvals

under section 110 and subchapter I, part D of the Act do not create any

new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Act

forbids EPA to base its actions concerning SIPs on such grounds. See

Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated annual costs to State,

local, or tribal governments in the aggregate; or to private sector, of

$100 million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves preexisting requirements under State or local law, and imposes

no new requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement

[[Page 36794]]

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. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by September 7, 1999. 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,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Transportation conformity, Transportation-air

quality planning, Volatile organic compounds.

Dated: June 9, 1999.

W. B. Hathaway,

Acting Regional Administrator, Region 6.

Title 40, part 52, of the Code of Federal Regulations is amended to

read as follows:

PART 52--[AMENDED]

Subpart SS--Texas

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

Authority: 42 U.S.C. 7401-7671 et seq.

2. In Sec. 52.2270 the table in paragraph (c) is amended by

removing section 114.27 and adding section 114.260 to read as follows:

Sec. 52.2270 Identification of plan.

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(c) * * *

EPA Approved Regulations in the Texas SIP

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State approval/ EPA approval

State citation Title/subject submittal date date Explanation

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Chapter 114 (Reg 4)--Control of Air Pollution from Motor Vehicles

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Section 114.260.............. Transportation 12/10/98 July 8, 1999, 1. No action is taken on the

Conformity. 64 FR 36794. portions of 30 TAC 114.260

that contain 40 CFR

93.102(c), 93.104(d)

,93.109(c)-(f), 93.118(e),

93.120(a)(2), 93.121(a)(1),

and 93.124(b).

2. TNRCC order (Docket No.98-

0418 RUL) November 23, 1998.

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[FR Doc. 99-17202 Filed 7-7-99; 8:45 am]

BILLING CODE 6560-50-U