Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations 57247

EPA APPROVAL REGULATIONS IN THE TEXAS SIP—Continued

State citation Title/subject

State submittal/approval

date

EPA approval

date Explanation

*******

Section 117.510 .............................. Compliance Schedule for Utility

Electric Generation in Ozone

Nonattainment Areas.

09/26/2001 [Insert 11–14–

01 Federal

Register cite.]

*******

Section 117.520 .............................. Compliance Schedule for Industrial, Commercial, and Institutional, Combustion Sources in

ozone Nonattainment Areas.

09/26/2001 [Insert 11–14–

01 Federal

Register cite.]

*******

Section 117.534 .............................. Compliance Schedule for Boilers,

Process Heaters, Stationary Engines, and Gas Turbines at

Minor Sources.

09/26/2001 [Insert 11–14–

01 Federal

Register cite.]

New.

*******

Section 117.570 .............................. Use of Emissions Credits for Compliance.09/26/2001 [Insert 11–14–

01 Federal

Register cite.]

*******

[FR Doc. 01–27584 Filed 11–13–01; 8:45 am]

BILLING CODE 6560–5–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[TX 28–1–7538; FRL–7092–4]

Approval and Promulgation of

Implementation Plans; Texas;

Houston/Galveston Ozone

Nonattainment Area Vehicle Miles

Traveled Offset Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: In this final action, the EPA

is approving, as part of the Texas State

Implementation Plan(SIP) for the

Houston/ Galveston Ozone

Nonattainment Area (HGA), the Vehicle

Miles Traveled (VMT) Offset Plan to

offset any growth in emissions from

growth in VMT, or number of vehicle

trips in the Houston/ Galveston severe

ozone nonattainment area. This is part

of the State’s effort to attain the National

Ambient Air Quality Standard (NAAQS)

for ozone. The State demonstrated that

emissions from increases in VMT or

numbers of vehicle trips within HGA

will not rise above an established

ceiling by 2007; thereby not requiring

additional transportation control

measure (TCM) offsets to prevent an

increase in VMT above the ceiling. The

requirements for the VMT Offset plan to

be consistent with the State’s

demonstration of Reasonable Further

Progress (RFP) and attainment are

addressed in a corresponding action for

the HGA area taken and published

separately in this Federal Register. This

action approves the proposed approval

published on July 10, 2001 (66 FR

35920). Comments made on the direct

final rule, published on July 10, 2001

(66 FR 35903) and withdrawn on

September 4, 2001 (66 FR 46220), are

addressed later in this action. This

action is being taken under sections 110

and 182 of the Federal Clean Air Act, as

amended (the Act, or CAA).

DATES: This final rule is effective on

December 14, 2001.

ADDRESSES: Copies of the relevant

material for this action are available for

inspection during normal business

hours at the following locations. Persons

interested in examining these

documents should make an

appointment at least 24 hours before the

visiting day.

Environmental Protection Agency,

Region 6, Air Planning Section (6PD–L),

1445 Ross Avenue, Suite 700, Dallas, TX

75202–2377.

Texas Natural Resource Conservation

Commission, 12100 Park 35 Circle,

Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms.

Brooke M. Ivener at (214) 665–7362 or

Mr. Bill Deese at (214) 665–7253, Air

Planning Section (6PD–L), EPA Region

6, Suite 700, 1445 Ross Avenue, Dallas,

Texas 75202–2733.

SUPPLEMENTARY INFORMATION:

Throughout this document ‘‘we,’’ ‘‘us,’’

and ‘‘our’’ means EPA.

Table of Contents

1. What Are We Approving?

2. Response to Comments on the Direct Final

Action.

3. Final Action.

4. Administrative Requirements.

1. What Are We Approving?

The EPA is approving a new SIP

revision for VMT Offset submitted by

the State on May 17, 2000. Specifically,

we are approving the VMT Offset SIP,

submitted by the State on August 25,

1997 and with minor, non-substantive

revisions submitted on May 17, 2000.

For information regarding our analysis

57248 Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations

1See, e.g., 62 FR 23410, 23417 (Apr. 30, 1997)

(proposed approval of New Jersey’s SIP); 61 FR

53624, 53624–25 (Oct. 15, 1996) (direct final

approval of New York’s SIP); 61 FR 51214, 51216

(Oct. 1, 1996) (direct final approval of New York’s

SIP); 60 FR 48896, 48897 (Sept. 21, 1995) (final

approval of Illinois’ SIP); 60 FR 38718, 38719–20

(July 28, 1995) (final approval of Indiana’s SIP); 60

FR 2565, 2566–67 (January 10, 1995) (proposed

approval of Wisconsin’s SIP).

of the State submittal, please refer to the

Technical Support Document for this

action.

Section 182(d)(1)(A) of the Act directs

states containing ozone nonattainment

areas classified as severe, pursuant to

section 181(a) of the Act, to adopt

transportation control strategies and

TCMs to offset increases in emissions

resulting from growth in VMT or

numbers of vehicle trips, and to obtain

reductions in motor vehicle emissions

as necessary (in combination with other

emission reduction requirements) to

comply with the Act’s Reasonable

Further Progress (RFP) milestones (CAA

sections 182(b)(1) and 182(c)(2)(B)) and

attainment demonstration requirements

(CAA section 182(c)(2)(A)). The EPA

General Preamble to Title I of the CAA

(57 FR 13498, 13521–13523, April 16,

1992) explains our interpretation

regarding how states may demonstrate

that the VMT requirement is satisfied.

(We incorporate that discussion by

reference.)

In summary, the purpose of the VMT

offset requirement is to prevent growth

in motor vehicle emissions from

cancelling out the emission reduction

benefits of federally mandated programs

in the Act. Sufficient measures must be

adopted so projected motor vehicle

volatile organic compound (VOC)

emissions will stay beneath a ceiling

level established through modeling of

mandated transportation-related

controls. When growth in VMT and

vehicle trips would otherwise cause a

motor vehicle emissions upturn, this

upturn must be prevented by TCMs. If

projected total motor vehicle emissions

during the ozone season in one year are

not higher than during the previous

ozone season due to the control

measures in the SIP, the VMT Offset

requirement is satisfied.

For several years, we have

consistently implemented this

interpretation in response to several

states’ submissions of VMT SIPs under

section 182(d)(1)(A) of the Act.1 We first

announced our intent to apply this

longstanding interpretation to the

HGA’s SIP in 1997. See 62 FR 54598

(October 21, 1997) (proposed

disapproval of HGA SIP). We similarly

followed the General Preamble’s

approach in the July 10, 2001 direct

final rule that would have approved the

HGA SIP (see 66 FR at 35903, 35904).

The August 25, 1997 VMT SIP

submittal from the State includes a

projection of the mobile source

emissions profile for HGA through 2007,

the date by which the HGA area is to

attain the NAAQS for ozone. The

August 25,1997 submittal fulfills the

first required element under CAA

section 182(d)(1)(A)for a VMT Offset

Plan in the HGA severe ozone

nonattainment area. The second and

third required elements under section

182(d)(1)(A) are fulfilled in the

corresponding action addressing RFP

and attainment for the HGA area taken

and published separately in this Federal

Register.

2. Response to Comments on the Direct

Final Action

On July 10, 2001, the EPA published

a direct final rule approving the Texas

VMT Offset SIP, with the condition that

if any adverse comments were received

by the end of the public comment

period on August 9, 2001 the direct final

rule would be withdrawn, and that we

would respond to the comments in

taking final action on the proposal to

approve the Texas VMT Offset SIP,

published concurrently on July 10,

2001,(66 FR 35920). One set of

comments was received from

Environmental Defense (ED). The

following summarizes the comments

and EPA’s response to these comments:

Comment 1: The comment argues that

section 182(d)(1)(A) of the Act requires

offsets for increased emissions

attributable to all growth in VMT above

1990 levels, and that EPA is required by

the House Report language (H. R. No.

101–490, Part I, 101st Cong., 2nd

session at 242) to ensure emission

reductions despite an increase in VMT.

The comment states that EPA is acting

inconsistently with the law by not

applying ‘‘the guidance provided by the

House committee report in the review of

VMT Offset SIPs[.]’’ In other words, the

comment challenges the longstanding

interpretation of section 182(d)(1)(A)

that we discussed in the General

Preamble and in our other rulemaking

actions approving states’ VMT SIPs.

Response: As discussed in the General

Preamble, EPA believes that section

182(d)(1)(A) of the Act requires the State

to ‘‘offset any growth in emissions’’

from growth in VMT, but not, as the

comment suggests, all emissions

resulting from VMT growth. See 57 FR

at 13522–23. As we explained in

response to similar comments objecting

to our application of the General

Preamble’s approach when approving

Illinois’ and Indiana’s SIPs, the purpose

is to prevent a growth in motor vehicle

emissions from canceling out the

emission reduction benefits of the

federally mandated programs in the Act.

See 60 FR at 48898; 60 FR at 38720–21.

The baseline for emissions is the 1990

level of vehicle emissions and the

subsequent reductions in emission

levels required to reach attainment with

the NAAQS for ozone. Thus, the

anticipated benefits from the mandated

measures such as the Federal motor

vehicle pollution control program,

lower Reid vapor pressure, enhanced

inspection and maintenance and all

other motor vehicle emission control

programs are included in the ceiling

line calculations used by Texas in the

VMT Offset SIP. Appendix B, Table 2,

in the Texas submittal shows how

emissions will decline substantially and

will not begin to turn up, nor does it

reach the ceiling established by the

mandated controls. Emission reductions

are expected every year through the year

2007.

Our approach is consistent with the

purposes Congress had in enacting

section 182(d)(1)(A). The ceiling line

level decreases from year to year as the

state implements various control

measures, and the decreasing ceiling

line prevents an upturn in mobile

source emissions. Dramatic increases in

VMT that could wipe out the benefits of

motor vehicle emission reduction

measures will not be allowed and will

trigger the required implementation of

TCMs. This prevents mere preservation

of the status quo, and ensures emissions

reductions despite an increase in VMT

or number of vehicle trips. To prevent

future growth changes from adversely

impacting emissions from motor

vehicles, States are required under

section 182(c)(5) of the Act to track

actual VMT and to periodically

demonstrate that the actual VMT is

equal to or less than the projected VMT,

with TCMs required to offset VMT that

is above the projected levels.

Under the commenter’s approach to

section 182(d)(1)(A), Texas would have

to offset VMT growth even while

vehicle emissions are declining.

Although the statutory language could

be read to require offsetting any VMT

growth, EPA believes that the language

can also be read so that only actual

emissions increases resulting from VMT

growth need to be offset. The statute by

its own terms requires offsetting of ‘‘any

growth in emissions from growth in

VMT.’’ It is reasonable to interpret this

language as requiring that VMT growth

must be offset only where such growth

results in emissions increases from the

motor vehicle fleet in the area. Our

interpretation of the language of section

Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations 57249

2As noted above, EPA has applied this

interpretation since the enactment of the 1990

amendments to the Clean Air Act adding section

182(d)(1)(A), even in response to adverse comments

submitted on other rulemaking actions. See, e.g., 60

FR 48898 (final approval of Illinois’’ SIP) and 60 FR

39720–39721 (final approval of Indiana’s SIP).

3See, e.g., 61 FR 53624–25; 61 FR 51215; 60 FR

48896; 60 FR 38719; 60 FR 22284, 22285 (May 5,

1995) (final approval of Wisconsin’s SIP); and 60 FR

2565–2567.

182(d)(1)(A) is entitled to deference.

Chevron U.S.A., Inc. v. NRDC, 467 U.S.

837, 842–44 (1984).

While it is true that the language in

the House Committee Report could

appear to support the ED’s

interpretation of the statutory language,

such an interpretation would have

drastic implications for Texas if the

State were forced to impose such

draconian control measures as

mandatory no-drive restrictions to fully

offset the effects of increasing VMT if

the area were forced to ignore the

beneficial impacts of all vehicle tailpipe

and alternative fuel controls. Although

the original authors of this provision

and of the House Committee Report on

this provision may in fact have intended

this result, EPA does not believe that the

Congress as a whole, or even the full

House of Representatives, believed at

the time it voted to pass the CAA

Amendments that the words of this

provision would impose such severe

restrictions. There is no further

legislative history on this aspect of the

provision, nor was it discussed at all by

any member of Congress during

subsequent legislative debate and

adoption.

Given the susceptibility of the

statutory language to these two

alternative interpretations, EPA believes

it is the Agency’s role in administering

the statute to take the interpretation

most reasonable in light of the practical

implications of such interpretation, and

the purposes and intent of the statutory

scheme as a whole. In the context of the

intricate planning requirements

Congress established in title I to bring

areas towards attainment of the ozone

standard, and in light of the absence of

any discussion of this aspect of the VMT

Offset provision by the Congress as a

whole (either in floor debate or in the

Conference Report), EPA has

consistently concluded that the

appropriate interpretation of section

182(d)(1)(A) requires offsetting VMT

growth only when such growth would

result in actual emissions increases.2

Comment 2: The comment asserts that

the VMT Offset SIP submitted by the

State ‘‘does not contain sufficient

measures to limit motor vehicle

emissions to the levels needed for

attainment’’ because ‘‘the area has not

adopted sufficient control measures to

ensure that total area emissions will

attain the NAAQS.’’ The comment

argues that EPA has not adequately

assessed the VMT Offset SIP against the

statutory requirement that the SIP

provide adequate enforceable control

measures. In effect the comment asserts

that EPA may not approve the HGA’s

VMT SIP until the HGA is able to

demonstrate that its entire SIP will

attain the NAAQS.

Response: As an initial matter, EPA

does believe the area has an approvable

RFP and attainment demonstration SIP,

and we refer you to that corresponding

final action for the HGA area taken and

published separately in this Federal

Register. The inclusion of the RFP and

attainment demonstration in the

corresponding final action satisfies the

second and third elements of VMT

Offset in 182(d)(1)(A), as discussed

below.

As described in the General Preamble

and above, the purpose of section

182(d)(1)(A) of the Act is to prevent

growth in motor vehicle emissions from

cancelling out the emissions reduction

benefits of the federally mandated

programs in the Act. EPA believes it is

appropriate to interpret the VMT Offset

provisions of the Act to account for how

States can practicably comply with each

of the provision’s elements, as discussed

in detail below.

The VMT Offset provision requires

that States submit by November 15,

1992 specific enforceable

Transportation Control Measures

(TCMs) and Strategies to offset any

growth in emissions from growth in

VMT or number of vehicle trips,

sufficient enough to allow total area

emissions to comply with the RFP and

attainment requirements of the Act. The

EPA has observed that these three

elements (i.e. offsetting growth in

mobile source emissions, attainment of

the RFP reduction, and attainment of

the ozone NAAQS) create a timing

problem of which Congress was perhaps

not fully aware.3 The SIP submittals

showing attainment of the 1996 15

percent Rate-of-Progress (ROP) and the

post-1996 RFP and NAAQS attainment

demonstration are broader in scope than

growth in VMT or in numbers of vehicle

trips in that they necessarily address

emissions trends and control measures

for non motor vehicle emissions sources

and, in the case of attainment

demonstrations, involve complex

photochemical modeling studies. It was

neither practicable nor reasonable to

expect that the subsequently required

submissions could be developed and

implemented so far ahead of schedule as

to effectively influence the VMT Offset

submission.

The EPA does not believe that

Congress intended the VMT Offset

provisions to advance the dates for these

broader submissions. Consequently,

EPA believes it is appropriate to

interpret the Act to provide for staged

deadlines for submittal of the elements

of the VMT Offset SIP.

Section 182(d)(1)(A) sets forth three

elements that must be met by a VMT

Offset SIP. Under EPA’s interpretation,

the three required elements of section

182(d)(1)(A) are separable, and could be

divided into three separate submissions

that could be submitted on different

dates. Section 179(a) of the Act, in

establishing how EPA would be

required to apply mandatory sanctions

if a State fails to submit a full SIP, also

provides that the sanctions clock starts

if a State fails to submit one or more SIP

elements, as determined by the

Administrator. The EPA believes that

this language delegates to EPA the

authority to determine that the different

elements of the SIP submissions are

separable. Moreover, given the

continued timing problems addressed

above, EPA believes it is appropriate to

allow States to separate the VMT Offset

SIP into three elements, each to be

submitted at different times: (1) The

initial requirement to submit TCMs that

offset growth in emissions; (2) the

requirement to comply within the 15

percent periodic reduction requirement

of the Act; and (3) the requirement to

comply with the post-1996 periodic

reduction and attainment requirements

of the Act.

Under this approach, the first

element—the emissions growth offset

element—was due on November 15,

1992. The EPA believes this element is

not necessarily dependent upon the

development of the other elements. The

State could submit the emissions growth

offset element independent of an

analysis of that element’s consistency

with the RFP or attainment

requirements of the Act. Emissions

trends from other sources need not be

considered to show compliance with

this particular offset element. The first

element requires that a State submit a

revision that demonstrates the trend in

motor vehicle emissions from a 1990

baseline to the year for attaining the

NAAQS for ozone, that year is 2007. As

described in the General Preamble, and

reiterated above, the purpose is to

prevent growth in motor vehicle

emissions from canceling out the

emission reduction benefits realized

from the federally mandated programs

in the Act. The EPA interprets section

57250 Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations

182(d)(1)(A) to require that sufficient

measures be adopted so that projected

motor vehicle VOC emissions will never

be higher during the ozone season in

one year than during the ozone season

the year before. When growth in VMT

and vehicle trips would otherwise cause

a motor vehicle emissions upturn, this

upturn must be prevented. The

emissions level at the point of potential

upturn becomes a ceiling on motor

vehicle emissions. This requirement

applies to projected emissions in the

years between the submission of the SIP

revision and the attainment deadline

and is above and beyond the separate

requirements for the RFP and

attainment demonstration.

Comment 3. The comment argues that

EPA is allowing emissions reduction

credit for elements contributing to

reduced VMT and reduced emissions

‘‘without requiring that such measures

be enforceable obligations of the SIP.’’

The comment claims that EPA has

allowed Texas to base its calculations

for compliance ‘‘on emissions expected

from the implementation of all facilities

and services included in the H–GAC

regional transportation plan and TIP

prior to the attainment date, and not

based solely on the TCMs contained in

the VMT SIP revision.’’

Response: EPA allowed Texas to

calculate compliance with the emissions

ceiling line using only the TCMs

contained in the VMT SIP revision as

further described below. The only TCMs

EPA allowed Texas to receive credit for

are those included in the 15 Percent

ROP Plan submitted on July 24, 1996.

See the corresponding final action for

the HGA area taken and published

separately in this Federal Register, see

also the Final Conditional Interim Rule

(63 FR 62943) and the Proposed

Conditional Interim Rule (62 FR 37175,

37180). These TCMs have been included

in the VMT Offset SIP as measurable

emission reduction credits. As is stated

in the direct final rule to which this

comment applies (66 FR 35903), the

TCMs approved for emission reduction

credit are as follows in Table 1, with

their associated emission benefits, as

submitted in the VMT Offset SIP State

submittal and as corresponds to

Appendix 7K of the 15 Percent ROP

Plan submittal:

TABLE 1.—TRANSPORTATION CONTROL MEASURES APPROVED FOR VMT OFFSETS

TCM Quantity Emissions benefit in 1996

High Occupancy Vehicle Lanes ............................................... 14.7 miles ............................... Approximately 424 pounds of VOC per day.

Park-and-Ride Lots .................................................................. 3,745 parking spaces ............. Approximately 69 pounds of VOC per day.

Arterial Traffic Management Systems ...................................... 41 miles .................................. Approximately 77 pounds of VOC per day.

Computer Transportation Management Systems .................... 22.2 miles ............................... Approximately 169 pounds of VOC per day.

Signalization ............................................................................. 2.9 miles ................................. Approximately 3 pounds of VOC per day.

............................................ Total: approximately 742 pounds per day =

0.36 tons per day.

These emission benefits are

enforceable, as they are approved in the

15 Percent ROP SIP and all TCMs

included in the SIP are enforceable by

rule. The direct final rule also stated

that no credit is taken in the SIP for any

additional TCMs. Thus the lower curve,

depicting the mandated controls, the

Motorist Choice I/M Program, and

TCMs, includes only the enforceable

TCMs through FY 1996 described above.

The TCMs for FY 1999 and FY 2007,

although explained, are not credited for

the VMT Offset SIP demonstrations. In

addition, although the State chose to

include the five 1996 TCMs as

enforceable measures, the analysis

shows that even these measures are not

necessary to offset emissions from

growth in VMT.

Modeling of the lower curve in Graph

1 of the Technical Support Document, at

no time, shows the emission estimates

meeting or exceeding the lowest point

in the upper curve, reached in 2007.

The upper curve reached its lowest

point in 2007, so there is no upward

turn demonstrated in this instance.

Usually the low point establishes the

ceiling, but no true ceiling is established

because there is no upward turn of the

curve by which to identify the lowest

point. Since the curve does not turn

upward (indicating the control programs

are efficiently offsetting increases from

growth in VMT) no TCMs would be

necessary to offset emissions from

growth in VMT. The State included the

five TCMs, although they are not

necessary for this plan to be approved.

Three comments were also received in

response to the proposed disapproval

(referenced above) of the 1993 and 1994

submittals which comprised the VMT

Offset requirement. Two comments

supported the proposed disapproval

because the SIP relied upon the

repealed I/M and ETR Programs. The

SIP submittal being acted upon in this

action does not rely on those two

programs. A third comment supported

approval of the August 1997 VMT Offset

submittal.

3. Final Action

The EPA has determined that Texas

has adequately demonstrated that

emissions from growth in VMT and

number of vehicle trips will not rise

above the ceiling, or low point shown as

the effects of required reductions from

mandatory programs. Therefore, based

on the State’s submittal and in

consideration of the comments received

in response to the proposal, we are

approving the VMT Offset SIP,

submitted by the State on August 25,

1997 and with minor, non-substantive

revisions submitted on May 17, 2000,

under sections 110 and 182 of the Act,

as meeting the requirements of the first

element of section 182(d)(1)(A). Please

see the corresponding final action for

the HGA area on RFP and attainment

taken and published separately in this

Federal Register for EPA’s conclusions

regarding the State’s satisfaction of the

second and third elements of section

182(d)(1)(A).

4. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

‘‘Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use’’ (66 FR 28355, May

22, 2001). This action merely approves

state law as meeting Federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, I hereby certify

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 preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations 57251

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (Public Law 104–4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves a state rule implementing a

Federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

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),

because it is not economically

significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the 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 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. section 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. section 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 January 14, 2002.

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, Hydrocarbons

Incorporation by reference,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: October 15, 2001.

Gregg A. Cooke,

Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart SS—Texas

2. In § 52.2270, paragraph (e), in the

table entitled ‘‘EPA Approved

Nonregulatory Provisions and QuasiRegulatory Measures in the Texas SIP,’’

one entry is added to the end of the

table to read as follows:

§ 52.2270 Identification of Plan.

* * * * *

(e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP

Name of SIP provision Applicable geographic or

nonattainment area

State submittal date/

effective

date

EPA approval date Comments

*******

Vehicle Miles Traveled Offset Plan .......... Houston/Galveston Ozone

nonattainment area.

05/09/2000 [Insert 11/14/2001 Federal

Register cite.].

Originally submitted 11/12/

93 and revised 11/06/94,

8/25/97, and 05/17/00.

57252 Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / Rules and Regulations

1As discussed subsequently in this notice, we are

not acting on 30 TAC Chapter 101, Subchapter H,

Division 4 and neither DERCs nor MDERCs can be

utilized in the MECT program prior to our approval

of the rule unless approved as a site-specific SIP

revision.

[FR Doc. 01–27585 Filed 11–13–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[TX–133–1–7543; FRL–7092–3]

Approval and Promulgation of Air

Quality State Implementation Plans

(SIP); Texas Mass Emissions Cap and

Trade Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final Rule.

SUMMARY: The EPA is approving the

Texas Mass Emissions Cap and Trade

(MECT) program as a revision to the

Texas State Implementation Plan (SIP).

The program was submitted on

December 22, 2000. The MECT program

will contribute to attainment of the 1-

hour ozone National Ambient Air

Quality Standard (NAAQS) in the HGA

ozone nonattainment area. The EPA is

approving these revisions to the Texas

SIP to regulate emissions of NOX in

accordance with the requirements of the

Federal Clean Air Act (the Act).

The EPA proposed approval of the

Texas MECT program on July 23, 2001

on the condition that Texas resolve

eight issues. The State revised the

MECT rule to adequately address the

EPA issues identified in the proposed

rulemaking and submitted these

revisions to EPA as a SIP revision which

EPA is approving in this action by

parallel processing. Comments were

received on the proposed rulemaking

from Environmental Defense, Inc. on

September 22, 2001, from Baker and

Botts L.L.P. representing the Business

Coalition for Clean Air Appeal Group on

August 13, 2001, and from Reliant

Energy, Inc. on August 13, 2001. The

major comments regarded the use of

credits from other trading programs for

MECT compliance, inflation of the cap,

undermining of the attainment

demonstration, emissions monitoring

and program evaluations. After

reviewing the comments and the State

response to the eight issues raised in the

proposed rulemaking, EPA has

concluded that the Texas MECT

program fully satisfies all relevant

guidance and the Clean Air Act.

DATES: This final rule is effective on

December 14, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the following

locations. Persons interested in

examining these documents should

make an appointment with the

appropriate office at least 24 hours

before the visiting day. Environmental

Protection Agency, Region 6, Air

Planning Section (6PD-L), 1445 Ross

Avenue, Suite 700, Dallas, Texas 75202–

2733. Texas Natural Resource

Conservation Commission, 12100 Park

35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Merrit H. Nicewander, Air Planning

Section (6PD-L), EPA Region 6, 1445

Ross Avenue, Dallas, Texas 75202–2733,

telephone (214) 665–7519.

(nicewander.merrit@epa.gov)

SUPPLEMENTARY INFORMATION: This

supplemental information section is

organized as follows:

I. What action is EPA taking?

II. What did EPA propose?

III. What comments did EPA receive?

IV. How did Texas respond to prerequisites

for approval?

V. What are EPA’s responses to comments?

VI. Administrative requirements

Throughout this document ‘‘we,’’ ‘‘us,’’

and ‘‘our’’ means EPA.

I. What action Is EPA Taking?

We are granting final approval of the

nitrogen oxides ( NOX) Mass Emissions

Cap and Trade program for the Houston/

Galveston (HGA) one-hour ozone

nonattainment area. The rule was

adopted and submitted as a SIP revision

by letters of the Governor dated

December 22, 2000 and June 15, 2001.

We proposed approval of the program at

66 FR 38231 on July 23, 2001 through

parallel processing. Other than changes

as referenced in the proposed approval,

there were no significant changes

between the version proposed on July

23, 2001 and the version submitted on

October 4, 2001. On September 26, 2001

the State adopted as final rules

amendments to 30 TAC Chapter 101

which were proposed on May 30, 2001

with certain revisions. On October 4,

2001 Texas Governor Rick Perry

submitted a letter requesting EPA to

process the September 26, 2001 final

rule amendments to 30 TAC, Chapter

101, as a revision to the MECT SIP. The

MECT rule is one element of the control

strategy for the HGA nonattainment area

to comply with the requirements of the

Clean Air Act (CAA) and achieve

attainment for ozone.

The HGA ozone nonattainment area is

required to attain the one-hour ozone

standard of 0.12 parts per million (ppm)

by November 15, 2007. The area will

need to reduce nitrogen oxides ( NOX)

to reach attainment with the one-hour

standard. The MECT emissions banking

rule was evaluated as an integral

component of the HGA control strategy

to reduce NOX emissions. The rule

submitted by the TNRCC is the Mass

Emission Cap & Trade Program (30

Texas Administrative Code (TAC)

Chapter 101, Subchapter H, Division 3).

The MECT regulation is found at

sections 101.350 through 101.363. As

noted in our proposed approval, we are

not approving sections 101.353(a)(3)(B)

and (D). With the MECT rule revisions

submitted on October 4, 2001, the State

adopted definitions found at 30 TAC

Section 101.1. These revisions to

definitions were proposed on June 15,

2001. No comments were received on

this section. We are also granting final

approval of 30 TAC 101.1.

The MECT program is mandatory for

stationary facilities that emit NOX in the

HGA ozone nonattainment area (at sites

that have a collective design capacity of

10 tons per year or more) and which are

subject to the TNRCC NOX rules as

found at 30 TAC Chapter 117. NOX is

a precursor gas that reacts with volatile

organic compounds (VOCs) in the

presence of sunlight to form groundlevel ozone. The program sets a cap on

NOX emissions beginning on January 1,

2002 with a final reduction to the cap

occurring in 2007. Facilities are

required to meet NOX allowances on an

annual basis. Facilities may purchase,

bank or sell their allowances. The

program has a provision to allow a

facility to use emission reduction

credits (ERCs), discrete emission

reduction credits (DERCs) and mobile

discrete emission reduction credits

(MDERCs) in lieu of allowances if they

are generated in the HGA area.1

II. What Did EPA Propose?

EPA proposed to approve the Texas

Mass Emission Cap and Trade program

provided that TNRCC took eight specific

steps. The EPA proposed approval of

the MECT program was based upon the

prerequisites that TNRCC must: (1)

Specify the number of days of violation

if an annual cap is exceeded, (2) revise

the rule to require that deviation from

monitoring protocols be approved by

both the TNRCC Executive Director and

EPA, (3) provide public access to

production data necessary to calculate

emissions, (4) provide for missing data

provisions when monitoring equipment

is not functioning properly, (5) clarify

that allowances used for offsets will be

obtained for the life of the new source,

(6) commit to require notification of the