ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2006-0988; FRL - l.

Approval and Promulgation ofAir Quality Implementation Plans; Texas; Control of Air

Pollution from Motor Vehicles

AGENCY: Environmental Protection Agency (EPA)

ACTION: Direct final rule.

SUMMARY: The EPA is approving revisions to the Texas State Implementation Plan (SIP).

We are approving revisions to Title 30 ofthe Texas Administrative Code (TAC), Chapter 114,

which the State submitted on May 15, 2006, October 10, 2006, January 17, 2008, and February

28,2008. These revisions establish the Rebate Grant Process and the Texas Clean School Bus

Program, amend the Texas Emissions Reduction Plan (TERP), and amend the Locally Enforced

Motor Vehicle Idling Limitations. The EPA is approving these revisions pursuant to section 110

ofthe Clean Air Act (CAA).

DATES: This direct final rule will be effective [Insert date 60 days from date of publication

in the Federal Register] without further notice unless EPA receives relevant adverse comments

by [Insert date 30 days from date of publication in the Federal Register]. Ifadverse

comments are received, EPA will publish a timely withdrawal ofthe direct final rule in the

Federal Register informing the public that the rule will not take effect.
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ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-0AR-2006-0988,

by one ofthe following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Please follow the online

instructions for submitting comments.

• EPA Region 6 "Contact Us" Web site: http://epa.gov/region6/r6comment.htm. Please

click on "6PD (Multimedia)" and select "Air" before submitting comments.

• E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

e-mail to the person listed in the FOR FURTHER INFORMATION CONTACT

section below.

• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-

665-7263.

Mail: MrGuy DonaldsonChief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas

75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4

p.m. weekdays, and not on legal holidays. Special arrangements should be made for

deliveries of boxed information.

Instructions: Direct your comments to Docket No. EPA-R06-0AR-2006-0988. EPA's policy is

that all comments received will be included in the public docket without change and may be

made available online at www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential Business Information (CBI)
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or other information whose disclosure is restricted by statute. Do not submit information that

you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The

www.regulations.gov web site is an "anonymous access" system, which means EPA will not

know your identity or contact information unless you provide it in the body of your comment. If

you send an e-mail comment directly to EPA without going through www.regulations.gov your

e-mail address will be automatically captured and included as part ofthe comment that is placed

in the public docket and made available on the Internet. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD-ROM you submit. IfEPA cannot read your comment due to

technical difficulties and cannot contact you for clarification, EPA may not be able to consider

your comment. Electronic files should avoid the use ofspecial characters, any form of

encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although

listed in the index, some information is not publicly available, e.g., CBI or other information

whose disclosure is restricted by statute. Certain other material, such as copyrighted material,

will be publicly available only in hard copy. Publicly available docket materials are available

either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PDL), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

The file will be made available by appointment for public inspection in the Region 6 FOIA

Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.

Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph

below or Mr. Bill Deese at 214-665-7253 to make an appointment. Ifpossible, please make the

appointment at least two working days in advance of your visit. There will be a fee of 15 cents
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per page for making photocopies of documents. On the day ofthe visit, please check in at the

EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection during official business hours,

by appointment, at the Texas Commission on Environmental Quality (TCEQ), Office of Air

Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning Section

(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas,

Texas 75202-2733, telephone 214-665-7241 ;fax number 214-665-7263; e-mail address

medina.dayana@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us," and "our"

means EPA.

Outline

I. What Action is EPA Taking?

II. Background

III. What Did the State Submit?

A. The Rebate Grant Process

B. Texas Clean School Bus Program

C. The Texas Emissions Reduction Plan (TERP)

D. Locally Enforced Motor Vehicle Idling Limitations

IV. Final Action

V. Statutory and Executive Order Reviews
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I. What Action is EPA Taking?

Today we are approving revisions to the Texas SIP that amend 30 TAC Chapter 114,

Control of Air Pollution from Motor Vehicles. These revisions consist ofthe new Rebate Grant

Process and the new Texas Clean School Bus Program, and additional revisions to the TERP and

Locally Enforced Motor Vehicle Idling Limitations, as submitted to EPA by the TCEQ on May

15,2006, October 10,2006, January 17,2008, and February 28, 2008. Some ofthe revisions we

are approving in this rulemaking are administrative in nature - they identify an acronym and

renumber a sequence of paragraphs. A majority ofthe revisions, however, are substantive in

nature. We are approving these revisions in accordance with section 110 ofthe CAA.

The EPA is publishing this rule without prior proposal because we view this as a

noncontroversial amendment and anticipate no relevant adverse comments. However, in the

proposed rules section ofthis Federal Register publication, we are publishing a separate

document that will serve as the proposal to approve the SIP revisions ifrelevant adverse

comments are received. This rule will be effective on [FEDERAL REGISTER OFFICE:

insert date 60 days from date of publication in the Federal Register] without further notice

unless we receive relevant adverse comments by [FEDERAL REGISTER OFFICE: insert

date 30 days from date of publication in the Federal Register]. 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 adverse

comments on an amendment, paragraph, or section ofthis rule and ifthat provision may be
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severed from the remainder ofthe rule, we may adopt as final those provisions ofthe rule that

are not the subject of an adverse comment.

II. Background

Section 110 ofthe CAA requires states to develop air pollution regulations and control

strategies to ensure that air quality meets the National Ambient Air Quality Standards (NAAQS)

established by EPA. The NAAQS are established under section 109 ofthe CAA and currently

address six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, particulate

matter, and sulfur dioxide. A SIP is a set of air pollution regulations, control strategies, other

means or techniques, and technical analyses developed by the state, to ensure that air quality in

the state meets the NAAQS. It is required by section 110 and other provisions ofthe CAA. A

SIP protects air quality primarily by addressing air pollution at its point of origin. A SIP can be

extensive, containing state regulations or other enforceable documents, and supporting

information such as emissions inventories, monitoring networks, and modeling demonstrations.

Each state must submit regulations and control strategies to EPA for approval and incorporation

into the federally-enforceable SIP.

The Texas SIP includes a variety of control strategies, including the TERP, a program

that provides funding for owners and operators to reduce emissions from heavy-duty diesel

equipment used in areas that are not meeting the NAAQS for ozone.

1 On October 10, 2006, the

TCEQ submitted SIP revisions to EPA to revise the existing TERP program by establishing the

Rebate Grant Process and the Texas Clean School Bus Program. The Rebate Grant Process will

provide fast and simple access to rebate grants under the TERP. The Texas Clean School Bus

I Although the TERP has several different components, the part ofthe plan that EPA approved into the Texas SIP is

the Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. See 70 FR 48647 (August

19,2005).
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Program also revises the TERP to fund efforts by school districts to improve the health of

children by reducing emissions of diesel exhaust from school buses.

On January 17,2008, the State submitted SIP revisions that further amend the TERP.

These revisions authorize the TCEQ to allow travel on highways and roadways designated by the

TCEQ to count toward the requirement that grant-funded vehicles operate at least 75 percent of

the annual miles in the eligible counties; lower the cost-effectiveness criteria from $13,000 per

ton ofNOx reduced to $15,000 per ton ofNOx reduced; and remove the option that vehicles,

equipment, and engines replaced under the program may be removed from the State in lieu of

being recycled or scrapped.

On May 15,2006, the State submitted SIP revisions addressing Locally Enforced Motor

Vehicle Idling Limitations. The EPA first approved revisions to the Texas SIP that incorporated

Locally Enforced Motor Vehicle Idling Limitations on April 11, 2005 (70 FR 18308), for use as

a control strategy to reduce ground-level ozone. The current motor vehicle idling rules limit the

idling time for certain motor vehicles. The SIP revisions submitted on May 15, 2006, prohibit

idling of a vehicle within a school zone or within 1,000 feet of a public school during operating

hours; modify the exemption that applies to motor vehicles with a gross vehicle weight rating of

14,000 pounds or less; clarify the intent ofthe rule; and add exemptions to allow idling the

primary propulsion engine of a vehicle to provide air conditioning while using the vehicle to

perform an essential function related to roadway construction or maintenance, and when

powering an air conditioner in the vehicle's sleeper berth for a government-mandated rest period.

On February 28, 2008, the State submitted revisions to the SIP that further amend Locally

Enforced Motor Vehicle Idling Limitations. The February 28, 2008 SIP revisions modify the

exemption that applies to motor vehicles with a gross vehicle weight rating of 14,000 pounds or
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less; extend the expiration date oftwo subsections to September 1, 2009; prohibit idling within

1,000 feet of hospitals and residential areas; and restrict idling of vehicles with sleeper berths

when there is a vehicle heating and air conditioning hook-up facility located within two miles.

Currently, there are no federal regulations governing idling time for motor vehicles.

More detail on each ofthese revisions is included below and in the Technical Support

Document (TSD). The TSD is provided in the docket for this rulemaking.'

We note one more SIP revision, submitted by the State on October 4,2001, which is not

included in the TSD for this rulemaking. The State submitted revisions to the SIP on October 4,

2001, that included the repeal of 30 TAC 114.507 (Exemptions). Section 114.507 prohibited a

motor vehicle with a gross vehicle weight rating greater than 14,000 pounds from idling more

than five consecutive minutes in the Houston-Galveston-Brazoria area, from April 1 through

October 31 of each calendar year. EPA did not take action on this portion ofthe revision, but on

September 6, 2006, EPA approved a revision to the Texas SIP that removed from the SIP

"Division 1: Motor Vehicle Idling Limitations," which included section 1)4.507(see 71 FR

52670). Therefore, that portion ofthe State's October 4,2001 submittal that pertains to section

114.507 will not be acted on by EPA because it is superseded by the September 6, 2006

rulemaking.

III. What Did the State Submit?

A. The Rebate Grant Process

The Rebate Grant Process is new within 30 TAC Chapter 114, Control of Air Pollution

from Motor Vehicles; Subchapter K, Mobile Source Incentive Programs; Division 3, Diesel

2 The docket for this rulemaking, which includes a TSD, is available at www.regulations.gov. The docket number is

EPA-R06-0AR-2006-0988.
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Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. The rule was

adopted by the State on September 20, 2006, and submitted to EPA for approval into the SIP on

October 10, 2006. The Rebate Grant Process is codified at 30 TAC 114.624 and will provide for

fast and simple access to TERP funds, using a streamlined process to award standardized rebates

for designated project types. The State may award rebate grants for a specific region or

statewide, limit or expand the project types to further the goals ofthe program, and designate

another entity to administer the grants. The EPA is approving this revision to the SIP because it

is consistent with section 110(1) ofthe CAA. The EPA notes, however, that in the DFW and

Houston SIPs, certain commitments have been approved into the SIP for reducing NOxas

necessary for the areas to reach attainment.' Texas must continue to insure that these

commitments are met.

B. Texas Clean School Bus Program

The Texas Clean School Bus Program is a new division in 30 TAC Chapter 114, Control

ofAir Pollution from Motor Vehicles; Subchapter K, Mobile Source Incentive Programs;

Division 4, Texas Clean School Bus Program. The rule was adopted by the State on September

20, 2006, and submitted to EPA for approval into the SIP on October 10, 2006.

There are five new sections within Division 4. Section 114.640 (Definitions) identifies

and defines the terms used in the Texas Clean School Bus Program: (1). Diesel exhaust, (2).

Incremental Cost, (3). Qualifyingfuel, (4). Repower, and (5). Retrofit. Section 114.642

(Applicability) establishes program eligibility for school districts and charter schools statewide;

the program is not limited to nonattainment areas. This section also allows regional planning

organizations, such as Councils of Government and private non-profit organizations, to apply for

3 For specific commitments that have been established for reducing NOx, as necessary, for DFW and Houston to

reach attainment, please see the DFW SIP approved on January 14,2009 (74 FR 01903), and the Houston SIP

approved on September 6, 2006 (71 FR 52670).
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and receive grants to improve the program. Section 114.644 (Clean School Bus Program

Requirements) establishes the basic program requirements for the Clean School Bus Program,

including: the types of projects eligible for a Clean School Bus grant; allowance for the TCEQ

to limit and/or prioritize funding in a particular funding period to certain areas ofthe State;

allowance for the TCEQ to establish other criteria in a particular funding period, including

reductions in diesel exhaust emissions to be achieved and additional pollutants to be addressed;

the minimum use and useful life of a project under the grant program; a requirement that for a

proposed project that includes a replacement of equipment or a repower, the old equipment or

engine must be recycled, scrapped, or otherwise permanently removed from the State; strict

adherence to the application form; allowance ofthe use of grant funds to pay incremental costs

associated with the project and prohibition against using the grant for administrative expenses;

prohibition against use of grant funds to meet federal or State legal requirements and for credit

under any State or federal emissions reductions credit averaging, banking, or trading program;"

and allowance for the TCEQ to require that the grant recipient return some or all ofthe grant

funds ifthey fail to meet the terms of a project grant or conditions ofthe Texas Clean School

Bus Program. Section 114.646 (Monitoring, Recordkeeping, and Reporting Requirements)

requires grant recipients to adhere to the reporting requirements oftheir grant. Reports must

occur at least annually. Section 114.648 (Implementation Schedule) establishes that the Texas

Clean School Bus Program will expire on August 31,2013.

Although the rules found in new Division 4 establish the needed framework for a clean

school bus program, the Texas Clean School Bus Program would be funded by TERP only if

4 Except as provided under Texas Health and Safety Code, section 386.056, which states that an owner or operator

of a site located in the Houston-Galveston or Dallas-Fort Worth nonattainment area may, under certain

circumstances, use emissions reductions generated by a program established under this chapter to offset the

requirements ofcommission rules relating to control of air pollution from oxides ofnitrogen.
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TCEQ is given the necessary appropriation authority by the Texas State legislature (Texas

Constitution, Article VIII, Section 6) and TERP revenues reach levels required to fund the

program (Texas Health and Safety Code, section 386.252). The Texas Clean School Bus

Program remained unfunded during the 2006-2007 biennium because an appropriation was not

made by the Texas State legislature. However, the program was funded during the 2008-2009

biennium after the Texas State Legislature gave TCEQ the necessary appropriation authority

(House BillNo. 1, 8151 Legislature, Regular Session, General Appropriations Act).

In a letter dated May 16, 2006, EPA provided TCEQ with comments, stating that in order

for the Texas Clean School Bus Program to be approvable into the SIP under the Economic

Incentive Program (EIP), reductions created by the plan must be surplus, quantifiable,

enforceable, and permanent, and should be made consistent with the principles of equity and

environmental benefit. 5 In their submittal, TCEQ confirmed that the Texas Clean School Bus

Program meets the requirements ofa financial mechanism EIP under EPA's Improving Air

Quality with Economic Incentive Programs guidance. Our analysis ofthis revision's consistency

with EPA's EIP guidelines can be found in the TSD, which is provided in the docket for this

rulemaking.

The EPA is approving the above revisions to the SIP, which establish the needed

framework for the Texas Clean School Bus Program, because they are consistent with section

110(1) ofthe CAA and EPA's EIP guidance. However, EPA notes once again that in the DFW

and Houston SIPs, certain commitments have been approved into the SIP for reducing NOx as

necessary for the areas to reach attainment. Texas must continue to insure that these

commitments are met.

e. The Texas Emissions Reduction Plan (l'ERP)

5 See EPA's Improving Air Quality with Economic Incentive Programs guidance, chapters 4 and 8 (January 2001).
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The TERP is found in 30 TAC Chapter 114, Control of Air Pollution from Motor

Vehicles; Subchapter K, Mobile Source Incentive Programs; Division 3, Diesel Emissions

Reduction Incentive Program for On-Road and Non-Road Vehicles. Revisions to the TERP

were adopted by the State on September 20, 2006 and submitted to EPA for approval into the

SIP on October 10, 2006. Subsequent revisions to the TERP were adopted by the State on

December 5, 2007 and submitted to EPA for approval into the SIP on January 17,2008. These

are explained in detail below.

The October 10, 2006 submittal provides for clarification ofthe definition of "costeffectiveness," as it applies to the TERP. The amendment to paragraph (1) in section 114.620

(Definitions) modifies the definition of "cost-effectiveness" to clarify how the cost-effectiveness

of TERP grant applications will be determined. Cost-effectiveness is defined as the total dollar

amount expended divided by the total number oftons ofNOx emissions reduction attributable to

that expenditure. In calculating cost-effectiveness, one time grants of money at the beginning of

a project shall be annualized using a time value of public funds or discount rate determined for

each project by TCEQ, taking into account the interest rate on bonds and interest earned by state

funds. In addition, amendments to paragraphs (8) and (10) in section 114.620, replace the

acronym "EPA" with "United States Environmental Protection Agency." The EPA is approving

these amendments because they will improve TERP program effectiveness by ensuring that the

cost-effectiveness of projects under the TERP is accurately calculated.

The revisions submitted on October 10, 2006 also address section 114.622 (Incentive

Program Requirements). Revisions to subsection (d) in section 114.622 establish that the TCEQ

may set lower cost-effectiveness limits as needed to ensure the best use of available funds, which

will allow spending a larger amount of money per ton ofNOx reduced. In addition to cost-
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effectiveness, the TCEQ may base project selection decisions on other measures when evaluating

the effectiveness of projects in reducing NOx emissions in relation to the funds to be awarded.

While many ofthe most cost-effective projects have already been completed, old, polluting

equipment remains in use in nonattainrnent areas and this revision would increase the eligibility

of a portion ofthat equipment for TERP funding. The EPA is approving this amendment

because it will allow TERP to fund less cost-effective projects that nevertheless would reduce

NOx emissions in nonattainrnent areas.

A portion ofthe October 10, 2006 revision to subsection (d) in section 114.622, which

specifies that the cost-effectiveness of a proposed project under the TERP program must not

exceed a cost-effectiveness of $13,000 per ton ofNOx emissions reduced, is superseded by a

revision in the January 17, 2008 submittal, which further lowers the cost-effectiveness limits for

projects to $15,000 per ton ofNOx emissions reduced. In addition, the amendment to subsection

(c) ofsection 114.622, which requires that old equipment or engines that are part of a proposed

project that includes a replacement of equipment or a repower be recycled, scrapped or otherwise

permanently removed from the State, is superseded by the January 17,2008 submittal, which

requires grant recipients to recycle or scrap the old equipment or engine, except in specific grants

in which the applicant provides sufficient assurances that an old locomotive will not be returned

to the State. The EPA is approving these revisions because they will improve TERP program

effectiveness by increasing the pool of eligible applicants for TERP funds and by providing

greater certainty that older, higher emitting equipment will be removed from service.

The January 17, 2008 submittal also revises subsection (b) ofsection 114.622 (Incentive

Program Requirements), which authorizes the TCEQ to allow vehicles replaced or repowered

under the TERP to travel on highways and roadways, or portions of a highway or roadway,
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designated by the TCEQ and located outside a nonattainment area or affected county to count

towards the percentage-of-use requirement when determining eligibility for TERP grants.

Previously, not less than 75 percent ofthe vehicle miles traveled or hours of operation projected

for the five years immediately following the award of a grant were required to be projected to

take place in a nonattainment area or affected county in Texas. The requirement that at least 75

percent ofthe vehicle miles traveled or hours of operation projected for the five years

immediately following the award of a grant must be projected to take place in a nonattainment

area or affected county ofthe state ofTexas, or on highways and roadways designated by the

TCEQ and located outside a nonattainment area or affected county, is only used to determine

TERP program eligibility. According to the TERP guidelines, usage outside ofthe

nonattainment areas or affected counties will not count towards the emissions reductions used to

determine the cost-effectiveness ofthe project. The EPA is approving this revision to the SIP

because it will result in more vehicles traveling in and around the nonattainment areas to be

eligible for TERP grants.

The EPA is approving the above revisions to the TERP program into the SIP because

they are consistent with section 11O(1) ofthe CAA, they give the State additional flexibility to

allocate TERP funds to achieve the air quality goals ofthe State, and the TERP continues to be

consistent with EPA's ErP guidance." EPA notes, however, that in the DFW and Houston SIPs,

certain commitments have been approved into the SIP for reducing NOx as necessary for the

areas to reach attainment. Texas must continue to insure that these commitments are met.

D. Locally Enforced Motor Vehicle Idling Limitations

6 For our analysis ofthe consistency ofthe TERP revisions with EPA's Improving Air Quality with Economic

Incentive Programs guidance (January 200 I), please see the TSD, which is located in the docket for this rulemaking.
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The Locally Enforced Motor Vehicle Idling Limitations are found in 30 TAC Chapter

114, Control of Air Pollution from Motor Vehicles; Subchapter J, Operational Controls for

Motor Vehicles; Division 2, Locally Enforced Motor Vehicle Idling Limitations. This rule can

be implemented within the jurisdiction of any local government in the State that has signed a

Memorandum of Agreement (MOA) with the TCEQ. The local government that signs the MOA

is delegated the authority to enforce the rule within its jurisdiction. Thus far, numerous cities

and counties in the Austin and Dallas-Fort Worth areas have adopted these regulations."

Revisions to Division 2 were adopted by the State on April 26, 2006, and submitted to EPA for

approval into the SIP on May 15,2006. Subsequent revisions to Division 2 were adopted by the

State on January 30, 2008, and submitted to EPA for approval into the SIP on February 28,2008.

These are explained in detail below.

The May 15, 2006 submittal revises section 114.512 (Control Requirementsfor Motor

Vehicle Idling). The first amendment simply identifies the existing first paragraph as subsection

(a). This paragraph states that no person shall cause, suffer, allow, or permit the primary

propulsion engine of a motor vehicle to idle for more than five consecutive minutes when the

motor vehicle is not in motion during the period of April 1 through October 31 of each calendar

year. The EPA is approving this revision because it allows for existing section 114.512 to be

organized into subsections.

The second revision to Section 114.512 adds new subsection (b), which states that no

driver using the vehicle's sleeper berth may idle the vehicle in a school zone or within 1,000 feet

of a public school during its hours of operation, an offense of which may be punishable by a fine

7 For a current list of areas implementing idling restrictions in North Texas, visit

http://www.nctcog.org/trans/air/programs/idling/index. asp. For a current list of areas implementing idling

restrictions in the Austin area, visit http://www.tceq.state.tx.us/implementationlairlsip/vehicleidling.html.
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not to exceed $500. A portion of new subsection (b) in section 114.512 (submitted May 15,

2006), which establishes that this particular subsection expires on September 1,2007, is

superseded by a revision in the February 28, 2008 submittal, which extends the expiration date to

September 1, 2009. The February 28, 2008 submittal also revises subsection (b) by adding

language to prohibit idling by drivers using the vehicle's sleeper berth in residential areas'' or

within 1,000 feet of a hospital. The EPA is not taking action on the revisions to subsection (b) of

section 114.512 that were submitted on May 15,2006 and February 28, 2008, because the

expiration date of September 1, 2009 has already passed, and subsection (b) is therefore no

longer in effect.

The May 15,2006 submittal also revises section 114.517 (Exemptions). The amendment

to paragraph (1) in section 114.517 continues to exempt motor vehicles with a gross vehicle

weight rating of 14,000 pounds or less, but if before September 1,2007, only those that do not

have a sleeper berth. This is superseded by the January 28, 2008 revision, which provides the

following: paragraph (1) specifies that the control requirements for motor vehicle idling do not

apply to "a motor vehicle that has a gross vehicle weight rating of 14,000 pounds or less and

does not have a sleeper berth." New paragraph (2) indicates that after September 1,2009, all

motor vehicles with a gross vehicle weight rating of 14,000 pounds or less will be exempt from

the provisions ofsection 114.512 (Control Requirementsfor Motor Vehicle Idling). This

revision simply clarifies that control requirements for motor vehicle idling do not apply to any

motor vehicle with a gross vehicle weight rating of 14,000 pounds or less. The Locally Enforced

Motor Vehicle Idling Limitations approved into the Texas SIP on April 11, 2005 (70 FR 18308)

applied only to heavy duty vehicles with a gross vehicle weight rating greater than 14,000

8 As defined by Local Government Code, Section 244.00 I, which explains what areas are classified as residential

areas.
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pounds, and were not intended to apply to any vehicle with a gross vehicle weight rating of

14,000 pounds or less, regardless of whether or not it has a sleeper berth. This revision to

section 114.517 allows for consistency with the TX SIP revisions approved in 2005. The EPA is

approving these revisions submitted on February 28, 2008 because they provide for clarification

ofthe exemptions to the motor vehicle idling limits. EPA is not taking action on the May 15,

2006 revision to paragraph (1) in section 114.517, because it is superseded by the revisions

submitted on February 28, 2008.

The May 15,2006, submittal also revises section 114.517, paragraphs (4) and (7). In

paragraph (4), the phrase "not including" is replaced with "other than," such that the paragraph

reads that one ofthe exemptions to the control requirements for motor vehicle idling is "the

primary propulsion engine of a motor vehicle providing a power source necessary for mechanical

operation, other than propulsion, and/or passenger compartment heating, or air conditioning." In

paragraph (7), the phrase "comfort/safety" is replaced with "comfort and safety" and the word

"those," referring to "vehicles," is removed because it is redundant. In addition, the phrase "or

public" is added and the phrase "school buses" is removed, to clarify that the primary propulsion

engine of all motor vehicles intended for commercial or public passenger transportation, or

passenger transit operations, are allowed to idle up to a maximum of 30 minutes when being

used to provide air conditioning or heating necessary for passenger comfort and safety.

Furthermore, the exemption regarding the propulsion engine of motor vehicles used for

passenger transit operations is removed from paragraph (8) and inserted into paragraph (7).

Revised paragraph (7) now reads that the provisions ofsection 114.512 do not apply to "the

primary propulsion engine of a motor vehicle that is being used to supply heat or air conditioning

necessary for passenger comfort and safety in vehicles intended for commercial or public
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passenger transportation, or passenger transit operations, in which case idling up to a maximum

of 30 minutes is allowed." Language is added to paragraph (8), exempting the primary

propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary

for employee health or safety while the employee is using the vehicle to perform an essential job

function related to roadway construction or maintenance, from the control requirements for

motor vehicle idling. The new exemption found in paragraph (8) ensures that the control

requirements for motor vehicle idling do not conflict with the Texas Department of

Transportation guidelines for vehicle idling by employees. The revision to paragraph (8) will

assist local jurisdictions in determining enforcement responsibilities. Text is edited in

paragraphs (9) and (10) for clarification: the word "or" is removed from the end of paragraph (9)

to indicate that it is no longer the next to last paragraph; in paragraph (10), the word "who" is

replaced with "that" and a period is replaced with a semi-colon and the word "or" is added to the

end of paragraph (10), to indicate that it is no longer the final paragraph in section 114.517. The

EPA is approving these revisions because they help to clarify procedures regarding idling

restrictions.

The May 15,2006 submittal also adds new paragraph (11), which exempts from the

control requirements for motor vehicle idling, a motor vehicle when idling is necessary to power

a heater or air conditioner while a driver is using the vehicle's sleeper berth for a governmentmandated rest period. The February 28, 2008 submittal revises paragraph (11) by adding

language that prohibits idling to power a heater or air conditioner while a driver is using the

vehicle's sleeper berth ifthe vehicle is within two miles of a facility offering external heating

and air conditioning connections at a time when those connections are available. It should be

noted that in a letter dated January 17, 2006, EPA provided TCEQ with comments, stating that
19

the addition of exemption (11) would weaken the SIP rules approved by EPA in 2005. We

added that we would not be able to approve this revision into the SIP unless TCEQ would

provide substitute reductions or modeling to show that attainment can be met without the credits

affected by these changes. TCEQ did not revise the rule or provide new substitute reductions or

modeling in response to our comments. However, the February 28, 2008 submittal extends the

expiration date of paragraph (11) to September 1,2009, and it should be noted that the expiration

date has passed and the exemption is no longer in effect. Therefore, the EPA is not taking action

on the revisions to paragraph (11) that were submitted on May 15, 2006 and February 28, 2008.

The February 28, 2008 submittal also revises section 114.517 (Exemptions), by

renumbering the paragraphs to account for new paragraph (2). The EPA is approving this

revision to the SIP because it allows for clarity and consistency in the numbering ofthe

paragraphs in section 114.517.

The EPA is approving the above revisions to the Locally Enforced Motor Vehicle Idling

Limitations into the SIP because they are consistent with section 110(1) ofthe CAA, and because

they allow for clarity and consistency ofthe exemptions and control requirements for motor

vehicle idling.

IV. Final Action

The EPA is approving revisions to the Texas SIP submitted to EPA on May 15, 2006,

October 10,2006, January 17,2008, and February 28, 2008, which apply to 30 TAC Chapter

114, Control of Air Pollution from Motor Vehicles. These revisions establish the Rebate Grant

Process and Texas Clean School Bus Program, and amend the TERP and Locally Enforced

Motor Vehicle Idling Limitations. The revisions are consistent with section 110(1) of the Act.
20

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that

complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k);

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices,

provided that they meet the criteria ofthe Clean Air Act. 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 ofManagement

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number ofsmall

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 (Public Law

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);
21

• Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose

requirements would be inconsistent with the Clean Air Act; 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, this rule does not have tribal implications as specified by Executive Order 13175 (65

FR 67249, November 9,2000), because the SIP is not approved to apply in Indian country

located in the state, and EPA notes that it will not impose substantial direct costs on tribal

governments or preempt tribal law.

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 ofthe

rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

will submit a report containing this action and other required information to the U.S. Senate, the

U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to

publication ofthe 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)(l) ofthe Clean Air Act, petitions for judicial review ofthis action

must be filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL

REGISTER OFFICE: insert date 60 days from date of publication of this document in the

Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule
22

does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the

time within which a petition for judicial review may be filed, and shall not postpone the

effectiveness ofsuch 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, Intergovernmental Relations, Nitrogen

oxides, Ozone, Volatile organic compounds.

Q W t'" e 1'\<: e. iZ, .$to r \ Q. \ J.

Dated: ting Regional Administrator, Region 6 :J
23

40 CFR part 52 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. The table in §52.2270(c) entitled "EPA Approved Regulations in the Texas SIP" is amended

under Chapter 114 (Reg 4) as follows:

a. Under Subchapter J, Division 2, by revising the entries for Sections 114.512 and

114.517;

b. Under Subchapter K, Division 3, by revising the entries under Division 3 and adding a

new entry for Section 114.624;

c. Under Subchapter K, immediately following Section 114.629, by adding a new

centered heading "Division 4: Texas Clean School Bus Program" followed by new entries for

Sections 114.640, 114.642, 114.644, 114.646 and 114.648.

The revisions and additions read as follows:

§ 52.2270 Identification of plan

* * * * *

(c) * * *

EPA Approved Regulations in the Texas SIP

State citation Title/Subject State approval/ EPA approval date I Explanation

Submittal date

* * * * * * *

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

* * * * * * *
24

Subchapter J - Operational Controls for Motor Vehicles

Division 2: Locally Enforced Motor Vehicle Idling Limitations

* * * * * * * Section 114.512 Control 4/26/2006 [Insert date of FR EPA is not

Requirements for publication] taking action

Motor Vehicle [Insert FR page on the

Idling number where addition of

document begins] new section

114.512(b).

Section 114.512 Control 1130/2008 [Insert date of FR EPA is not

Requirements for publication] taking action

Motor Vehicle [Insert FR page on the

Idling number where revisions to

document begins] section

114.512(b).

Section 114.517 Exemptions 4/26/2006 [Insert date of FR EPA is not

publication] taking action

[Insert FR page on the

number where revisions to

document begins] section

114.517(11).

Section 114.517 Exemptions 1130/2008 [Insert date of FR EPA is not

publication] taking action

[Insert FR page on the

number where revisions to

document begins] section

114.517(11),

which is now

I

renumbered

114.517(12).

Subchapter K - Mobile Source Incentive Programs

Division 3: Diesel Emission Reduction Incentive Program for On-road and Non-road Vehicles

Section 114.620 Definitions 9/20/2006 [Insert date of FR

publication]

[Insert FR page

number where

document begins1

Section 114.621 Applicability 1/28/2004 8/19/2005,

70 FR48647

Section 114.622 Incentive 9/20/2006 [Insert date of FR

Program publication]

Requirements [Insert FR page

I

number where

document begins]
25

Section 114.622 Incentive 12/512007 [Insert date of FR

Program publication]

Requirements [Insert FR page

number where

document begins]

Section 114.623 Small Business 1/2812004 8/19/2005,

Incentives 70 FR48647

Section 114.624 Rebate Grant 9/2012006 [Insert date of FR

Process publication]

[Insert FR page

number where

document beains]

Section 114.626 I Monitoring, 8/2212001 8/19/2005,

I Recordkeeping, 70 FR48647

and Reporting

Requirements

Section 114.629 Affected 1/28/2004 8/19/2005,

Counties and 170 FR48647

Implementation

Schedule i

Division 4: Texas Clean School Bus Program

Section 114.640 Definitions 9/2012006 [Insert date of FR

publication]

[Insert FR page

number where

document begins]

Section 114.642 Applicability 9120/2006 [Insert date of FR

publication]

[Insert FR page

number where

document begins]

Section 114.644 Clean School 9/2012006 [Insert date of FR

Bus Program publication]

Requirements [Insert FR page

number where

document beginsl

Section 114.646 Monitoring, 9/20/2006 [Insert date of FR

Recordkeeping, publication]

and Reporting [Insert FR page

I Requirements number where

i document begins]