[Federal Register Volume 85, Number 117 (Wednesday, June 17, 2020)]
[Rules and Regulations]
[Pages 36504-36506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10835]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0229; FRL 10009-40-Region 6]
Air Plan Approval; Texas; Approval of Substitution for Dallas-
Fort Worth Area Transportation Control Measures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; notice of administrative change.
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SUMMARY: The Environmental Protection Agency (EPA) is making an
administrative change to update the Code of Federal Regulations (CFR)
to reflect a change made to the Texas State Implementation Plan (SIP)
on February 21, 2020, as a result of EPA's concurrence on substitute
transportation control measures (TCMs) for the Dallas-Fort Worth (DFW)
8-hour ozone nonattainment area portion of the Texas SIP. EPA has
determined that the substitution of the TCMs is consistent with the
Clean Air Act and EPA's national guidance on such substitutions, and
therefore falls within the ``good cause'' exemption in the
Administrative Procedure Act (APA) which, upon finding ``good cause,''
authorizes an agency to make an action effective immediately.
DATES: This action is effective June 17, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2020-0229. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jeff Riley, 214-665-8542,
[email protected]. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office may be closed to the
public to reduce the risk of transmitting COVID-19. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION: Under Clean Air Act (CAA) section 176(c)(8),
States are allowed to substitute TCMs in approved SIPs for replacement
TCMs which achieve equivalent or greater emissions reductions without
having to undertake the standard SIP revision process.\1\ The DFW area
metropolitan planning organization, the North Central Texas Council of
Governments (NCTCOG),\2\ identified for substitution three TCMs
originally approved as High-Occupancy Vehicle (HOV) lanes into the DFW
SIP as follows:
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\1\ The Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) transportation funding
and authorization bill, which was signed into law on August 10,
2005, revised the CAA's section 176(c) transportation conformity
provisions to allow states to substitute or add TCMs into approved
SIPs without the standard SIP revision process. These revisions
facilitate compliance with the transportation conformity rule's
requirements for timely implementation of TCMs (40 CFR 93.113) by
expediting the TCM substitution process.
\2\ As the Metropolitan Planning Organization for the DFW area,
NCTCOG is delegated authority under 30 Texas Administrative Code
Sec. 114.270 to implement SIP-approved TCMs for the DFW ozone
nonattainment area.
[[Page 36505]]
Table 1--Approval of TCMs Into the DFW SIP
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SIP revision EPA approval TCM
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April 2000 DFW 1-Hour Ozone September 27, 2005 IH 35
Attainment Demonstration. (70 FR 56374). East corridor
(Stemmons
Freeway) HOV lane
between IH 635
and SH 121.
IH 635
West corridor
(LBJ Freeway) HOV
lane between Luna
Road/IH 35 E and
US 75.
May 2007 DFW 1997 8-Hour Ozone January 14, 2009 IH 635
Attainment Demonstration. (74 FR 1903). East corridor
(LBJ Freeway) HOV
lane between Coit
Road and
Greenville
Avenue.
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The NCTGOC determined that since the opening of these HOV lanes,
increased congestion in these corridors had resulted from increased
population and vehicle miles traveled. As a result, the HOV lanes no
longer provided the needed congestion relief and associated nitrogen
oxide (NOX) and volatile organic compound (VOC) air quality
benefits approved into the DFW SIP as detailed in Table 1.
As a part of the TCM substitution concurrence process required
under CAA section 176(c)(8), the NCTCOG published notice on November 7,
2019 in 20 DFW area newspapers and circulars announcing a November 11,
2019 public meeting to provide information on the proposed TCM
substitutions and begin a 30-day public comment period. No public
comments were received, and EPA did not provide comment or concurrence
during this comment period. On December 12, 2019, the NCTCOG Regional
Transportation Council adopted a resolution to substitute these HOV
lane TCMs for traffic signalization project TCMs to offset any
NOX and VOC emission reduction credits lost by removing
these corridors from HOV lane usage and keep equivalent emission
reduction controls in place.
On February 21, 2020, EPA issued concurrence letters to the Texas
Commission on Environmental Quality (TCEQ) and the NCTCOG stating that
the substitution of the DFW area IH 35E/IH 635 HOV Lane TCMs with
traffic signalization project TCMs met the CAA section 176(c)(8)
requirements for substituting TCMs in an area's approved SIP, including
the requirement that the substitute measures achieve equivalent or
greater emission reductions than the control measure to be replaced. On
February 18, 2020, the TCEQ issued similar concurrence letters to EPA
Region 6 and the NCTCOG. Each of the above-noted concurrence letters
are included in the docket to this rulemaking as part of the State of
Texas' April 8, 2020 submittal to EPA. See EPA's Guidance for
Implementing the Clean Air Act Section 176(c)(8) Transportation Control
Measure Substitution and Addition Provision dated January 2009.
Upon issuance EPA's February 21, 2020 concurrence letters, the HOV
Lane substitutions took effect as a matter of federal law.\3\ In
accordance with the requirements for TCM substitution, on April 8,
2020, the State of Texas submitted through the TCEQ a request for EPA
to update the DFW portion of the Texas SIP to reflect EPA's February
21, 2020 approval of the TCM substitution of the HOV Lanes with the
traffic signalization project TCMs in its SIP (the subject of this
administrative change). Today, EPA is taking administrative action to
update the non-regulatory provisions of the Texas SIP in 40 CFR
52.2270(e) to reflect EPA's concurrence on the substitution to convert
the IH 35E/IH 635 HOV Lane TCMs to traffic signalization project TCMs:
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\3\ CAA section 176(c)(8)(B) stipulates that concurrence by the
MPO, State air pollution control agency and the EPA shall constitute
adoption of the substitute control measures, and that once adopted,
the substitute measures become, by operation of law, part of the SIP
and become federally enforceable.
------------------------------------------------------------------------
State
Name of nonregulatory SIP Applicable submittal date/
provision geographic or effective
nonattainment area date
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DFW nine-county area IH-35E/IH-635 Dallas-Fort Worth... 4/8/2020
HOV Lane TCMs to traffic
signalization TCMs. Affected
counties are Dallas, Tarrant,
Collin, Denton, Parker, Johnson,
Ellis, Kaufman, Rockwall.
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Under section 553 of the APA, an agency may find good cause where
procedures are ``impractical, unnecessary, or contrary to the public
interest.'' EPA's January 2009 guidance establishes EPA's rationale for
utilizing the good cause provision under the APA to take actions
relating to TCM substitutions without additional need for public
comment because the substitution was originally made through the
process approved into the Texas SIP (79 FR 5287) in addition to the CAA
section 176(c)(8) statutory provision as applicable, and because the
public has had the opportunity to comment on the specific substitution
during NCTCOG's public comment period.\4\ Effective immediately,
today's action codifies provisions which are already in effect. The
public had an opportunity to comment on this substitution during the
public comment period prior to approval of the substitution. Immediate
notice of this action in the Federal Register benefits the public by
providing the updated Texas SIP Compilation and ``Identification of
Plan'' portion of the CFR.
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\4\ EPA's rationale for applicability of the APA ``good cause''
exemption to TCM substitution rulemakings is provided in its January
2009 Guidance for Implementing the Clean Air Act Section 176(c)(8)
Transportation Control Measure Substitution and Addition Provision,
EPA-420-B-09-002. https://nepis.epa.gov/Exe/ZyPDF.cgi/P1002W66.PDF?Dockey=P1002W66.PDF.
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[[Page 36506]]
Statutory and Executive Order Reviews
A. General Requirements
Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011), this administrative action is not
a ``significant regulatory action'' and is therefore not subject to
review by the Office of Management and Budget. This action is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866. Because the Agency has made a ``good
cause'' finding that this action is not subject to notice-and-comment
requirements under the APA or any other statute as indicated in the
Supplementary Information section above, it is not subject to the
regulatory flexibility provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded
Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4). In addition, this
action does not significantly or uniquely affect small governments or
impose a significant intergovernmental mandate, as described in
sections 203 and 204 of UMRA.
This administrative action also does not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
federal government and Indian tribes, or on the distribution of power
and responsibilities between the federal government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
nor will it have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999).
This administrative action also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997), because it is not economically
significant. This administrative action does not involve technical
standards; thus the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. The administrative action also does not involve special
consideration of environmental justice related issues as required by
Executive Order 12898 (59 FR 7629, February 16, 1994). This
administrative action does not impose an information collection burden
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act (CRA) (5 U.S.C. 801 et seq.), as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. Today's
administrative action simply codifies a provision which is already in
effect as a matter of law in Federal and approved state programs. 5
U.S.C. 808(2). These announced actions were effective upon EPA's
concurrence. EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of this action in the Federal Register. This update to
Texas' SIP Compilation is not a ``major rule'' as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 14, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:
PART 52--[AMENDED]
0
1. The authority for citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
SUBPART SS--TEXAS
0
2. In Sec. 52.2270, in paragraph (e), amend the table titled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP'' by adding an entry for ``DFW nine-county area IH-35E/IH-635
HOV Lane TCMs to traffic signalization TCMs'' at the end of the table
to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable
Name of SIP provision geographic or State submittal/ EPA approval date Comments
nonattainment area effective date
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* * * * * * *
DFW nine-county area IH-35E/IH- Dallas-Fort Worth: 4/8/2020 6/17/2020 [Insert ..................
635 HOV Lane TCMs to traffic Dallas, Tarrant, Federal Register
signalization TCMs. Collin, Denton, citation].
Parker, Johnson,
Ellis, Kaufman and
Rockwall Counties.
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[FR Doc. 2020-10835 Filed 6-16-20; 8:45 am]
BILLING CODE 6560-50-P