01-571. Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Vehicle Inspection and Maintenance Program; Restructuring OTR Requirements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a Clean Air Act State Implementation Plan (SIP) revision submitted by the State of New Hampshire. On December 17, 1998 (63 FR 69589), EPA proposed to approve a revision to the New Hampshire SIP for vehicle inspection and maintenance (I/M). This SIP revision request was submitted on September 4, 1998. The State supplemented it by a letter dated November 20, 1998 which provided additional information about the New Hampshire I/M program, and requested further flexibility from requirements applicable to areas in the Ozone Transport Region (OTR) in light of the air quality status of New Hampshire's ozone nonattainment areas. EPA proposed approval of New Hampshire's I/M program under the concept of OTR “restructuring” on December 17, 1998 and received no comments. This action is being taken under section 110 of the Clean Air Act.

DATES:

This rule will become effective on February 9, 2001.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection during normal business hours, by appointment, at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, Region I, One Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room M-1500, 401 M Street, (Mail Code 6102), S.W., Washington, D.C.; and the Air Resources Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT:

Robert C. Judge, [phone].

SUPPLEMENTARY INFORMATION:

This Supplementary Information section is organized as follows:

I. What SIP revision was submitted by the State of New Hampshire?

II. What are the relevant Clean Air Act requirements?

III. What action did EPA propose for the New Hampshire I/M SIP?

IV. What action did EPA take to defer the offset sanction in New Hampshire?

V. What is EPA's basis for restructuring the Ozone Transport Region requirements?

VI. Have any circumstances changed since the original proposal?

VII. What action is EPA taking on New Hampshire's I/M program?

VIII. EPA Action

IX. Administrative Requirements

I. What SIP revision was submitted by the State of New Hampshire?

The New Hampshire Department of Environmental Services (DES) submitted a revision to the New Hampshire SIP on September 4, 1998 and November 20, 1998 for a vehicle ­I/M program. The submittal requested further flexibility from requirements applicable to areas in the OTR in light of the air quality status of the ozone nonattainment areas in New Hampshire. The SIP revision includes New Hampshire Code of Administrative Rules, Part Saf-C 3220 “Official Motor Vehicle Inspection Requirements” and Part Saf-C 5800 “Roadside Diesel Opacity Inspection” and additional supporting material including authorizing legislation, administrative items, and a description of the program being implemented.

II. What are the relevant Clean Air Act requirements?

Section 184(b)(1)(A) of the Act requires areas with a population of at least 100,000 in a metropolitan statistical area in the OTR to adopt and implement an inspection and maintenance program meeting EPA's enhanced I/M performance standard. EPA's I/M rule was established on November 5, 1992 (57 FR 52950). EPA made significant revisions to the I/M rule on September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036). Under EPA's I/M rule, enhanced I/M programs would be required in the Portsmouth-Dover-Rochester, New Hampshire area, and the New Hampshire portion of the Boston-Worcester-Lawrence area^[1] . This program was initially submitted to fulfill the State's obligations to implement I/M pursuant to these requirements. The I/M regulation was codified at 40 CFR part 51, subpart S, and requires States subject to the I/M requirement to submit an I/M SIP revision that includes all necessary legal authority and the items specified in 40 CFR 51.350 through 51.373.

III. What action did EPA propose for the New Hampshire I/M SIP?

EPA proposed approval of New Hampshire's I/M program under the concept of OTR “restructuring” on December 17, 1998 (63 FR 69589). EPA stated that the New Hampshire areas and all nearby areas had met the one-hour national ambient air quality standard (NAAQS) for ozone. Because of this, and because of the technical demonstration made by the State, EPA made a determination that emission reductions from I/M under section 184 would not significantly contribute to the attainment of the one-hour standard anywhere in the OTR, and the I/M requirement could be “restructured.” EPA then proposed approval of the I/M SIP as a SIP strengthening measure under section 110 of the Clean Air Act. EPA received no comments on its proposal.

IV. What action did EPA take to defer the offset sanction in New Hampshire?

Due to the disapproval of an earlier ­I/M SIP submitted by the State of New Hampshire, the Clean Air Act's offset sanction was applicable in New Hampshire beginning December 6, 1998. Based on the December 17, 1998 proposed approval (63 FR 69589) on that same day, EPA published an interim final rule in the Federal Register which stayed that sanction and deferred the imposition of the highway funding sanction in New Hampshire (63 FR 69557). In that action EPA said that the stay and deferral would remain in effect until EPA took final action on the New Hampshire I/M SIP proposed on that same day or retracted its proposed approval.

Today EPA is issuing a final, full approval of New Hampshire's submitted I/M program SIP revision, and a final determination that the CAA requirement for an enhanced I/M program for areas in the OTR does not apply for New Hampshire. Accordingly, all sanctions and FIP clocks started based on EPA's earlier disapproval of New Hampshire's I/M program are terminated upon the effective date of today's action.

V. What is EPA's basis for restructuring the Ozone Transport Region requirements?

Section 176A of the Clean Air Act is entitled “Interstate Transport Commissions,” and discusses the criteria used to add or remove areas from transport regions. Section 176A(a)(2) states that the “Administrator * * * may remove any State * * * from the [OTR] whenever the Administrator has reason to believe that control of emissions in that State * * * pursuant to [the Act's requirements for the OTR] will not significantly contribute to attainment of the standard in the region.” Implicit in EPA's authority to remove a State from the OTR entirely is the authority to eliminate or “restructure” specific control requirements for States that remain in the OTR, provided the State demonstrates that the control of emissions from such requirement will not significantly contribute to attainment of the one-hour ozone standard anywhere in the OTR.

VI. Have any circumstances changed since the original proposal?

In the December 1998 notice proposing to approve New Hampshire's ­I/M SIP, we noted that this program is designed to get the emission reductions required by EPA's I/M regulation for enhanced I/M programs in the OTR. Nevertheless, the program did not meet these enhanced I/M requirements primarily due to the Act's requirement for a registration-based enforcement program. We proposed that since New Hampshire had demonstrated that it did not affect any other one-hour ozone nonattainment areas in the OTR that were violating that standard, this area could have “opted-out” of the OTR under section 176A. New Hampshire is also attaining the 1-hour ozone standard. But since New Hampshire did not want to “opt-out” of the OTR, and merely wanted flexibility on enhanced I/M, we proposed to accept the I/M program that New Hampshire had submitted as a SIP strengthening measure under section 110. The proposal was also based on air quality data that demonstrated that all of the remaining nearby ozone nonattainment areas in Massachusetts, Maine, and Rhode Island had achieved the 1-hour standard. EPA had proposed to revoke the 1-hour standard based on these air quality data. That proposal to revoke the one-hour ozone standard in each of these areas was finalized on June 9, 1999 (64 FR 30911).

However, due to uncertainty regarding the status of implementing EPA's 8-hour ozone standard, on October 25, 1999 (64 FR 57424), EPA proposed that the one-hour standard should apply again in all areas where it was previously revoked. That action was finalized on July 20, 2000 (65 FR 45182). Many of these areas that were previously designated nonattainment have air quality which meets the one-hour ozone NAAQS, including all the areas noted in EPA's December, 1998 proposed action. It should be noted that air quality monitoring data averaged over the years 1997 through 1999 showed that the Portland, Maine area (consisting of York, Cumberland and Sagadahoc Counties) a downwind area, had a design value of 0.125 ppm. During this period, this area was exceeding the one-hour ozone standard, albeit by a small margin. But more recent data based on 1998 through 2000 monitoring data, and earlier data which was the basis for our proposal (1996 through 1998 monitoring data), shows that the Portland area is attaining the one-hour ozone standard. EPA is basing this determination upon three years of complete, quality-assured, ambient air monitoring data for the 1998 to 2000 ozone seasons that demonstrate that the Portland area has attained the one-hour ozone NAAQS, as recorded in EPA's Aerometric Information Retrieval System (AIRS). All other areas in Maine, New Hampshire, eastern Massachusetts and Vermont have continued to measure air quality that meets the one-hour ozone standard. Therefore, EPA has concluded that its earlier finding under section 176A is still valid and we are finalizing approval of the December 1998 proposed action.

VII. What action is EPA taking on New Hampshire's I/M program?

EPA is approving New Hampshire's I/M submittal. EPA has reviewed the State submittal against the requirements of the Act and EPA's final I/M rule. The SIP submission does not meet all of the requirements of EPA's final rule for enhanced I/M. The program does, however, contribute to air quality improvement. Therefore, EPA is approving New Hampshire's I/M program because it is a SIP strengthening measure under section 110. The EPA is also determining that an enhanced I/M program in New Hampshire would not significantly contribute to attainment in any other State in the OTR.

VIII. EPA Action

EPA is approving the SIP revision New Hampshire submitted on September 4, 1998, and November 20, 1998 as a revision to the New Hampshire SIP for I/M. EPA is approving the New Hampshire I/M program as strengthening the State's SIP under section 110 of the Act. EPA is also taking final action removing the detailed CAA requirements for an enhanced I/M program in the OTR for New Hampshire. Accordingly, all sanctions and FIP clocks related to approval of New Hampshire's I/M program are terminated upon the effective date of today's action.

Nothing in this action should be construed as permitting or establishing a precedent for any future request for revision to any State implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

IX. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule will 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, because it 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement 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 rule is not a “major rule” as defined by 5 U.S.C. 804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

I. Petitions for Judicial Review

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 March 12, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

Dated: December 27, 2000.

Carol Browner,

Administrator.

Part 52 of 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 EE—New Hampshire

2. Section 52.1519 is revised by removing paragraphs (a)(2) and (c)(3).

3. Section 52.1520 is amended by adding paragraph (c)(59) to read as follows:

§ 52.1520

Identification of plan.

* * * * *

(c) * * *

(59) Revisions to the State Implementation Plan submitted by the New Hampshire Air Resources Division on September 4, 1998 and November 20, 1998.

(i) Incorporation by reference.

(A) New Hampshire Code of Administrative Rules, Part Saf-C 3221A “Emission Amendments to Official Motor Vehicle Inspection Requirements” as adopted on November 17, 1998; and Part Saf-C 5800 “Roadside Diesel Opacity Inspection Program Rules” as adopted on November 17, 1998.

(ii) Additional material.

(A) Document entitled “Alternative New Hampshire Motor Vehicle Inspection/Maintenance State Implementation Plan Revision” dated September 4, 1998.

(B) Letters from the New Hampshire Air Resources Division dated September 4, 1998 and November 20, 1998 submitting a revision to the New Hampshire State Implementation Plan.

* * * * *

4. In § 52.1525, Table 52.1525 is amended by revising footnote 1 and by adding new entries to existing state citations for a motor vehicle inspection and maintenance program to read as follows:

§ 52.1525

EPA—approved New Hampshire state regulations.

* * * * *

Table 52.1525—EPA—Approved Rules and Regulations ¹—New Hampshire

Title/subject	State citation chapter 2	Date adopted by State	Date approved by EPA	Federal Register citation	52.1520	Explanation
*         *         *         *         *         *         *
Emission Amendments to Official Motor Vehicle Inspection Req	NHCAR, Part Saf-C 3221A	11/17/98	1/10/01	66 FR 1871	(c)(59)	Part Saf-C 3221A “Emission Amendments to Official Motor Vehicle Inspection Requirements” adopted on November 17, 1998;
Roadside Diesel Opacity Inspection Program Rules	NHCAR, Part Saf-C 5800	11/17/98	1/10/01	66 FR 1871	(c)(59)	Part Saf-C 5800 “Roadside Diesel Opacity Inspection Program Rules” adopted on November 17, 1998.
*         *         *         *         *         *         *
1 These regulations are applicable statewide unless otherwise noted in the Explanation section.
2 When the New Hampshire Department of Environmental Services was established in 1987, the citation chapter title for the air regulations changed from CH Air to Env-A.

Footnotes

1.  These areas are MSAs with populations greater than 100,000, and are subject to enhanced I/M under the OTR provisions of the Act. Further, because the one-hour standard was recently reinstated as of July 20, 2000, certain areas in New Hampshire if they had sufficient “urbanized area” populations, would be subject to the enhanced I/M requirements applicable in serious ozone nonattainment areas. The urbanized area populations of these areas, however, do not trigger the I/M requirements of section 182 as codified in EPA's I/M rule.