[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Rules and Regulations]
[Pages 69557-69559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33474]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NH037-7164; A-1-FRL-6203-5]
Approval and Promulgation of Air Quality Implementation Plans;
State of New Hampshire; Interim Final Determination That New Hampshire
has Avoided the Deficiencies of its I/M SIP Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: Elsewhere in today's Federal Register, EPA has published
rulemaking actions proposing to determine that the one hour ozone
standard no longer applies in New Hampshire and other nearby areas, and
proposing approval of the State of New Hampshire's motor vehicle
inspection and maintenance (I/M) program, under Section 110 of the
Clean Air Act (CAA). Additionally, EPA is proposing to lift the
requirement that New Hampshire submit an enhanced I/M program
consistent with specific Clean Air Act requirements for the Ozone
Transport Region (OTR). Based on these proposed actions, EPA is making
an interim final determination, by this action, that the State is more
likely than not no longer subject to the requirements prompting the
original disapproval of the New Hampshire enhanced I/M SIP revision.
This action will defer the application of the offset sanction that is
otherwise applicable beginning December 6, 1998, and defers the future
application of the highway sanction. Although this action is effective
upon publication, EPA will take comment on this interim final
determination as well as EPA's action proposing approval of the State's
submittal and a determination that the one-hour ozone standard no
longer applies in New Hampshire and other nearby areas. EPA will
publish a final notice taking into consideration any comments received
on EPA's proposed actions and this interim final action.
DATES: Effective December 17, 1998. Written comments must be received
on or before January 19, 1999. Public comments on this document are
requested and will be considered before taking final action on this SIP
revision.
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection (mail code CAA), U.S. Environmental
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203.
Copies of the State submittal and EPA's technical support document 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 and the Air Resources Division, Department of Environmental
Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-
2033.
FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.
SUPPLEMENTARY INFORMATION: On September 4, 1998, New Hampshire
submitted a revision to its State Implementation Plan (SIP) for an I/M
program. This submittal was supplemented by a letter dated November 20,
1998 providing additional information about the New Hampshire I/M
program and a request for further flexibility from requirements
applicable to the OTR in light of the current air quality status of the
area. 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. This action is being taken under Section 110 of the
Clean Air Act.
[[Page 69558]]
I. Background
On October 12, 1994, EPA conditionally approved in the Federal
Register (59 FR 51517) an I/M SIP submitted by the State. By means of a
June 6, 1997 letter, EPA notified New Hampshire that the conditional
approval of the New Hampshire enhanced I/M SIP revision had been
converted to a disapproval. The letter triggered the 18-month time
clock for the mandatory application of sanctions under section 179(a)
of the CAA. Therefore, the Act's offset sanction applies beginning
December 6, 1998. To remedy that failure, on September 4, 1998, the
State of New Hampshire submitted an I/M SIP revision to EPA, requesting
approval action under the CAA. On November 20, 1998, a supplement to
the September 4, 1998 SIP revision was officially submitted to EPA.
The purpose of these SIP revisions was to remedy deficiencies
identified by EPA in its June 6, 1997 letter. In the November 20, 1998
letter, New Hampshire submitted a request that EPA grant the State
further flexibility under the CAA to implement an I/M program that does
not meet all the specific requirements for an enhanced I/M program in
the OTR.
II. EPA's Current Rulemaking Actions
In the Proposed Rules section of today's Federal Register, EPA is
proposing approval of the State's I/M SIP revision to strengthen its
SIP, as well as an action proposing to determine that the 1-hour ozone
standard no longer applies in New Hampshire and certain other nearby
areas. Additionally, EPA has proposed to remove the detailed CAA
requirements for an enhanced I/M program in the OTR for New Hampshire
based on the State's demonstration that reductions from an I/M program
will not significantly contribute to attainment of the 1-hour ozone
standard in any area in the OTR.
EPA believes that, as a result of today's related rulemaking
actions, it is more likely than not that New Hampshire is no longer
subject to the requirement to have an enhanced I/M program which
triggered the sanctions clock in New Hampshire. This interim
determination will not halt or reset the sanctions deadline, but will
continue to defer the implementation of sanctions until EPA's proposal
is finalized or the State's I/M program is disapproved. Disapproval
will result in sanctions being imposed, as previously scheduled.
Today EPA is also providing the public with an opportunity to
comment on this interim final determination. If, based on any comments
received by EPA upon this interim final determination action and any
comments on EPA's proposed finding with respect to New Hampshire's air
quality and proposed approval of the State's I/M SIP revision, EPA
determines that those actions are inappropriate and the SIP revision is
not approvable and, therefore, this final action was also
inappropriate, EPA will take further action to disapprove the State's
I/M SIP revision. If EPA's proposed approval of the New Hampshire I/M
SIP revision is disapproved, then sanctions would be applied as
required under Section 179(a) of the CAA and 40 CFR 52.31.
III. EPA Action
Based on the proposed actions determining that the 1-hour ozone
standard no longer applies in New Hampshire and removing the I/M
requirement in New Hampshire set forth elsewhere in today's Federal
Register, EPA believes that it is more likely than not that the State
is no longer subject to the I/M requirement that prompted the original
disapproval of the New Hampshire I/M SIP for which the June 6, 1997
disapproval finding was issued. Therefore, EPA concludes that sanctions
should be stayed until EPA takes final action on those proposals and
the New Hampshire I/M SIP.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Administrative Requirements
Because EPA has preliminarily determined that New Hampshire is no
longer subject to enhanced I/M requirements and therefore that the
September 4, 1998 New Hampshire I/M SIP revision is approvable, relief
from sanctions should be provided as quickly as possible. Therefore,
EPA is invoking the good cause exception under the Administrative
Procedure Act (APA) in not providing an opportunity for comment before
this action takes effect.\1\ 5 U.S.C. 553(b)(B). The EPA believes that
notice-and-comment rulemaking before the effective date of this action
is impracticable and contrary to the public interest. The EPA has
reviewed the State's September 4, 1998 I/M SIP revision and November
20, 1998 letter. Through this interim final determination action, the
Agency believes that it is more likely than not that the State is no
longer subject to the requirement for which the sanctions clock was
started.
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\1\ As previously noted, however, by this action EPA is
providing the public with a chance to comment on EPA's determination
after the effective date and EPA will consider any comments received
in determining whether to reverse such action.
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Therefore, it is not in the public interest to apply sanctions when
the State is most likely no longer subject to the requirement that
triggered the sanctions clock. Moreover, it would be impracticable to
go through notice-and-comment rulemaking on a finding that the State is
no longer subject to that requirement prior to the date sanctions would
take effect. Therefore, EPA believes that it is necessary to use the
interim final rulemaking process to defer sanctions while EPA completes
its rulemaking process. In addition, EPA is invoking the good cause
exception to the 30-day advance notice requirement of the APA because
the purpose of this notice is to relieve a restriction. See 5 U.S.C.
553(d)(1).
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget, a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of
[[Page 69559]]
section 1(a) of E.O. 12875 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 E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it is not
economically significant under E.O. 12866 and does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly 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 E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
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 rule will not have a significant impact on a
substantial number of small entities because it does not create any new
requirements. Therefore, because this rule 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.
F. Unfunded Mandates
Under sections 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
this action 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 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 General Accounting Office
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. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective upon publication.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 9, 1998.
John DeVillars,
Regional Administrator, Region 1.
[FR Doc. 98-33474 Filed 12-16-98; 8:45 am]
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