[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70593-70595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32515]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. NJ41-207, FRL-6509-4]
Approval and Promulgation of Implementation Plans; New Jersey;
Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: Elsewhere in today's Federal Register, the Environmental
Protection Agency (EPA) has published a rulemaking action proposing to
find that the State of New Jersey will have implemented its enhanced
inspection and maintenance (I/M) program when mandatory testing begins
on December 13, 1999 and that EPA is reinstating the interim approval
under section 348 of the National Highway Systems Designation Act
(NHSDA). EPA is making an interim final determination that on December
13, 1999, it is more likely than not that the program will be
implemented curing the deficiencies which caused sanctions to be
imposed. Therefore, the application of the offset sanction that began
on June 14, 1999 is stayed and the application of the highway sanction
is deferred as of December 13, 1999.
DATES: Effective December 13, 1999. Although this interim final rule
will be effective on December 13, 1999, EPA is accepting comments as to
whether the stay and deferral announced in this document should remain
in effect. Comments must be received on or before January 18, 2000.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following locations: Environmental Protection Agency, Region II Office,
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York
10007-1866 and New Jersey Department of Environmental Protection,
Bureau of Air Quality Planning, 401 East State Street, CN418, Trenton,
New Jersey 08625.
All comments should be addressed to Raymond Werner, Acting Branch
Chief, Air Programs Branch, Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New York 10007-1866.
FOR FURTHER INFORMATION CONTACT: Judy-Ann Mitchell, Air Programs
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New
York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
I. Background
New Jersey submitted changes to the existing I/M program on March
27, 1996 to satisfy the applicable requirements of both the Clean Air
Act (CAA) and the National Highway System Designation Act (NHSDA). On
October 31, 1996 (61 FR 56172), EPA published a notice of proposed
conditional interim approval of New Jersey's enhanced I/M program. On
May 14, 1997 (62 FR 26401), EPA published a final conditional interim
approval of New Jersey's enhanced I/M program.
Due to New Jersey's delays in starting the enhanced I/M program,
EPA notified New Jersey by a December 12, 1997 letter that the
sanctions clock was started for failure to implement the enhanced I/M
program, in accordance with section 179(a)(4) of the Act. The offset
sanction began in New Jersey on June 14, 1999. The highway sanction
would begin six months thereafter if New Jersey did not implement the
program. On November 19, 1999, New Jersey notified EPA by letter that
the mandatory enhanced I/M program will be implemented on December 13,
1999.
II. Interim Final Action
Based on New Jersey's commitment to the start of the program on
December 13, 1999, EPA believes that it is more likely than not that
the State will have taken the steps necessary to start an approvable
enhanced I/M program. Initiation of sanctions clocks on December 12,
1997 was based on the fact that New Jersey did not start-up a mandatory
approved enhanced I/M program. EPA is now able to conclude that since
New Jersey is operating an I/M program that will be fully enforceable
on December 13, 1999, the State will have met the obligation to
implement the enhanced I/M program and sanctions should be stayed and
deferred on December 13, 1999.
In the event that the implementation is found to be inadequate, the
stay and deferral may be removed and the sanctions imposed immediately
upon such a finding in either a proposed or final rulemaking regarding
implementation. A proposal to reinstate the interim approval under
section 348 of the NHSDA and to stop the sanctions clock and lift any
sanctions applied is published elsewhere in this Federal Register.
Pursuant to 40 CFR 52.31(d)(4)(ii), the stay and deferral may be
reinstated if EPA proposes to take action to find that the deficiency
of having failed to implement the enhanced I/M program has not been
corrected.
EPA is publishing a separate document that will serve as the
proposed reinstatement of the interim approval and finding that the
State of New Jersey implemented the enhanced I/M program on December
13, 1999. If comments are received which cause EPA to conclude that the
enhanced I/M program has not been implemented, EPA will not proceed
with the final rulemaking and both the offset and highway sanctions
will be applied immediately via a letter and a Federal Register notice.
Therefore, any comments which could affect this interim final
determination must be submitted in response to the proposal to
reinstate the interim approval and to stop the sanctions clock and lift
the stay and deferral of the sanction. All public comments received
will then be addressed in a subsequent final notice either
reinstituting the sanctions or stopping this sanctions process pursuant
to 40 CFR 51.31(d)(5). Parties interested in commenting should do so at
this time.
III. Administrative Requirements
Because New Jersey will have met the start-up requirements as
defined by
[[Page 70594]]
EPA, 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. Through this interim final determination action
authorized by the EPA rule on sanctions, 40 CFR 52.31(d)(ii), the
Agency concludes that it is more likely than not that the State will
have satisfactorily implemented the I/M program, therefore eliminating
the basis for imposition of sanctions. Therefore, it is not in the
public interest to apply sanctions when the State has submitted an
enforceable program which will start-up on December 13, 1999. 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
stay and defer sanctions while EPA completes its rulemaking process
regarding the lifting of the sanctions. 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).
---------------------------------------------------------------------------
\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 through the notice and comment process
announced in this Federal Register regarding the permanent stopping
of the sanctions clock and EPA will consider any comments received
in determining whether to reverse the action taken in this interim
final rule.
---------------------------------------------------------------------------
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. If the mandate is
unfunded, EPA must 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 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. Accordingly, the requirements of section 3(b) of Executive
Order 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.
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).
[[Page 70595]]
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
annual costs to State, local, or tribal governments in the aggregate;
or to 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 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 February 15, 2000. Filing a
petition for reconsideration by the Administrator of this interim 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, Intergovernmental relations, Ozone, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 7, 1999.
Jeanne M. Fox,
Regional Administrator, Region 2.
[FR Doc. 99-32515 Filed 12-16-99; 8:45 am]
BILLING CODE 6560-50-P
