[Federal Register Volume 66, Number 7 (Wednesday, January 10, 2001)]
[Rules and Regulations]
[Pages 1868-1871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-571]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH036-7136A; A-1-FRL-6928-7]


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.

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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, (617) 918-1045.

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.
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    \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.
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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

[[Page 1869]]

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

[[Page 1870]]

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.

[[Page 1871]]

 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:


Sec. 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 Sec. 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:


Sec. 52.1525  EPA--approved New Hampshire state regulations.

* * * * *

                                          Table 52.1525--EPA--Approved Rules and Regulations \1\--New Hampshire
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                                                                     Date         Date
            Title/subject               State citation chapter   adopted  by    approved      Federal  Register       52.1520          Explanation
                                                  \2\               State        by EPA            citation
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                   *                  *                  *                  *                  *                  *                  *
Emission Amendments to Official Motor  NHCAR, Part Saf-C 3221A.     11/17/98      1/10/01  66 FR 1871                   (c)(59)  Part Saf-C 3221A
 Vehicle Inspection Req.                                                                                                          ``Emission Amendments
                                                                                                                                  to Official Motor
                                                                                                                                  Vehicle Inspection
                                                                                                                                  Requirements'' adopted
                                                                                                                                  on November 17, 1998;
Roadside Diesel Opacity Inspection     NHCAR, Part Saf-C 5800..     11/17/98      1/10/01  66 FR 1871                   (c)(59)  Part Saf-C 5800
 Program Rules.                                                                                                                   ``Roadside Diesel
                                                                                                                                  Opacity Inspection
                                                                                                                                  Program Rules''
                                                                                                                                  adopted on November
                                                                                                                                  17, 1998.
 
                  *                  *                  *                  *                  *                  *                  *
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\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.

[FR Doc. 01-571 Filed 1-9-01; 8:45 am]
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