Approval and Incorporation of Employee Commute Option Program in the State Implementation Plan; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN39-3-6715; FRL-5158-1]

Approval and Incorporation of Employee Commute Option Program in

the State Implementation Plan; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On August 18, 1994, the United States Environmental Protection

Agency (USEPA) approved the Employee Commute Options (ECO) regulation

for Lake and Porter Counties, Indiana. On the same day (August 18,

1994), a proposed rule was also published which established a 30-day

public comment period noting that, if adverse comments were received

regarding the direct final rule, the USEPA would withdraw the direct

final rule and publish an additional final rule to address the public

comments. Adverse comments were received during the public comment

period from the Indiana Chamber of Commerce, the Northwest Indiana

Forum, three affected employers, three motorcycle associations, and

three individuals. This final rule summarizes these comments and

USEPA's responses and finalizes the approval of the ECO program for

Lake and Porter Counties.

EFFECTIVE DATE: This action will be effective on April 7, 1995.

ADDRESSES: Copies of the SIP revision, public comments and USEPA's

responses are available for inspection at the following address: (It is

recommended that you telephone Jessica Radolf at (312) 886-3198 before

visiting the Region 5 Office.) United States Environmental Protection

Agency, Region 5, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

A copy of this SIP revision is available for inspection at: Office

of Air and Radiation (OAR), Docket and Information Center (Air Docket

6102), room 1500, U.S. Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Jessica Radolf, Regulation Development

Section (AR-18J), Regulation Development Branch, Air and Radiation

Division, United States Environmental Protection Agency, Region 5, 77

West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)

886-3198.

SUPPLEMENTARY INFORMATION:

I. Background Information

The ECO regulations (326 Indiana Administrative Code Article 19)

discussed in this rule were submitted on February 25, 1994, by the

Indiana Department of Environmental Management (IDEM) for the severe

ozone nonattainment area that includes Lake and Porter Counties. These

rules were submitted to satisfy section 182(d)(1)(b) of the Clean Air

Act (Act) which requires that employers in severe ozone nonattainment

areas with 100 or more employees at a worksite participate in a trip

reduction program. On August 18, 1994 (59 FR 42506) the USEPA approved

the ECO regulation as a revision to the Indiana ozone SIP. (For further

information refer to the August 18, 1994, final rule.) Because adverse

comments were received regarding the direct final rule, USEPA removed

the direct final rule on November 7, 1994 (59 FR 55368). This final

rule addresses the comments which were received during the public

comment period and announces USEPA's final action on the

[[Page 12696]] ECO regulation for Lake and Porter Counties.

II. Public Comments and USEPA Responses

Comment

Several commenters believe that employees will be forced to change

their commuting habits. Employees note that driving is a privilege and

that the USEPA is trying to take it away with the ECO program. There is

concern that employees will face substantial penalties if they do not

meet the ECO regulations. Employers believe they will be required to

force their employees to change their commuting habits. The employers

note that ECO will create opportunities for legal challenges from angry

employees against employers put in the position of infringing on

employee's commuting choices and personal schedules.

USEPA Response

There is nothing in the Act that would force an employee to change

commuting habits. The Act requires employers to provide incentives to

employees so that employees may choose alternatives to driving alone.

The Act gives employers flexibility to use any incentives they choose

to promote compressed work weeks, mass transit, vanpools, carpools,

telecommuting, bicycling, and walking. An employee may accept or reject

an employer's incentives to stop driving alone to work.

Many employees will benefit from the ECO program. Coordinated

ridesharing programs will facilitate carpooling and vanpooling that can

reduce employee stress and save employees money. Efforts by employers

to support coordinated transportation planning at the regional level

may improve transportation services, such as added bus routes, so that

employees will have more choices in how they get to work. Guaranteed

ride home programs have been found to cost employers very little and

provide assurance to employees who do not drive to work that their

transportation needs can be met in case an emergency arises.

Consequently, the privilege of driving is not being taken away with

the ECO program and employees will not face penalties for not meeting

the ECO requirements. Employees will voluntarily decide whether or not

to change their commuting habits. Conversely, employers will not be

required to force their employees to change their commuting habits.

Employers will develop a program of incentives with the goal of

influencing their employees to voluntarily decide to commute

differently.

Comment

One commenter objects to the need for an ECO program since new cars

are built to be much cleaner. The commenter notes that if the ECO

program goes into affect, money developing these cleaner cars will have

been wasted since people can't drive the clean cars.

USEPA Response

The Act requires implementation of an ECO program in those areas

that have been classified as severe or extreme nonattainment for ozone

or serious nonattainment for carbon monoxide. Fourteen areas in eleven

States, including Lake and Porter Counties in Northwest Indiana, must

implement an ECO program.

These severe and extreme ozone nonattainment areas will have to

reduce emissions by a very large amount to achieve the health-based

ambient air quality standard for ozone. A study currently being

conducted for the Chicago, Milwaukee, and Northwest Indiana areas by

the Lake Michigan Air Directors Consortium and the States of Indiana,

Illinois, Wisconsin, and Michigan indicates that current levels of

emissions, considering growth, will need to be reduced by as much as 40

to 60 percent, or more to achieve attainment of the ozone air quality

standard by the year 2007. Implementation of numerous control measures

for stationary, area, and mobile sources of emissions will have to

occur to achieve this percentage reduction. Mobile sources, which

include automobiles, account for almost 47 percent of the ozone

pollution in Northwest Indiana.

The growth in the use of automobiles is one of the primary reasons

it has been difficult to achieve better ozone air quality. Vehicle

miles traveled have experienced a growth rate over the past 25 years

which is nearly three times the rate of the population growth. While

hundreds of millions of dollars have been invested over the past 25

years to reduce vehicle emissions by applying good technology to both

the vehicles and the fuel, it is predicted that the growth in total

emissions due to continued growth in vehicle miles traveled may

eventually outweigh those gains.

The ECO program is part of the Act's strategy to address the growth

in vehicle miles traveled. The purpose of the ECO program is to reduce

air pollution caused by vehicle traffic and congestion through

reductions in the number of work-related drive-alone trips. Although

work-related commute travel is only about a third of all travel, it is

uniquely suited to promote alternatives to single occupant vehicle

travel. There are concentrations of people going to the same place at

the same time who can share rides. The ECO program was mandated by

Congress because Congress believes there is a need to address how

people travel as a part of the solution to cleaning the air and

reducing travel congestion.

Therefore, even though new cars are built to be much cleaner, there

is a need for ECO and the money spent to develop cleaner cars will not

have been wasted. The ECO is a means to reduce, not eliminate,

automobile usage and, thus, maintain the emission reduction benefits

derived from cleaner cars.

Comment

One commenter opposes ECO as a ``band-aid'' solution to the ozone

problem. The commenter notes that the appropriate approach is for the

Federal Government to mandate that the automobile manufacturers produce

more natural gas powered vehicles. The commenter points out that

natural gas is plentiful in this country, inexpensive and clean

burning, and that the technology exists. The commenter notes that all

that is needed is to make natural gas available to the consumer. The

commenter suggests that the phase-in of natural gas vehicles should

begin now, so future generations naturally have that option.

USEPA Response

A major goal of the Act is to promote vehicles that pollute less

than conventional gasoline powered vehicles or not at all. Act

initiatives include promotion of natural gas vehicles which are

recognized as an available and clean technology.

The Clean Fuel Fleet (CFF) (section 246) program explicitly

addresses the phase-in of lower emitting vehicles and trucks beginning

in model year (MY) 1998 for fleets of 10 or more vehicles, that are

either centrally fueled or determined to be ``capable'' of being

centrally fueled, and which are located or primarily operated in an

affected nonattainment area. The CFF program will require that

specified percentages of a covered fleet operator's new vehicle

acquisitions in a given model year consist of low emitting vehicles.

The light-duty clean fuel vehicle (up to 8,500 pounds GVWR) phase-in

requirements are 30 percent in MY 1998, 50 percent in MY 1999, and 70

percent thereafter. The heavy-duty clean fuel vehicle (8,500 to 26,000

pounds [[Page 12697]] GVWR) phase-in requirement is 50 percent each

year starting in MY 1998. Fleet owners will receive emission credits

for purchasing ultra low emitting vehicles.

USEPA ECO guidance issued on December 17, 1992, recognizes the

importance of encouraging the use of vehicles operated by means other

than a gasoline or diesel operated internal combustion engine. For the

purpose of calculating the average passenger occupancy (APO), States

may develop factors to be applied to the vehicle count which would

reflect the lower emission levels from alternatively fueled vehicles

that include natural gas vehicles.

Comment

Several commenters believe the program will result in great costs

to area ECO employers, but will not result in any environmental

benefits. The commenters cite that the results of an ECO pilot project

in Northwest Indiana show that despite great expense and sincere effort

to make the program successful, employees simply were not responding.

USEPA Response

As discussed above, the ECO program is part of the Act's strategy

for addressing the growth in vehicle miles traveled. Congress mandated

ECO as a starting point for changing travel behavior so air quality

problems associated with single-occupancy automobiles usage can be

solved. The program should not be thought of as a short-term effort. It

is really the beginning of a ten- or twenty-year effort to expand

employees' choices and opportunities for travel. The funding provisions

of the Intermodal Surface Transportation and Efficiency Act make it

possible for Federal dollars to be used for public transportation

projects which can support ECO long-term goals. The USEPA believes that

the ECO program will play a significant role in making people aware of

how they travel and this awareness will eventually extend beyond work-

related trips to trips taken throughout the day. This awareness will

have important implications related to traffic congestion, air quality,

climate change and energy usage.

The results of the ECO pilot project cannot be used to substantiate

claims that ECO will not work in Indiana. Employer plans only began to

be implemented in the late spring of 1994 and there has not been enough

time to evaluate effectiveness or costs. In addition, participants in

the ECO pilot project were not required to develop the full scale

compliance plans that will be required when the program is fully

implemented.

Comment

Several commenters address the unlikely success of carpooling in

Northwest Indiana. The commenters note that employees of any one

company are spread out over a wide geographic area, and many worksites

have multiple shifts beginning during the peak travel period of 6:00

a.m. to 10:00 a.m. The commenters also discuss that the nature of their

work requires that employees have use of their car at all times. The

commenters note that they often do errands on the way to and from work,

such as taking children to and from daycare, and are concerned about

handling a family emergency that may occur in the middle of the day.

USEPA Response

Carpooling and vanpooling will be important elements of many ECO

programs. While there will always be employees that cannot carpool

because of individual needs, there will be many employees that will be

able to carpool. Moreover, the needs of commuters will change over

time. For example, employees that must drop children off at daycare

currently may be able to carpool in the future when their children are

older. The ECO program provides an opportunity to establish commuting

options, such as carpooling, public transit or other alternatives, to

meet future commuting needs.

Employers cannot determine that their employees are spread out over

too wide a geographic area for carpooling to succeed until they have

conducted their APO surveys that include employee locations and

attitudes. Even if employees are spread out over a large area, there

may be small pockets of employees willing to carpool. In addition, more

employers in close proximity may operate cooperative carpooling

programs in which their employees would be given the opportunity to

carpool together.

The potential success of carpooling in any area will largely be

determined by the amount of effort by employers to provide educational

programs and measures that support ridesharing. Guaranteed ride home

programs provide assurance to employees who do not drive to work that

their transportation needs can be met in case of a midday emergency.

All of the participating employers in the Northwest Indiana ECO pilot

project have included a guaranteed ride home program in their

compliance plan. Employers may also establish on-site amenities that

will make it less necessary for employees to have their own vehicle,

including automatic teller machines, cafeterias, and daycare

facilities.

Other support measures for carpooling include: offering

preferential or subsidized parking for carpools and vanpools; charging

drive alones for parking; cashing out parking with cash equivalents to

free parking; sponsoring or subsidizing carpools and vanpools;

providing comprehensive rideshare matching services; subsidizing

shuttles during midday to local shopping areas; and providing company-

owned vehicles for ridesharing.

Several alternative measures would address the concern over

multiple shifts during the peak travel period. The ECO can be looked at

as an opportunity for employers to reevaluate how they do business. At

some worksites, it may be possible to reschedule shifts by reducing the

number of starting times to consolidate the number of employees

arriving at worksites at the same times. Other alternatives include

changing work schedules to accommodate compressed work weeks in which

employees work longer shifts over fewer days. This gives employers the

opportunity to offer their employees more favorable schedules such as

four day work weeks and three-day weekends. Some employers may want to

allow certain employees to telecommute, or work at home, one or two

days a week.

Employers can also adopt incentive programs to encourage employees

to use public transit if it is available. Where public transit is not

available, employers may want to turn to the private sector and sponsor

subscription bus services. Employers can also improve facilities to

promote bicycle use and walking options.

Comment

Several commenters object that the ECO program is required all year

long, although the ozone season is only April through October. The

commenters note that high ozone levels typically are recorded only

during exceptionally hot and dry periods in June, July or August.

USEPA Response

The ozone season in Indiana is April through September, not

October. However, excessive driving of single occupied vehicles during

the 6 a.m. to 10 a.m. peak commuting period and the resulting traffic

congestion occurs all year long. Indiana chose to implement its ECO

program on an annual basis because the State believes it would be

difficult to change commuting habits, such as reforming carpools, just

in the spring and summer. The State believes [[Page 12698]] it makes

financial sense, as well as practical sense, to implement several of

the alternative commuting measures on a year-round basis, thereby

avoiding continual start-up costs and the initial resistance of

commuters to changing their commuting habits.

Comment

Several commenters note that high ozone levels have been recorded

only in one urbanized area of Lake County and no monitoring data exist

to justify expansion of the ECO program to all of Lake County or any of

Porter County.

USEPA Response

Lake and Porter Counties, Indiana are part of the Chicago

consolidated metropolitan statistical area (CMSA) as determined by the

census bureau. Section 107(d)(4)(A)(iv)of the Act requires that the

boundaries of any ozone nonattainment area classified as serious,

severe, or extreme by operation of law include the entire CMSA.

Congress thus ensured that the entire area contributing ozone forming

pollutants would be included in the nonattainment area. The inherent

nature of ozone formation is that volatile organic compounds and oxides

of nitrogen are emitted in one area and carried downwind while reacting

in the presence of sunlight to form ozone. Thus, the highest

concentrations of ozone are not necessarily experienced in the area

producing the greatest amount of pollutants but instead the highest

ozone readings may be recorded many miles downwind.

Section 181(a) of the Act also requires that the years to consider

when determining the classification of an area were to be the years

1987 to 1989. In the case of Lake and Porter Counties, the monitoring

site at Ogden Dunes in Porter County recorded 4 days during 1987, 10

days during 1988, and 0 days during 1989, with ozone exceeding the

National Ambient Air Quality Standard (NAAQS). The highest 1-hour ozone

level at the Ogden Dunes site was during 1988 and was 0.192 parts per

million (ppm). The monitoring site in Lake County with the most ozone

exceedances during this time period was in Hammond, Indiana which

recorded 1 exceedance day during 1987, 5 days during 1988, and 0 days

during 1989. The highest 1-hour ozone concentration was 0.186 ppm.

However, the sites in Lake and Porter Counties were not the highest

sites in the CMSA. The monitoring site with the highest recorded ozone

levels in the CMSA is located in Kenosha County, Wisconsin. This site

recorded 18 days during 1988 that exceeded the ozone NAAQS with the

highest concentrations being 0.222, 0.193, 0.190 and 0.187 ppm. Thus,

this site was used as the ``design value'' site and determined the

classification of the entire CMSA, as required by the Act.

Therefore, the entire Chicago CMSA is, by operation of law,

classified as a severe ozone nonattainment area and the Act requires

that all counties in the area must be included in the ECO program.

Comment

Several commenters are concerned that employer monitoring of the

success of ECO plans cannot be determined with any degree of accuracy.

The commenters note that employer monitoring is unreasonable and

requires resources unavailable to most employers.

USEPA Response

Employers in Northwest Indiana will be required to evaluate the

success of their ECO program 1 year after the initial plan submittal

and annually thereafter. Employers will be required to resurvey their

employees to calculate the APO attained. The survey and survey methods

will be the same as the initial survey conducted, insuring consistency

between surveys. Employers will receive computer software developed by

Purdue University--Calumet to electronically calculate the APO and do

cross-tabulations.

During the year, employers can monitor participation in their

programs to determine participation levels and whether there is a need

to make program modifications. A variety of methods that are not beyond

the means of Northwest Indiana employers can be used to monitor

employee participation, including but not limited too: registering

program participants; monitoring preferential parking; having

supervisors complete weekly reporting forms; having employees complete

weekly self-reporting forms; and conducting periodic surveys. The

degree of accuracy in monitoring will be determined by the honesty of

employees reporting how they are commuting. Since employees are not

facing any penalties for not participating in an employer's program,

there should be little incentive to be untruthful.

Comment

Several commenters are concerned that Northwest Indiana does not

have a regional public transportation system in place. As such, most

area employers do not have the option of encouraging or providing

financial incentives to their employees to use transit. In addition,

commenters note their concern over potential safety problems from their

employees using transit in high crime areas or walking several blocks

along dark roads from bus stops.

USEPA Response

ECO provides an opportunity for employers to get involved in

regional transportation planning issues. The Northwest Indiana Regional

Planning Commission has proposed extensive improvements in the

transportation network in Lake and Porter Counties. The Indiana

Transportation Association, the statewide organization of public and

private transit providers, is working with local transit agencies and

state representatives to develop a legislative initiative for funding

transit improvements statewide, including Lake and Porter Counties.

There are full-scale public transit systems in place in the cities

of Hammond and Gary and a small transit system in the city of East

Chicago that can provide alternatives for employees. Hammond Transit

has recently extended its bus service on Calumet Avenue into the town

of Munster. There are also a number of private transit companies

willing to work with employers subject to ECO to provide subscription

bus services.

The Congestion Mitigation and Air Quality (CMAQ) provision of the

Intermodal Surface Transportation and Efficiency Act (ISTEA) is

providing money that is enabling the transit agencies in Northwest

Indiana to provide expanded service. These funds have enabled the

region to launch a tri-city link-up pilot project which involves the

interconnection of bus services between the central business districts

of Gary, East Chicago, and Hammond. This pilot project has proven

extremely successful and will most likely be continued. The city of

Gary has been doing a study of expanding transit service into the

cities of Griffin, Highland, and Munster and linking up with the

Hammond transit service in Munster. Gary Transit has recently submitted

a proposal for CMAQ funds to run a pilot of the actual service. In

addition, several new park-and-ride facilities, which will be staging

areas for mass transit, vanpools, carpools, and subscription bus

services, are being designed and will be paid for with CMAQ funds.

Concern over the lack of safety due to poor walking or safety

conditions can be addressed by working with the appropriate entities to

have lighting and walking facilities improved; relocating transit stops

so they are closer to the worksite; or providing shuttle service from

transit stops to the worksite. [[Page 12699]] Where transit is not an

option, there are several measures discussed above that can be used to

encourage employees to drive to work in a means other than a single

occupied vehicle.

The funding available through ISTEA as well as the requirements of

the ECO program should be seen as an opportunity to improve the

provision of public transportation in Lake and Porter Counties and

other similar areas.

Comment

One commenter opposes the mandate that public schools participate

in the ECO program. The commenter noted that several characteristics of

public schools will make them unable to comply successfully with the

ECO program and will divert needed resources from the primary goal of

educating students. The commenter explained that public school work

schedules are inflexible prohibiting adjustment of work hours to

accommodate flexible hours or compressed work weeks; and providing

monetary incentives to staff is prohibited since funds can only be

dispersed for educational expenses. The commenter noted the ECO program

discriminates against employees of larger schools and favors employees

of smaller schools; students account for the majority of drivers and

are not included in the program; and the school district does not get

credit in the average passenger occupancy calculation for the 6000

students that are transported by school bus.

USEPA Response

The USEPA is committed to finding ways for States to implement the

ECO program so that the burden on affected employers is minimized.

However, USEPA cannot categorically exempt any employers from any of

the requirements of the ECO program. It is clear that public schools

must be subject to the program and so long as they demonstrate a good

faith effort to meet the target average passenger occupancy, they will

not be penalized.

There are ways for public schools to encourage employees to commute

differently that do not involve large expenditures or manipulation of

work schedules. Because the school work schedule is fixed, there are a

large number of employees arriving at the worksite at the same time

making it possible to encourage ridesharing. Several of the measures

listed above which would support ridesharing are inexpensive such as

preferential parking for vehicles with more than one passenger;

guaranteed ride home programs; comprehensive rideshare matching

services; and educational programs that promote ridesharing.

The ECO program does not discriminate against employees of larger

schools in favor of employees of smaller schools. Congress selected a

threshold of 100 employees because it is Congress' intent to target

employers who have enough employees arriving in the peak period to

establish a viable ECO program. The USEPA recognizes there are

situations in which the majority of an employer's workforce follows a

non-standard schedule, and the number of employees arriving in the peak

period is small enough to make ridesharing and special employer-

provided services difficult. Therefore, under the December 17, 1994,

USEPA ECO Guidance, a de minimis exemption may be made at the State's

option whereby employers with worksites at which fewer than 33

employees report to work during the peak travel period are not subject

to the requirements. The Indiana ECO rule has adopted this de minimis

exemption. While the Indiana ECO rule applies to those employers which

employ 100 or more employees at a single worksite, the worksite must

have 33 or more employees reporting between 6 a. m. and 10 a.m. on any

single day, Monday through Friday.

The Act does not require the inclusion of students in the State ECO

program even though students may account for the majority of drivers in

some schools. However, the Act does not preclude the State from

developing a separate trip reduction regulation that would specifically

address the commuting habits of students. In addition, students riding

school buses are not included in the APO calculations because they are

not employees commuting to the worksite. Other types of businesses and

worksites, such as hospitals and shopping centers for example, have

large numbers of nonemployees coming to the worksite as well.

Comment

Several commenters claim that ECO precludes the use of motorcycles

as a commuting option without consideration of convenience,

contributions to reduced congestion, economic hardship imposed by such

prohibitions, or environmental benefits such as fuel efficiency and

less manufacturing pollution. Commenters believe the Indiana ECO rule

does not address the rights of those Indiana citizens who choose to

commute to work using a motorcycle and recommend that motorcycles be

exempted from the program. The commenters fear that ECO could lead to a

ban of motorcycle operation between the hours of 6 a.m. and 10 a.m.

Commenters believe that the methodologies used to calculate the average

vehicle occupancy (AVO) and APO diminish the value of motorcycles.

USEPA Response

The ECO program requires employers with 100 or more employees to

implement programs that will encourage their employees that arrive at

their worksite between 6 a.m. and 10 a.m. to commute to work by a means

other than a single occupied vehicle. Affected employers will conduct

surveys to determine the APO of the vehicles arriving at their

worksites between 6 a.m. and 10 a.m. and then develop a program to

encourage their employees that arrive in single occupied vehicles to

use an alternative means of commuting.

Motorcycles used to commute to an affected worksite will be counted

as vehicles since they have internal combustion engines. While USEPA

recognizes the need for additional information on motorcycle emissions

and commute patterns, current data show that motorcycles emit

significantly more pollutants that help to form ozone than do light-

duty vehicles (e.g., passenger cars) on a grams/mile basis.

Individuals who ride a motorcycle to an affected worksite between 6

a.m. and 10 a.m. will be encouraged to find an alternative means of

commuting to that worksite. However, as discussed above, there is

nothing in the Act that would force motorcyclists to change commuting

habits. Motorcyclists, like all employees, may accept or reject an

employer's incentives to stop driving. Many motorcyclists could benefit

by participating in carpools and vanpools, or using public transit

programs that reduce stress and save money.

Consequently, it is not necessary to exempt motorcycles from the

ECO program since motorcycles have the same rights under the program as

all other vehicles. ECO does not preclude the use of motorcycles as a

commuting option; and does not eliminate the rights of Indiana citizens

who choose to commute by motorcycle. In addition, the methodologies

used to determine the AVO and APO do not need to be modified since they

appropriately identify the number of vehicles with internal combustion

engines on the road during the 6 a.m. to 10 a.m. peak period and the

number of people traveling in those vehicles.

III. Final Rulemaking Action

The State of Indiana has met the requirements of the Act by

revising the Indiana ozone SIP to include an ECO

[[Page 12700]] program. Therefore, USEPA approves the ECO program for

Lake and Porter Counties.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

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 any SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, USEPA may certify 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 government entities with jurisdiction over populations

of less than 50,000.

The SIP approvals under section 110 and subchapter I, part D, of

the 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 impose any new requirements, I certify

that it does not have a significant impact on small entities affected.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Act forbids USEPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by May 8, 1995. 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,

Incorporation by reference, Ozone.

Dated: February 10, 1995.

David A. Ullrich,

Acting Regional Administrator.

Part 52, 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. 7401-7671q.

Subpart P--Indiana

2. Section 52.770 is amended by adding paragraph (c)(92) to read as

follows:

Sec. 52.770 Identification of plan.

* * * * *

(c) * * *

(92) On February 25, 1994, Indiana submitted an employee commute

option rule intended to satisfy the requirements of section

182(d)(1)(B) of the Clean Air Act Amendments of 1990.

(i) Incorporation by reference. (A) Title 326 of the Indiana

Administrative Code, Article 19 MOBILE SOURCE RULES, Rule 1, Employee

Commute Options. Filed with the Secretary of State, October 28, 1993,

effective November 29, 1993. Published at Indiana Register, Volume 17,

Number 3, December 1, 1993.

* * * * *

[FR Doc. 95-5446 Filed 3-7-95; 8:45 am]

BILLING CODE 6560-50-P