Approval and Promulgation of Air Quality Implementation Plans; State of Alaska; Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AK-12-7100; FRL-5826-8]

Approval and Promulgation of Air Quality Implementation Plans;

State of Alaska; Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: EPA is granting interim approval of a State Implementation

Plan (SIP) revision submitted by Alaska. This revision does not affect

or change the currently operating basic inspection and maintenance (I/

M) program in the Municipality of Anchorage (MOA) and the Fairbanks

North Star Borough (FNSB). The intended effect of this action is to

approve the level of effectiveness credit for the state's

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existing de-centralized I/M program for an interim period to last 18

months, based upon its good faith estimate of the program's

performance. This action is being taken under section 110 of the Clean

Air Act and section 348 of the National Highway Systems Designation

Act.

EFFECTIVE DATE: This final rule is effective on June 18, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

Office of Air Quality, U.S. Environmental Protection Agency, Region 10,

1200 Sixth Ave., Seattle, Washington 98101. They are also available for

inspection at the Alaska Department of Environmental Conservation, 410

Willoughby, Suite 105, Juneau, Alaska 99801-1795.

FOR FURTHER INFORMATION CONTACT: Ed Jones, Office of Air Quality (OAQ-

107), EPA, Seattle, Washington 98101, (206) 553-1743.

SUPPLEMENTARY INFORMATION:

I. Background

II. Public Comments/Response to Comments

III. Final Rulemaking Action

IV. Requirements for Permanent I/M SIP Approval

V. Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Unfunded Mandates Act

D. Submission to Congress and the General Accounting Office

E. Petitions for Judicial Review

I. Background

On October 10, 1996 (61 FR 53163), EPA published a notice of

proposed rulemaking (NPR) for the State of Alaska. The NPR proposed

interim approval of Alaska's credit claim for its existing de-

centralized basic inspection and maintenance program, submitted to

satisfy the applicable requirements of both the Clean Air Act (CAA) and

the National Highway Safety Designation Act (NHDSA). The formal SIP

revision submitted by the Alaska Department of Environmental

Conservation was received on March 26, 1996. In that submittal the

state proposed a number of modifications to the plan in addition to the

request that the current de-centralized I/M program be allotted 85% of

the credit of centralized programs. These additional modifications,

noted in the NPR, have not been acted upon, and are therefore not

approved. They will be acted upon in a future action by EPA.

As described in the earlier notice, the NHSDA directs EPA to grant

interim approval for a period of 18 months to approvable I/M submittals

under this Act. The NHSDA also directs EPA and the states to review the

interim program results at the end of that 18-month period, and to make

a determination as to the effectiveness of the interim program.

Following this demonstration, EPA will adjust any credit claims made by

the state in its good faith effort, to reflect the emissions reductions

actually measured by the state during the program evaluation period.

The NHSDA is clear that the interim approval shall last for only 18

months, and that the program evaluation is due to EPA at the end of

that period. Therefore, EPA believes Congress intended for program

evaluations to start up as soon as possible, so that at least six

months of operational program data can be collected to evaluate the

programs' effectiveness before the end of the interim period.

The program evaluation to be used by the state during the 18-month

interim period must be acceptable to EPA. The Environmental Council of

States (ECOS) group has developed such a program evaluation process

which includes both qualitative and quantitative measures, and this

process has been deemed acceptable to EPA. The core requirement for the

quantitative measure is that a mass emission transient test (METT) be

performed on 0.1% of the subject fleet, as required for enhanced

programs by the I/M Rule at 40 CFR 51.353 and 366. EPA believes METT

evaluation testing is not precluded by the NHSDA, and, therefore, is

still required to be performed by states implementing enhanced I/M

programs under the NHSDA and the CAA.

The need for METT testing in states that have basic programs was

apparently not included among the ECOS recommendations. The Agency

favors the introduction of METT testing for de-centralized basic

programs attempting to demonstrate that their programs are more

effective than the 50% discount applied by EPA in the past. Since these

tests are not required by regulation, however, the Agency can only

recommend them as an appropriate tool for evaluating program

effectiveness, and ask states who decide to reject the recommendation

to design their evaluations in a way that the goals of METT auditing

can be met adequately through another means.

Per the NHSDA requirements, this interim rulemaking will expire on

November 19, 1998. A full approval of Alaska's final I/M SIP revision

(which will include the state's program evaluation and final adopted

state regulations) is still necessary under section 110 and under

sections 182, 184 or 187 of the CAA. After EPA reviews Alaska's

submitted program evaluation and regulations, final rulemaking on the

state's SIP revision will occur.

Specific information regarding Alaska's I/M credit claim, the

justification presented by the state, the rationale for EPA's proposed

action, and the specific proposed SIP revisions acted upon and not

acted upon are explained in the October 10, 1996, NPR and will not be

restated here.

II. Public Comments/Response to Comments

No comments were submitted to the docket during the comment period

for the notice of proposed rulemaking, published in the October 10,

1996, Federal Register.

III. Final Rulemaking Action

EPA is granting interim approval of Alaska's claim for

decentralized I/M program effectiveness as a revision to the SIP. The

approval will cover a period of eighteen months, allowing the state to

demonstrate the ``actual'' effectiveness of its program.

IV. Requirements for Permanent I/M SIP Approval

This approval is being granted on an interim basis for a period of

18 months, under the authority of section 348 of the National Highway

Systems Designation Act of 1995. At the end of this period, this

interim approval will lapse. After Alaska submits a request for

approval, EPA will take final rulemaking action on the state's SIP

revision, under the authority of section 110 of the Clean Air Act.

Final approval of Alaska's plan will be granted based upon the

following criteria:

(1) The state has complied with all the conditions of its

evaluation commitment to EPA,

(2) EPA's review of the state's program evaluation confirms that

the appropriate amount of program credit was claimed by the state and

achieved with the interim program,

(3) Final program regulations are submitted to EPA, and

(4) The state's I/M program continues to meet all of the

requirements of 40 CFR Part 51, Subpart S.

V. Administrative Requirements

Nothing in this action should be construed as permitting or

allowing 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

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relation to relevant statutory and regulatory requirements.

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

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

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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

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, EPA may certify that the rule will not have a

significant 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.

Interim approvals of SIP submittals under section 110 and

subchapter I, part D, of the CAA 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

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a 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).

If the interim approval is converted to a disapproval under section

110(k), based on the state's failure to meet the commitment, it will

not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates Act

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 on 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. 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 July 18, 1997.

Filing a petition for reconsideration by the Administrator of this

final rule to conditionally approve the Alaska I/M SIP, on an interim

basis, 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) of the Administrative Procedures Act).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Reporting and recordkeeping requirements.

Dated: May 2, 1997.

Charles Findley,

Acting Regional Administrator, Region 10.

[FR Doc. 97-13038 Filed 5-16-97; 8:45 am]

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