Approval and Promulgation of Air Quality Implementation Plans; State of Maine; Interim Final Determination That Maine has Avoided the Deficiencies of its I/M SIP Revision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME060-7009; A-1-FRL-6203-4]

Approval and Promulgation of Air Quality Implementation Plans;

State of Maine; Interim Final Determination That Maine has Avoided the

Deficiencies of its I/M SIP Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: Elsewhere in today's Federal Register, EPA has published

rulemaking actions proposing to determine that the one hour ozone

standard no longer applies in Maine and other nearby areas, and

proposing approval of the State of Maine's motor vehicle inspection and

maintenance (I/M) program, under section 110 of the Clean Air Act

(CAA). Additionally, EPA is proposing to lift the requirement that

Maine submit an enhanced I/M program consistent with specific Clean Air

Act requirements for the Ozone Transport Region (OTR). Based on these

proposed actions, EPA is making an interim final determination, by this

action, that the State is more likely than not no longer subject to the

requirements prompting the original disapproval of the Maine enhanced

I/M SIP revision. This action will defer the application of the offset

sanction that is otherwise applicable beginning December 6, 1998, and

defers the future application of the highway sanction. Although this

action is effective upon publication, EPA will take comment on this

interim final determination as well

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as EPA's action proposing approval of the State's submittal and a

determination that the one-hour ozone standard no longer applies in

Maine and other nearby areas. EPA will publish a final notice taking

into consideration any comments received on EPA's proposed actions and

this interim final action.

DATES: Effective December 17, 1998. Written comments must be received

on or before January 19, 1999. Public comments on this document are

requested and will be considered before taking final action on this SIP

revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection (mail code CAA), U.S. Environmental

Protection Agency, Region I, One Congress Street, Suite 1100, Boston,

MA 02114-2023. Copies of the State submittal and EPA's technical

support document are available for public inspection during normal

business hours, by appointment, at the Office of Ecosystem Protection,

U.S. Environmental Protection Agency, Region I, One Congress Street,

11th floor, Boston, MA and the Bureau of Air Quality Control,

Department of Environmental Protection, State House-Station No. 17,

Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.

SUPPLEMENTARY INFORMATION: On November 19, 1998, Maine submitted a

revision to its State Implementation Plan (SIP) for an I/M program.

This submittal requested further flexibility from requirements

applicable to the OTR in light of the current air quality status of the

area. The SIP revision includes sections of the ``Maine Safety

Inspection Manual,'' and additional supporting material including

detailed authorizing legislation (L.D. 2223, ``An Act to Reduce Air

Pollution from Motor Vehicles and to Meet Requirements of the Federal

Clean Air Act''), administrative items, and a description of the

program being implemented. This action is being taken under section 110

of the Clean Air Act.

I. Background

On November 3, 1994, EPA conditionally approved in the Federal

Register (59 FR 55045) an I/M SIP submitted by the State. By means of a

June 6, 1997 letter, EPA notified Maine that the conditional approval

of the Maine enhanced I/M SIP revision had been converted to a

disapproval. The letter triggered the 18-month time clock for the

mandatory application of sanctions under section 179(a) of the CAA.

Therefore, the Act's offset sanction applies beginning December 6,

1998. To remedy that failure, on November 19, 1998, the State of Maine

submitted an I/M SIP revision to EPA, requesting approval action under

the CAA.

The purpose of this SIP revision was to remedy deficiencies

identified by EPA in its June 6, 1997 letter. Maine's submittal

requested further flexibility under the CAA to implement an I/M program

that does not meet all the specific requirements for an enhanced I/M

program in the OTR.

II. EPA's Current Rulemaking Actions

In the Proposed Rules section of today's Federal Register, EPA is

proposing approval of the State's I/M SIP revision to strengthen its

SIP, as well as an action proposing to determine that the 1-hour ozone

standard no longer applies in Maine and certain other nearby areas.

Additionally, EPA has proposed to remove the detailed CAA requirements

for an enhanced I/M program in the OTR for Maine based on the State's

demonstration that reductions from an I/M program will not

significantly contribute to attainment of the 1-hour ozone standard in

any area in the OTR.

EPA believes that, as a result of today's related rulemaking

actions, it is more likely than not that Maine is no longer subject to

the requirement to have an enhanced I/M program which triggered the

sanctions clock in Maine. This interim determination will not halt or

reset the sanctions deadline, but will continue to defer the

implementation of sanctions until EPA's proposal is finalized or the

State's I/M program is disapproved. Disapproval will result in

sanctions being imposed, as previously scheduled.

Today EPA is also providing the public with an opportunity to

comment on this interim final determination. If, based on any comments

received by EPA upon this interim final determination action and any

comments on EPA's proposed finding with respect to Maine's air quality

and proposed approval of the State's I/M SIP revision, EPA determines

that those actions are inappropriate and the SIP revision is not

approvable and, therefore, this final action was also inappropriate,

EPA will take further action to disapprove the State's I/M SIP

revision. If EPA's proposed approval of the Maine I/M SIP revision is

disapproved, then sanctions would be applied as required under section

179(a) of the CAA and 40 CFR 52.31.

III. EPA Action

Based on the proposed actions determining that the 1-hour ozone

standard no longer applies in Maine and removing the I/M requirement in

Maine set forth elsewhere in today's Federal Register, EPA believes

that it is more likely than not that the State is no longer subject to

the I/M requirement that prompted the original disapproval of the Maine

I/M SIP for which the June 6, 1997 disapproval finding was issued.

Therefore, EPA concludes that sanctions should be stayed until EPA

takes final action on those proposals and the Maine I/M SIP.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

Because EPA has preliminarily determined that Maine is no longer

subject to enhanced I/M requirements and therefore that the November

19, 1998 Maine I/M SIP revision is approvable, relief from sanctions

should be provided as quickly as possible. Therefore, EPA is invoking

the good cause exception under the Administrative Procedure Act (APA)

in not providing an opportunity for comment before this action takes

effect.1 5 U.S.C. 553(b)(B). The EPA believes that notice-

and-comment rulemaking before the effective date of this action is

impracticable and contrary to the public interest. The EPA has reviewed

the State's November 19, 1998 I/M SIP revision. Through this interim

final determination action, the Agency believes that it is more likely

than not that the State is no longer subject to the requirement for

which the sanctions clock was started.

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\1\ As previously noted, however, by this action EPA is

providing the public with a chance to comment on EPA's determination

after the effective date and EPA will consider any comments received

in determining whether to reverse such action.

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Therefore, it is not in the public interest to apply sanctions when

the State is most likely no longer subject to the requirement that

triggered the sanctions clock. Moreover, it would be impracticable to

go through notice-and-comment rulemaking on a finding that the State is

no longer subject to that requirement prior to the date sanctions would

take effect. Therefore, EPA believes that it is necessary to use the

interim final rulemaking process to defer sanctions while EPA completes

its rulemaking process. In addition, EPA is invoking the good cause

exception to the 30-day advance notice requirement

[[Page 69561]]

of the APA because the purpose of this notice is to relieve a

restriction. See 5 U.S.C. 553(d)(1).

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget, a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it is not

economically significant under E.O. 12866 and does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This rule will not have a significant impact on a

substantial number of small entities because it does not create any new

requirements. Therefore, because this rule does not create any new

requirements, I certify that this action will not have a significant

economic impact on a substantial number of small entities.

F. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that this action does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate, or to the

private sector. This Federal action imposes no new requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

G. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This action is not

a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be

effective upon publication.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401 et seq.

Dated: December 9, 1998.

John DeVillars,

Regional Administrator, Region 1.

[FR Doc. 98-33473 Filed 12-16-98; 8:45 am]

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