Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Vehicle Inspection and Maintenance Program; Restructuring OTR Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH036-7163; A-1-FRL-6203-2]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire; Vehicle Inspection and Maintenance Program;

Restructuring OTR Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the New Hampshire

State Implementation Plan (SIP), which was submitted to EPA for

approval on September 4, 1998 by the Department of Environmental

Protection (DES). This submittal was supplemented by a letter dated

November 20, 1998 describing additional information about the New

Hampshire I/M program, and requesting further flexibility from

requirements applicable to the Ozone Transport Region (OTR) in light of

the current air quality status of the area. 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. This action is being

taken under section 110 of the Clean Air Act.

DATES: 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, JFK Federal Bldg., Boston, MA 02203.

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 Air Resources Division, Department of Environmental

Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-

2033.

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

SUPPLEMENTARY INFORMATION: On September 4, 1998, New Hampshire

submitted a revision to its State

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Implementation Plan (SIP) for vehicle inspection and maintenance (I/M).

This submittal was supplemented by a letter dated November 20, 1998

providing additional information about the New Hampshire I/M program,

and requesting further flexibility from requirements applicable to the

OTR in light of the current air quality status of the area. 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. This action is being

taken under Section 110 of the Clean Air Act.

I. Clean Air Act Requirements

Section 184(b)(1)(A) of the Act requires certain areas in the Ozone

Transport Region (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). New Hampshire is affected by

requirements of the Act related to I/M in certain areas of the State.

Specifically, under EPA's I/M rule, enhanced I/M programs would be

required in the Portsmouth-Dover-Rochester, New Hampshire ozone

nonattainment area, and the New Hampshire portion of the Boston-

Worcester-Lawrence ozone nonattainment area. This program was initially

submitted to fulfill New Hampshire's obligations to implement I/M

pursuant to these requirements. Because of EPA's parallel notice in

this Federal Register proposing that the 1-hour standard no longer

applies in New Hampshire, the State would only be required to submit an

I/M program because of its location in the OTR, as explained more fully

below.

By this action, EPA proposes to approve New Hampshire's submittal.

EPA has reviewed the State submittal against the requirements of the

Act and EPA's final I/M rule. The present version of 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 proposes to approve the program for several reasons.

First, New Hampshire has achieved all of its Clean Air Act control plan

requirements for overall emission reductions without I/M. That is, the

State has submitted an acceptable 15 percent VOC reduction plan, a 9

percent rate of progress plan, an attainment demonstration, and based

on 1996-1998 data in AIRS, has achieved attainment of the 1-hour ozone

standard without the implementation of a vehicle I/M program. In

addition, New Hampshire and all areas nearby, including Maine, Eastern

Massachusetts, and Rhode Island appear to have attained the 1 hour

ozone standard based on 1996-1998 data, as discussed elsewhere in the

Federal Register. Additionally, New Hampshire does not contribute to

nonattainment of the 1-hour ozone standard in any areas in the OTR (or

elsewhere) where that standard continues to be violated based on

evidence submitted by the State separately as part of their ozone

attainment demonstration. Therefore, EPA has concluded that the State

should not need to meet all the requirements for enhanced I/M in the

OTR. Section 176A of the Clean Air Act 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 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 1-hour ozone standard

anywhere in the OTR.

We propose the State has met the test of section 176A and it has

requested further flexibility in meeting the Clean Air Act requirements

for I/M in the OTR. EPA believes that New Hampshire's continued

participation in the OTR is beneficial, and that EPA's approval of this

I/M program will improve air quality. Therefore, in light of the above,

EPA is proposing to approve this I/M program as strengthening the SIP

despite the fact that it does not meet all requirements for enhanced I/

M in the OTR. Further, EPA did finalize the NOX SIP call for

22 States and the District of Columbia by notice dated October 27, 1998

(63 FR 57356). New Hampshire was not included among those States, but

EPA intends to conduct modeling to determine whether a SIP revision

under section 110(a)(2)(D)(i)(I) should be required from New Hampshire

in the future. Currently, EPA does not have evidence that emissions

from sources in New Hampshire significantly contribute to 1-hour

nonattainment downwind, but if EPA determines that sources in New

Hampshire significantly contribute to downwind nonattainment, today's

action will be revisited. EPA concludes that an enhanced I/M program is

not required in New Hampshire because control of emissions from an I/M

program would not contribute significantly to attainment of the 1-hour

ozone standard in any area of the OTR. A summary of EPA's analysis of

the State's I/M program is provided below.

II. I/M Regulation General SIP Submittal Requirements

On November 5, 1992 (57 FR 52950), EPA published a final regulation

establishing the I/M requirements, pursuant to sections 182, 184, and

187 of the Act. EPA made significant revisions to the I/M rule on

September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036).

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.

III. State Submittal

On September 4, 1998, and on November 20, 1998, the State of New

Hampshire submitted an I/M SIP revision for the entire State. A public

hearing for the September 4, 1998 submittal was held on August 24,

1998.

The I/M SIP submittal provides for the implementation of I/M in the

entire State of New Hampshire beginning on January 1, 1999. New

Hampshire will be implementing an annual, test and repair I/M program

which the State has designed to meet the requirements of EPA's

performance standard and most other requirements contained in the

federal I/M rule. Testing will be overseen by the Department of Safety

(DOS) and implemented by individual garages in the existing safety

inspection network. Aspects of the New Hampshire I/M program include:

anti-tampering testing of 1980 and later light duty vehicles and

trucks, enforcement by the existing windshield safety inspection

stickers, requirements for testing convenience, quality assurance, data

collection, no cost waivers, reporting, test equipment and test

procedure specifications, public information and consumer protection,

inspector training and certification, penalties against inspectors

which perform faulty inspections, and emission recall enforcement. An

analysis of the New

[[Page 69591]]

Hampshire program, and New Hampshire's demonstration of how the I/M

program meets many of the federal I/M SIP requirements, is provided

below.

A. Applicability.

The New Hampshire I/M regulations and authorizing legislation

specify that the I/M program be implemented statewide.

B. Enhanced I/M Performance Standard

The I/M program was designed, in part, to meet the enhanced I/M

performance standard for ozone precursors causing air quality problems

in New Hampshire. New Hampshire's program was designed to meet the

performance standard for volatile organic compounds (VOC) and nitrogen

oxides (NOX), under 40 CFR 51.351(h) of the I/M rule.

The State submitted a modeling demonstration using the EPA computer

model, MOBILE5b, showing that the enhanced performance standard will be

met. The State's demonstration shows that it expects to achieve the

reductions required by that section of the rule, and will utilize

additional benefits from reformulated gasoline to ensure that the total

reduction attributed to I/M meets federal I/M requirements.\1\

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\1\ Certain areas in New Hampshire are currently classified as

serious ozone nonattainment areas for the 1-hour standard. As such,

they are not clearly eligible for the OTR low enhanced I/M standard

in Sec. 51.351(h). As discussed above, in a separate Federal

Register, EPA is proposing that the 1-hour ozone standard no longer

applies in New Hampshire based on clean air quality measured from

1996-1998. After this occurs, New Hampshire will only be subject to

CAA enhanced I/M requirements by virtue of its inclusion in the OTR.

Therefore, EPA proposes to approve this program because the emission

reductions that would be achieved by a fully enhanced I/M program

are not required in this OTR area.

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C. Network Type and Program Evaluation

New Hampshire has chosen to implement a test and repair I/M network

program design. The State has assumed conservative assumptions for

credit claims relative to its network design in its demonstration that

it meets the performance standard. EPA believes that a further

demonstration is not necessary. Furthermore, EPA's OTR low enhanced

rule does not require that the State perform additional program

evaluations beyond the data reporting requirements of the I/M rule in

the future.

D. Adequate Tools and Resources

The State's SIP outlines the level of resources dedicated to the I/

M program, and includes descriptions of the funding expended and the

personnel utilized within DOS to implement the program. The SIP also

describes the role of DOS State Police enforcement personnel to be

utilized in enforcing the program, and outlines plans for 6 more

officers to be hired as part of the State Police Traffic Enforcement

Unit, further bolstering the program's enforcement and oversight. DES

will also play a role in implementing and analyzing the program.

Finally, DOS intends to raise the ``per test fee'' collected for each

inspection sticker sold to inspection stations, with the additional

funds going to the State Highway fund, which the DOS Commissioner is

authorized to spend on the I/M program implementation as needed.

The State has described both current and future plans to ensure

that adequate funding is provided to implement the program. While the

State has described in significant detail the plans it has to ensure an

effective program, the State has not dedicated funding to this effort.

While EPA is approving this I/M program as strengthening the SIP, it

does not meet EPA enhanced I/M rule requirements.

E. Test Frequency and Convenience

The New Hampshire SIP revision requires annual inspections for all

subject motor vehicles that are not older than 1980. The inspections

will be conducted in concert with the existing schedule for the annual

safety inspection program. Short waiting times and short driving

distances are not an issue since this will be part of the State's

existing safety inspection network, with longstanding stations

scattered throughout the state prepared to test all subject vehicles.

F. Vehicle Coverage

New Hampshire's I/M program covers all 1980 and newer model year

gasoline powered light-duty vehicles and light-duty trucks, registered,

or required to be registered, within the State. Based on discussions

with the State, EPA evaluated the effect of the fact that antique

vehicles are exempt and determined that such exemptions would not

prevent the program from achieving the performance standard. Legal

authority for the vehicle coverage requirement is contained in the New

Hampshire I/M rule and the July 1998 authorizing legislation. EPA

proposes to approve the submission as a strengthening of the SIP based

on the DES's submittal, although it has not met all EPA rule

requirements.

G. Test Procedures and Standards

The New Hampshire I/M SIP revision obligates the State to perform

anti-tampering checks of the nature described in the plan submission.

The State will be requiring these checks for 1980 and later model year

vehicles in the area. The following anti-tampering checks will be

performed: (1) check for the presence of the catalytic converter; (2)

check for air pump disablements; (3) check for PCV system disablements;

(4) check for evaporative system disablements; and (5) check for the

presence, and proper fit of the gas cap. In addition, the State of New

Hampshire will be requiring OBD2 system checks in accordance with EPA

rules, beginning in 2001. EPA proposes approval of the anti-tampering

testing program, but the State has not developed or submitted OBD2

rules at this time.

H. Test Equipment

In its September 4, 1998 submittal, New Hampshire's I/M SIP

revision describes procedures to follow to test vehicles. These

procedures are articulated in more detail in the Safety Inspection

Manual, and Saf-c 3200. The OBD2 testing program has not been fully

described or submitted.

The SIP does not include a ``real time'' data link, but instead

ensures that every vehicle which leaves a station leaves with either a

passing sticker or failing sticker. All those that are issued failing

stickers are later followed up by State Police actually physically

inspecting the failed vehicle to ensure that proper repairs were

performed. This will prevent vehicle owners from presenting themselves

for multiple initial tests, one of the primary reasons for a real time

data link. While a real time data link would still be helpful in

collecting data, the State intends to collect the necessary data.

I. Quality Control

The New Hampshire I/M SIP narrative and Saf-c 3200 outline the

quality control procedures. However, since no test equipment is

utilized, it is minimal. Efforts to ensure that documents related to

the inspection remain secure are already in place and enforced by the

State Police and by DOS as part of the existing safety inspection

program.

J. Waivers and Compliance via Diagnostic Inspection

Since New Hampshire is implementing largely an anti-tampering

program, it will not be issuing any waivers whatsoever, and this is

approvable.

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K. Motorist Compliance Enforcement

The State of New Hampshire has chosen to use a program of

windshield sticker based enforcement, based on its current safety

inspection program. Any vehicle driven without a valid sticker will

ultimately be caught by law enforcement officials, and failure to

comply at this point would result in registration being suspended, and

could result in a warrant for arrest being issued. The motorist

compliance enforcement program will be implemented primarily by the New

Hampshire Department of Safety (DOS). The enforcement strategy is

described in New Hampshire's September 4, 1998 submittal. The

enforcement strategy is designed to ensure a high rate of compliance

rate for all vehicles within a short time of the compliance deadline.

As described in the September 4, 1998 submittal, this will be

accomplished by a increased surveillance by law enforcement officials

to identify uninspected and unregistered vehicles. New Hampshire

estimates that over 99.5% of the vehicles in the State are registered.

Those vehicles operated without a valid safety inspection sticker are

fined, and put on notice that their registration will be suspended if

they do not comply. Those that still fail to comply may be issued a

bench warrant for arrest. In addition to the current enforcement

effort, DOS intends to secure additional funding for 6 new enforcement

officials dedicated to enforcement of the inspection requirement.

Funding of these officers will help ensure an even more effective

mechanism for enforcement of the inspection requirement. New Hampshire

does have a penalty system whose purpose is to deter noncompliance, but

the penalties imposed may not be a sufficient incentive to deter

noncompliance if a vehicle owner expects that significant repairs will

be required upon inspection.

This program is not viewed as intrusive to the general public, and

it is not likely that New Hampshire citizens will take additional steps

to avoid this I/M program. EPA is comfortable that, in light of the

type of vehicle ``testing'' being proposed, New Hampshire's program

will be enforced in a manner commensurate with the type of program

implemented, and emission reductions expected. However, this section of

the State's program does not meet Clean Air Act requirements to have

the program based on vehicle registration. Further, the State did not

make a demonstration that this ``pre-existing'' enforcement mechanism

would be more effective than registration denial would be, nor has it

committed to ensuring the continued effectiveness of sticker based

enforcement mechanism. EPA believes that a registration based program

would be more effective than sticker based enforcement since by the

State's own estimation, there is over a 99.5% compliance rate with the

vehicle registration requirement. Nevertheless, for reasons outlined

elsewhere in this notice, EPA believes that this program should be

approved because it will strengthen the SIP, despite the fact that it

does not meet the requirements for enhanced I/M under the Clean Air

Act. The legal authority to implement and enforce the program is

included in the New Hampshire State law and in DOS rules.

L. Motorist Compliance Enforcement Program Oversight

The New Hampshire I/M SIP revision provides for regular auditing of

its enforcement program and adherence to effective management

practices, including adjustments to improve the program when necessary.

According to the September 4, 1998 submittal from the DES, these

program oversight and information management activities include direct

enforcement of the inspection requirement by State Police. State Police

routinely conduct overt audits of the 2,500 inspection stations in the

State, and will reinstate their practice of initiating covert audits.

Any vehicle which leaves a inspection station with a reject sticker is

followed-up by the State Police physically inspecting each failed

vehicle to ensure proper repairs were performed. As stated earlier, the

State will be dedicating additional resources to this inspection

effort, and will provide additional training to officers stressing the

increased importance of these emission checks. The State's efforts for

the motorist compliance enforcement program are acceptable for the

purposes of strengthening the SIP.

M. Quality Assurance

The September 4, 1998 submittal from New Hampshire includes a

description of the quality assurance program. The program will include

operation and progress reports and overt and covert audits of emission

inspection facilities which are conducted by State Police and

Department of Safety officers. These officers are auditing to ensure

both the certified inspectors and the stations are following

established inspection requirements as codified under the

administrative rule Saf-c 3200. Included in these audits will be

documentation checks, and a check to determine if stickers and

reporting documents are secure. The State intends to further develop

audit procedures to implement the OBD2 testing program, and the State

envisions that further training will be required.

N. Enforcement Against Contractors, Stations and Inspectors

The New Hampshire I/M SIP revision describes specific sanctions

available in its enforcement against stations and inspectors which fail

to give proper inspections. An inspector can be given a criminal

violation and is disciplined administratively. Upon being given a

hearing, the inspector may be given ``6 points'' on their driving

record, which is the same penalty as for driving while intoxicated.

Further, inspection stations can have their privilege to inspect cars

suspended or revoked. While this section of the State's program may be

appropriate for the type of program the State is implementing for the

purpose of strengthening the SIP, it does not meet all I/M rule

requirements.

O. Data Collection, Analysis, and Reporting

The New Hampshire I/M SIP provides for collecting test data to link

specific test results to specific vehicles, I/M program registrants,

test sites, and inspectors. The SIP lists the specific types of test

data and quality control data which will be collected, which include:

date of inspection, station identification number, technician name,

customer name, vehicle ID and license plate number, vehicle make,

model, model year and mileage, pass/fail determination, reason for

failure, inspection sticker number, and repairs performed. As outlined

above and described in the September 4, 1998 submittal, the data will

be used to generate reports concerning test data, quality assurance,

quality control, enforcement, as well as determine the emission

benefits of the program.

P. Inspector Training and Licensing or Certification

The September 4, 1998 submittal describes the training and the

testing that is required of each inspector, prior to being certified to

perform these tests. The DOS has committed to perform additional

training for inspectors in advance of OBD2 testing being implemented.

Q. Improving Repair Effectiveness

In the September 4, 1998 submittal, the State committed to perform

additional training regarding the new anti-tampering checks that have

been added to the safety inspection program.

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However, the State maintains that mechanics will not need training

helping them repair these tampered vehicles because the type of repairs

that this anti-tampering will identify are relatively routine. The DES

does intend to provide additional OBD2 training in the future.

R. Compliance with Recall Notices

The revised New Hampshire I/M SIP will ensure that vehicles subject

to its I/M program, that are included in either a voluntary emission

recall or a remedial plan determination pursuant to the CAA, have had

the appropriate repairs made prior to the inspection. Vehicles that

have received recall notices will be followed up by New Hampshire law

enforcement in ``the same way (that) vehicles that fail the inspection

* * * are followed up * * *'' This means that all vehicles which

receive a recall notice will be followed-up by a law enforcement

official to ensure that appropriate repairs are performed.

S. On-Road Testing

New Hampshire has stated that it is performing a study to determine

the effectiveness of remote sensing for NOx to determine whether or not

to add it as part of its vehicle testing program. That study was called

for as part of the State's enabling legislation for I/M. While the

State hopes to move forward with an on-road testing program in the

future, it does not have the authority to do so now.

T. Concluding Statement

A more detailed analysis of the State's submittal is contained in

the EPA's technical support document prepared for this action. The TSD

is available from the EPA New England Regional office listed above. The

criteria used to review the submitted SIP revision are based on the

requirements set forth in Section 182 of the CAA and in the federal I/M

regulations. The New Hampshire regulations and accompanying materials

contained in the SIP represent an acceptable I/M plan for the purpose

of strengthening the New Hampshire SIP.

IV. Proposed Action

EPA is proposing to approve the SIP revision submitted by New

Hampshire on September 4, 1998 and on November 20, 1998 as a revision

to the SIP. The SIP revision proposes approval of the State's I/M

program. While the I/M program does not meet all of the requirements of

the enhanced I/M rule, EPA has determined, based on the State's showing

that additional reductions from a fully enhanced I/M program will not

significantly contribute to attainment of the 1-hour ozone standard

anywhere in the OTR, that the requirements for an enhanced I/M program

are not required in New Hampshire. Therefore, EPA is approving the New

Hampshire I/M program as strengthening the SIP.

EPA is soliciting public comments on the issues discussed in this

proposal or on other relevant matters. These comments will be

considered before EPA takes final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the ADDRESSES section of

this action.

V. Administrative Requirements

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 that does not already exist as a matter of State law. EPA

is simply approving a state regulation under the Clean Air Act.

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'' as defined under E.O. 12866, and does not

involve an action that addresses environmental 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 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

[[Page 69594]]

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 proposed 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. Section 7410(a)(2).

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 the proposed approval 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 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.

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.

Robert Perciasepe,

Assistant Administrator, OAR.

[FR Doc. 98-33476 Filed 12-16-98; 8:45 am]

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