Approval and Promulgation of Implementation Plans; New Jersey; Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ41-206, FRL-6509-5]

Approval and Promulgation of Implementation Plans; New Jersey;

Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to find that the State of New Jersey will

have implemented the enhanced inspection and maintenance (I/M) program

when mandatory testing begins on December 13, 1999 and to reinstate the

interim approval granted under section 348 of the National Highway

Systems Designation Act (NHSDA). Due to New Jersey's delays in starting

the enhanced I/M program, EPA notified New Jersey by a December 12,

1997 letter that the sanctions clock was started for failure to

implement the enhanced I/M program. The offset sanction began in New

Jersey on June 14, 1999. The highway sanction would begin six months

thereafter if New Jersey did not implement the program. This action is

proposing to reinstate the interim approval and to stop the sanctions

clock and lift any sanctions applied in New Jersey.

DATES: Comments must be received on or before January 18, 2000, and

will be considered before taking final action.

ADDRESSES: All comments should be addressed to Raymond Werner, Acting

Branch Chief, Air Programs Branch, Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New York 10007-1866.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the following

locations: Environmental Protection Agency, Region II Office, Air

Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-

1866 and New Jersey Department of Environmental Protection, Bureau of

Air Quality Planning, 401 East State Street, CN418, Trenton, New Jersey

08625.

FOR FURTHER INFORMATION CONTACT: Judy-Ann Mitchell, Air Programs

Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New

York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

New Jersey submitted changes to the existing I/M program on March

27, 1996 to satisfy the applicable requirements of both the Clean Air

Act (CAA) and the National Highway System Designation Act (NHSDA). On

October 31, 1996 (61 FR 56172), EPA published a notice of proposed

conditional interim approval of New Jersey's enhanced I/M program. On

May 14, 1997 (62 FR 26401), EPA published a final conditional interim

approval of New Jersey's enhanced I/M program which began the 18-month

interim period under section 348 of the NHSDA.

Due to New Jersey's delays in starting the enhanced I/M program,

EPA notified New Jersey by a December 12, 1997 letter that the

sanctions clock was started for failure to implement the enhanced I/M

program, in accordance with section 179(a)(4) of the Act. The offset

sanction began in New Jersey on June 14, 1999. The highway sanction

would begin six months thereafter.

Additionally, on November 4, 1998, EPA informed New Jersey that the

December 12, 1997 letter tolled the interim approval period for the

State. Since approximately six months of the interim period had passed,

the State will have the remaining 12 months of the interim approval

period to demonstrate their I/M program's effectiveness.

II. Proposed Action

EPA is proposing to find that the State of New Jersey implemented

the enhanced I/M program when mandatory testing begins on December 13,

1999 and to reinstate the interim approval granted under section 348 of

the NHSDA. Elsewhere in this Federal Register, EPA is announcing an

interim final determination that the sanctions have been stayed and

deferred because the State will have more likely than not started up

the approved I/M program. Implementing the program on a mandatory basis

cures the deficiency cited in the December 12, 1997 letter. EPA is now

proposing to find that the deficiency was corrected and proposing to

make a finding that the State is implementing the I/M SIP and EPA is

reinstating the interim approval granted under section 348 of the

NHSDA. This will result in stopping the sanctions that were announced

on December 12, 1997.

On November 19, 1999, New Jersey notified EPA by letter that the

mandatory enhanced I/M program will be implemented on December 13,

1999. EPA has been working closely with the State during the phase-in

period of the enhanced I/M program and agrees that the State will have

the program implemented on December 13, 1999. If comments are received

which cause EPA to conclude that the enhanced I/M program has not been

implemented, EPA will not proceed with the final rulemaking and will

withdraw the interim final rule finding that the state has more likely

than not implemented the program. In such event, the sanctions will be

immediately reinstated via a letter and a Federal Register notice.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 requires EPA to

develop an accountable process to ensure ``meaningful and timely input

by State and local officials in the development of regulatory policies

that have federalism implications.'' ``Policies that have federalism

implications'' is defined in the Executive Order to include regulations

that have ``substantial direct effects on the States, on the

relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of

government.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism

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implications and that preempts State law unless the Agency consults

with State and local officials early in the process of developing the

proposed regulation. This proposed rule will not have substantial

direct effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government, as specified

in Executive Order 13132, because it merely approves a state rule

implementing a federal standard, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

Thus, the requirements of section 6 of the Executive Order do not

apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

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

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments. If the mandate is

unfunded, EPA must 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 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. Accordingly, the requirements of section 3(b) of Executive

Order 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 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. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

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

G. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Ozone, Volatile organic

compounds.

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

Dated: December 7, 1999.

Jeanne M. Fox,

Regional Administrator, Region 2.

[FR Doc. 99-32516 Filed 12-16-99; 8:45 am]

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