Approval and Promulgation of Implementation Plans; Kentucky; Approval of Revisions to Basic Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY108-9904a; FRL-6307-8]

Approval and Promulgation of Implementation Plans; Kentucky;

Approval of Revisions to Basic Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a state implementation plan (SIP) revision

submitted on August 27, 1998, by the Commonwealth of Kentucky, through

the Kentucky Natural Resources and Environmental Protection Cabinet.

This revision modifies the implementation of a basic motor vehicle

inspection and maintenance (I/M) program in Jefferson County, Kentucky,

to require, beginning January 1, 2001, a check of the On Board

Diagnostic (OBD) system of 1996 and newer cars and light duty trucks

equipped with the system.

DATES: This final rule is effective May 14, 1999 without further

notice, unless EPA receives adverse or critical comments by April 14,

1999. If adverse comment is received EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments on this action should be addressed to Dale Aspy

at the Environmental Protection Agency, Region 4 Air Planning Branch,

61 Forsyth Street, SW, Atlanta, Georgia 30303. Copies of documents

relative to this action are available for public inspection during

normal business hours at the following locations. The interested

persons wanting to examine these documents should make an appointment

with the appropriate office at least 24 hours before the visiting day.

Reference file KY108-9904. The Region 4 office may have additional

background documents not available at the other locations.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4 Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303. Dale Aspy, (404) 562-9041.

Kentucky Natural Resources and Environmental Protection Cabinet,

Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-

1403. (505) 573-3382.

Jefferson County Air Pollution Control District, 850 Barret Avenue,

Louisville, Kentucky. (502) 574-6000.

FOR FURTHER INFORMATION CONTACT: Dale Aspy at 404/562-9041.

SUPPLEMENTARY INFORMATION:

I. Background

On August 6, 1996, the U.S. Environmental Protection Agency (EPA)

promulgated a final rule that established the minimum requirements for

inspecting vehicles equipped with OBD systems. Additionally, the OBD

test program component was to begin January 1, 1998. An approved OBD

program is required for state and local Inspection/Maintenance (I/M)

programs by section 203(m)(3) of the Clean Air Act (CAA). Section

182(a)(2)(B)(ii) of the CAA required a State Implementation Plan (SIP)

submission by August 6, 1998, for I/M programs to implement an OBD

system check. However, on May 4, 1998, EPA published a final rule that

delayed until January 1, 2001, the date by which the OBD test component

is required to begin. Although EPA delayed the OBD test component date

by three years, the CAA requirement for submitting a SIP two years

after promulgation of OBD requirements for vehicle manufacturers was

not changed. Therefore, in the May 4, 1998, Federal Register preamble

to the OBD regulation

[[Page 12750]]

revisions, EPA indicated it would accept a ``. . . brief SIP amendment

which commits to implementing EPA approved OBD checks, as outlined in

the I/M OBD rule, by January 1, 2001.'' The Kentucky submission meets

the EPA requirements.

II. EPA's Analysis of Changes to the Louisville, Kentucky, Basic I/

M Program

EPA's review of the submitted revisions indicates that the

Jefferson County I/M program is in accordance with the requirements of

the Act. Since Kentucky's OBD testing requirement meets the criteria of

the EPA OBD rule, EPA is approving the Kentucky SIP revision for OBD

testing in the Jefferson County, Kentucky, basic I/M program.

III. Final Action

EPA is approving this revision to the Kentucky SIP for a basic I/M

program in Jefferson County. EPA is publishing this action without

prior proposal because the Agency views this as a noncontroversial

amendment and anticipates no adverse public comments. However, in the

proposed rules section of this Federal Register publication, EPA is

publishing a separate document that will serve as the proposal to

approve the SIP revision should relevant adverse comments be filed.

This rule will be effective May 14, 1999 without further notice unless

the Agency receives relevant adverse comments by April 14, 1999.

If EPA receives such comments, then EPA will publish a timely

withdrawal of the final rule informing the public that the rule will

not take effect. All public comments received will be discussed in a

subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on this rule. Only parties interested

in commenting on this rule should do so at this time. If no such

comments are received, the public is advised that this rule will be

effective on May 14, 1999 and no further action will be taken on the

proposed rule.

IV. 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. If the mandate is unfunded, EPA must 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 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. 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. 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 final 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. Disclaimer Language Approving SIP Revisions in Audit Law States

Nothing in this action should be construed as making any

determination or expressing any position regarding Kentucky's audit

privilege and penalty immunity law, Kentucky KRS 224.01-040, or its

impact upon any approved provision in the SIP, including the revision

at issue here. The action taken

[[Page 12751]]

herein does not express or imply any viewpoint on the question of

whether there are legal deficiencies in this or any other Clean Air Act

program resulting from the effect of Kentucky's audit privilege and

immunity law. A state audit privilege and immunity law can affect only

state enforcement and cannot have any impact on federal enforcement

authorities. EPA may at any time invoke its authority under the Clean

Air Act, including, for example, sections 113, 167, 205, 211 or 213, to

enforce the requirements or prohibitions of the state plan,

independently of any state enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by a state audit privilege or immunity law.

G. 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 promulgated 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.

H. Submission to Congress and the Comptroller General

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 rule is not a

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

I. 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 May 14, 1999. 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,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: February 23, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, 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 et seq.

Subpart S--Kentucky

2. Section 52.920, is amended by adding paragraph (c)(93) to read

as follows:

Sec. 52.920 Identification of plan.

* * * * *

(c) * * *

(93) Modifications to the existing basic I/M program in Jefferson

County to implement a check of a vehicle's On-Board Diagnostic system,

for vehicles of model 1996 and newer that are so equipped, submitted by

the Commonwealth of Kentucky on August 27, 1998.

(i) Incorporation by reference. Regulation 8.02, adopted on July

15, 1998.

(ii) Other material. None.

* * * * *

[FR Doc. 99-6253 Filed 3-12-99; 8:45 am]

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