Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2001-9559/Airspace Docket No. 01-AWP-2.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov or the Superintendent of Document's web page at http://www.access.gpo.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should call the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

On June 20, 2001, Airspace Docket No. 01-AWP-02, FAA-2001-9559 (66 FR 30654), was published in the Federal Register. In that airspace docket the FAA proposed to realign V-105 and J-86 in the Phoenix, AZ, area. The June 20, 2001 NPRM contained an inadvertent error in the proposed description of V-105. Specifically, the description transposed the magnetic and true radials of V-105. This SNPRM corrects that error.

Currently the navigational signal in the vicinity of the Gulf of Mexico is not sufficient enough to support that segment of J-58 between the Harvey, LA, Very High Frequency Omnidirectional Radio Range and Tactical Air Navigation Aids (VORTAC), and the Sarasota VORTAC. The same dilemma affects that segment of J-86 between the Leeville VORTAC and the Sarasota, FL, VORTAC. Due to the weak navigational signal affecting these routes, they no longer pass flight inspection. The FAA is therefore proposing in this action to remove the route segments over the Gulf and terminate them at the Harvey VORTAC (for J-58) and the Leeville VORTAC (for J-86) respectively.

To replace the revoked segments, over water advanced navigation routes were established under a separate action. These over water navigation routes do not rely on ground based navigation facilities and are not subject to navigation signal coverage limitations. Additionally, in this action, the FAA is proposing to rename the route segments of J-58 and J-86 in the State of Florida to avoid confusion.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to revise V-105 and J-86 in the vicinity of Phoenix Arizona. Specifically, this notice corrects the proposed description of V-105 between the Drake and Phoenix, AZ, VORTAC. Additionally, in this action the FAA is proposing to revise J-86 between Winslow, AZ, and the Leeville, LA, VORTAC; removes the segment of J-86 between the Leeville VORTAC and the Sarasota, FL, VORTAC; renames the J-86 route segment from the Sarasota VORTAC to the Dolphin, FL, VORTAC, J-616; amend J-58 by terminating the route at the Harvey, LA, VORTAC; removing the segment of J-58 between the Harvey VORTAC and the Sarasota, FL, VORTAC; and renaming the route from the Sarasota VORTAC to the Dolphin, FL, VORTAC, J-614. These actions are necessary because J-58 and J-86 fail to pass flight inspection over the Gulf of Mexico due to gaps in navigation signal coverage. These changes are part of the National Airspace Redesign effort to improve system efficiency and safety.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Jet routes and Domestic VOR Federal airways are published in paragraphs 2004 and 6010(a), respectively, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The jet route and VOR Federal airway listed in this document would be published subsequently in the order.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-01-144), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The MDOT, highway bridge, at mile 4.6, across the Back River has a vertical clearance of 6 feet at mean high water and 15 feet at mean low water. The existing regulations are listed at 33 CFR 117.523.

The bridge owner, MDOT, asked the Coast Guard to temporarily change the drawbridge operation regulations to facilitate structural repairs at the bridge. This proposed temporary rule would allow the bridge owner to keep the bridge in the closed position from December 15, 2001 through April 15, 2002. The bridge operates on a twenty-four hours advance notice from November 1 through May 31, normally. The local fishermen haul out their equipment during the month of November, after which, the bridge historically receives few requests to open.

This proposed temporary change to the drawbridge operation regulations would allow the bridge owner to keep the bridge in the closed position from December 15, 2001 through April 15, 2002, while structural repairs are underway at the bridge.

The number of bridge openings from December through April in past years have been relatively low. The bridge opening log data for December through April for the past three years is as follows:

The Coast Guard believes this rulemaking is reasonable based upon the relatively low number of bridge opening requests during past years December through April and the fact that this work is necessary maintenance required to assure continued uninterrupted operation of the bridge.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, Feb. 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under paragraph 10e of the regulatory policies and procedures of DOT, is unnecessary. This conclusion is based on the fact that the there have been few requests to open the bridge historically, during the time period that the bridge would be closed.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under section 5 U.S.C. 605(b), that this proposed rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based upon the fact that there have been few requests historically, to open the bridge during the time period the bridge would be closed.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons set out in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-01-142), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) is being published with a shortened comment period of thirty days instead of the normal sixty day comment period because the bridge owner held a meeting with the members of the Dorchester Yacht Club, the sole marine facility upstream from the bridge, and the members of the yacht club agreed upon the time period that the bridge will be allowed to remain closed.

The Coast Guard anticipates that any temporary final rule enacted following public notice and comment may be effective in less than 30 days after publication.

Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest because the rehabilitation construction is necessary in order to assure continued reliable operation of the bridge.

The William T. Morrisey Boulevard Bridge, at mile 0.0, across Dorchester Bay has a vertical clearance of 12 feet at mean high water and 22 feet at mean low water. The existing regulations at 33 CFR 117.597 require the draw to open on signal from April 16 through October 14; except that, the draw need not open for vessel traffic from 7:30 a.m. to 9 a.m. and from 4:30 p.m. to 6 p.m. except on Saturdays, Sundays, or holidays observed in the locality. From October 15 through April 15, the draw shall open on signal if at least twenty-four hours notice is given.

The bridge owner, the Metropolitan District Commission (MDC), asked the Coast Guard to temporarily change the drawbridge operation regulations to allow the bridge to remain in the closed position from November 1, 2001 through May 10, 2002, to facilitate rehabilitation construction at the bridge. The bridge owner and the Coast Guard contacted all known waterway users to advise them of the proposed closure. No objections or negative comments were received in response to this proposal.

This proposed temporary change to the drawbridge operation regulations would allow the William T. Morrisey Boulevard Bridge to remain in the closed position from November 1, 2001 through May 10, 2002. The bridge normally operates on a twenty-four hour advance notice from October 15 through April 15, during the winter months.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, Feb. 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under paragraph 10e of the regulatory policies and procedures of DOT, is unnecessary. This conclusion is based on the fact that the only marine facility effected by this proposal has agreed to the closure dates for the bridge.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under section 5 U.S.C. 605(b), that this proposed rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based upon the fact that the only marine facility effected by this proposal has agreed to the closure date for the bridge.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons set out in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

NARA periodically reviews all of its regulations. This proposed rule was developed after such a review. The only substantive changes from the current regulation are the editions of industry micrographic standards that must be used.

The proposed rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it applies to Federal agencies. This regulation does not have any federalism or tribalism implications.

Please submit email comments within the body of your email message or attach comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: 3095-AB06” and your name and return address in your email message. If you do not receive a confirmation that we have received your email message, contact the Regulation Comment Desk at 301-713-7360, ext. 226.

For the reasons set forth in the preamble, NARA proposes to revise part 1230 of title 36, Code of Federal Regulations, to read as follows:

(3) Base plus fog density of films. The base plus fog density of unexposed, processed films must not exceed 0.10. When a tinted base film is used, the density will be increased. The difference must be added to the values given in the tables in paragraph (d)(2) of this section.

(4) Line or stroke width. Due to optical limitations in most photographic systems, film images of thin lines appearing in the original document will tend to fill in as a function of their width and density. Therefore, as the reduction ratio of a given system is increased, reduce the background density as needed to ensure that the copies will be legible.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this Federal Register.

The Clean Air Act Amendments of 1990 (the Clean Air Act) require certain states to implement an enhanced Inspection and Maintenance (I/M) program to detect gasoline-fueled motor vehicles which exhibit excessive emissions of certain air pollutants. The enhanced I/M program includes a tailpipe exhaust analyzer and a dynomometer test which simulates realistic driving conditions. The enhanced I/M program is intended to help states meet federal health-based national ambient air quality standards (NAAQS) for ozone and carbon monoxide by requiring vehicles with excess emissions to have their emissions control systems repaired. Specifically, the Clean Air Act requires enhanced I/M programs to be implemented by states for areas which meet one or more of the following criteria:

(1) Designated as a serious, severe or extreme ozone non-attainment area with urbanized populations of 200,000 or more;

(2) Designated as a carbon monoxide non-attainment area that exceeds a 12.7 part per million (ppm) design value with urbanized populations of 200,000 or more; or,

(3) Part of a Metropolitan Statistical Area with a population of 100,000 or more in the Northeast Ozone Transport Region.

New Jersey meets all three of these criteria, and consequently has adopted, and is implementing, an enhanced I/M program state-wide.

As required by the Clean Air Act, EPA promulgated regulations, including a performance standard and program administration features, for the implementation of enhanced I/M programs. EPA's final rule on Inspection/Maintenance Program Requirements was promulgated on November 5, 1992 at 40 CFR part 51. To comply with EPA's requirements for implementation, on June 29, 1995, New Jersey submitted to EPA a SIP revision for its adopted enhanced I/M program (N.J.A.C. 7:27-15.5). That SIP revision included provisions for an inspection program whereby all 1968 and newer gasoline fueled motor vehicles, unless specifically exempt through law or regulation, would be subject to a steady-state dynamometer-based exhaust emission test known as the ASM5015. The SIP revision provided that once the program was fully implemented, all subject motor vehicles would be inspected at least once every two years (i.e., biennially). New Jersey's enhanced I/M SIP revision also accounted for a hybrid inspection network, that is, it would utilize both centralized, test-only and decentralized, test-and-repair facilities.

Regarding the emission reduction effectiveness of decentralized enhanced I/M programs, the National Highway System Designation Act of 1995 (NHSDA) included a key change to EPA's previously developed enhanced I/M rule requirements. Under the NHSDA, EPA cannot disapprove a state I/M SIP revision, nor apply an automatic discount to a state I/M SIP revision under section 182, 184 or 187 of the Clean Air Act, because the I/M program in such plan revision is decentralized, or a test-and-repair program. Accordingly, an automatic 50 percent credit discount that was originally established for decentralized programs by EPA's I/M rule was replaced with a presumptive equivalency criterion where appropriate. That criterion places the emission reduction credits for decentralized networks on par with credit assumptions for centralized networks, based upon a state's good faith estimate of reductions as provided by the NHSDA. The NHSDA allowed states to claim any reasonable amount of credit for their decentralized programs that they deemed appropriate, so long as 18 months from the approval of their enhanced I/M SIP, the State could show full implementation enhanced I/M program data substantiating their credit claim.

On March 27, 1996, New Jersey submitted a revision to its June 29, 1995 enhanced I/M SIP, modifying its enhanced I/M program design to take advantage of the additional flexibility afforded states by Congress in the NHSDA. Consequently, as part of its March 27, 1996 enhanced I/M SIP revision, New Jersey claimed 80 percent credit for the decentralized portion of its enhanced I/M program.

On May 14, 1997, (62 FR 26401) EPA granted conditional interim approval to New Jersey's enhanced I/M program based on both the State's original June 29, 1995 enhanced I/M SIP submittal and its subsequent March 27, 1996 SIP revision. That action began the 18-month period by the end of which, as required by the NHSDA, New Jersey was to demonstrate that its decentralized program was as effective as claimed. This “NHSDA clock” thus began on the effective date of the interim approval, June 13, 1997. The conditions of the May 14, 1997 interim SIP approval included requirements that the State provide final and complete test equipment specifications, test procedures and emission standards; and that the State provide enhanced I/M performance standard modeling. New Jersey made revisions to its SIP which satisfied the conditions of this approval by rectifying the two major deficiencies in its enhanced I/M SIP by January 31, 1997 and January 30, 1998, respectively. In addition, on December 14, 1998, New Jersey cured eight de minimus deficiencies identified by EPA. Fulfillment of the conditions that New Jersey provide final and complete test equipment specifications, test procedures and emission standards and the rectification of the de minimus deficiencies is discussed further in section 7. of this proposal.

The performance standard modeling which was submitted on January 30, 1998, however, was completed prior to the implementation of New Jersey's enhanced I/M program on December 13, 1999. As such, in performing this modeling, the State had to make certain assumptions regarding the I/M program's parameters, some of which later proved to be inaccurate. Subsequently, on April 23, 2001, EPA informed New Jersey that an additional submittal which included performance standard modeling more reflective of the State's program's parameters as currently implemented would be required in order to grant final approval of the enhanced I/M program. That request and its subsequent fulfillment are discussed further below in this Background section and in section 6. of this proposal.

By letter dated December 12, 1997, EPA indicated that New Jersey's 15 percent Rate of Progress Plan was disapproved for failure to meet certain commitments and found that the State had failed to implement its enhanced I/M program. Notice of this letter was published in the Federal Register on August 26, 1998 at 63 FR 45399. As a result of EPA's finding that New Jersey failed to implement the program, the NHSDA clock was effectively stopped six months after the granting of conditional interim approval. EPA's finding of failure to implement the required enhanced I/M program also began 18 and 24 month time periods after which a two-to-one emissions offset sanction and a federal highway funding sanction would be imposed, respectively, absent implementation of the enhanced I/M program. These are referred to as “the sanctions clocks.”

On November 19, 1999, New Jersey notified EPA by letter that its enhanced I/M program would be implemented on December 13, 1999. EPA had been working closely with the State during the phase-in period of the enhanced I/M program and agreed that the State would have the program implemented on December 13, 1999. Therefore, on December 17, 1999 (64 FR 70659), EPA proposed to find that the State of New Jersey had implemented its enhanced I/M program by December 13, 1999. EPA also proposed to reinstate the interim approval under Section 348 of the NHSDA of the enhanced I/M program effective on December 13, 1999. The “NHSDA clock” thus re-started on December 13, 1999 when the enhanced I/M program began being implemented; however only the remaining 12 months could be used to evaluate the program for NHSDA. This meant that New Jersey's NHSDA submittal would be due by December 13, 2000.

Also in the December 17, 1999 Federal Register, EPA published an interim final rule (64 FR 70593), which, as of December 13, 1999, stayed the application of the offset sanction and deferred the highway sanction. Clocks for both sanctions were originally started based on EPA's finding that New Jersey failed to implement the enhanced I/M program. Although New Jersey had numerous start-up problems, the program was implemented and has since become fully operational. On June 12, 2001 (66 FR 31554), EPA took final action to find that New Jersey has implemented its enhanced I/M program. As a result of that finding, the sanctions clocks related to the implementation of New Jersey's enhanced I/M program were terminated on July 12, 2001, the effective date of that action. The June 12, 2001 action also had the effect of reinstating the interim approval of New Jersey's enhanced I/M program.

As stated above, New Jersey started its enhanced I/M program on December 13, 1999. One year later, on December 13, 2000, in order to fulfill the requirement of the NHSDA that the State substantiate its decentralized program credit claim before expiration of the NHSDA clock, New Jersey submitted to EPA an interim analysis. The analysis was based on four months of inspection data in an attempt to demonstrate the effectiveness of the decentralized portion of its enhanced I/M program relative to its centralized test-only network. However, due to start-up issues encountered by the State at the beginning of the program, the data collected was insufficient for a qualitative evaluation. Since New Jersey was not in a position to submit an adequately representative NHSDA evaluation before the termination of the 18 month period, the interim approval of the I/M program under the NHSDA terminated. However, since EPA had approved the I/M program under section 110 of the Clean Air Act as well, the I/M program remained a part of the federally enforceable SIP.

Also as stated above, New Jersey's January 30, 1998 I/M SIP submittal included performance standard modeling completed prior to the implementation of New Jersey's enhanced I/M program, and which was based upon assumptions regarding the I/M program's parameters, some of which later proved to be inaccurate. As mentioned earlier in this section, on April 23, 2001, EPA sent a letter from Acting Regional Administrator William J. Muszynski to New Jersey Department of Environmental Protection Commissioner Robert C. Shinn, Jr., which included remaining actions to be completed before EPA could grant final approval to the State's ozone attainment demonstration. Because all required elements of the State's SIP must be in place and fully approved before the attainment demonstration can be approved, including the enhanced I/M program, the letter identified the two outstanding items related to that program. Specifically, EPA informed New Jersey that its final NHSDA evaluation report and its revised performance standard modeling were needed before we could take those approval actions.

New Jersey's May 4, 2001 proposed SIP revision submittal (the May 4, 2001 submittal) addresses EPA's April 23, 2001 letter requesting the two remaining enhanced I/M program SIP elements which are needed in order for EPA to grant final approval to the program. The overarching purpose of the May 4, 2001 submittal is to fulfill the remaining requirements necessary before EPA can grant final approval to New Jersey's enhanced I/M program.

First, the May 4, 2001 submittal provides the final evaluation report for compliance with the NHSDA, which allowed states to claim additional credit for their decentralized program networks, provided they could validate that credit claim with actual program implementation data. The May 4, 2001 submittal proposes to conclude that, based on the qualitative evaluation report, New Jersey's decentralized enhanced I/M network is at least 80% as effective as its centralized enhanced I/M network. Primary conclusions drawn from the analysis are that emission reductions after vehicle repairs consistently show greater incremental reductions for re-inspections conducted at private inspection facilities (PIFs) as compared to those conducted at centralized inspection facilities (CIFs), and that there is a consistent level of performance between CIFs and PIFs. The evaluation validates the State's original claim allowed by the NHSDA regarding the decentralized network's effectiveness.

Second, the May 4, 2001 submittal includes the State's revised performance standard modeling, which was originally submitted on January 30, 1998 to satisfy one of the conditions of EPA's May 14, 1997 interim approval of New Jersey's enhanced I/M program. The revised performance standard modeling reflects New Jersey's enhanced I/M program as it is currently implemented, whereas the original performance standard modeling submitted in 1998 made certain assumptions prior to the start-up of the enhanced I/M program which later proved to be inaccurate. The revised performance standard modeling demonstrates that New Jersey's enhanced I/M program, as currently implemented, successfully meets and exceeds EPA's low enhanced I/M program performance standard developed for all three criteria pollutants (volatile organic compounds (VOC), oxides of nitrogen ( NOX) and carbon monoxide or CO) as modeled for the year 2002.

In New Jersey, motorists have the option of using either a CIF or a PIF for initial inspections and a CIF or PIF for re-inspections. For the time period New Jersey evaluated, approximately 80 percent of motorists who submitted their vehicles to enhanced emissions inspections in New Jersey chose to have their initial inspection performed at a CIF, whereas, only 20 percent chose to have that initial inspection performed at a PIF. New Jersey's final NHSDA evaluation report covers program data collected in both types of networks from July 1, 2000 to December 31, 2000. The final NHSDA evaluation report which was included in the May 4, 2001 submittal contains the results of the data analyses criteria described in this section for a full six months of enhanced I/M operational data. The following criteria were used to evaluate the program's effectiveness with respect to the 20% of vehicles which were tested at PIFs as compared with the remaining 80% tested at CIFs.

The database for I/M emissions test results analyzed under this criterion consisted of test data for enhanced emissions inspections (i.e., involving the ASM5015 exhaust emission test) that were collected and electronically stored on the State's Vehicle Information Database (VID). Average emission scores (in parts per million (ppm) for hydrocarbons (HC) and nitric oxide (NO, an indicator of overall NOX reductions) and percent of CO) were calculated from that test data. For each network type, the State conducted these calculations for initial ASM5015 exhaust emission tests performed between July 1 and December 31, 2000 for three conditions: when the initial test result was a failure for emissions, when the initial test result was a pass for emissions, and the overall emission result (i.e. all vehicles receiving an ASM5015 exhaust emission test, regardless of pass/fail status). The analysis was aggregated by station type (i.e., CIF and PIF).

Additional analyses were conducted to further investigate the trends found when analyzing initial emission test results for each pollutant. First, average emissions were calculated by model year and station type. Second, to further explore the initial test failure rate data, an analysis was conducted which included calculating the differences in emissions before and after repair for vehicles failing their initial test.

The second criterion used to evaluate the effectiveness of the decentralized network compared to the centralized network was an analysis of the repair success rate of vehicles that failed their initial tests during the time period examined. The repair success rates were determined by comparing all initial failing tests with the test results of the “first retest after repair.” This criterion is useful in identifying possible differences in repair success between the different after-repair facility types.

The last criterion used as part of the State's NHSDA evaluation was trigger data comparison. Typically, trigger analyses are conducted as part of a program's enforcement efforts. An analysis based on this criterion checks various results throughout the inspection process that might be symptomatic of program-compromising behavior. An example of a trigger checked as part of this criterion is an unusually low failure rate. For the purpose of ensuring that indicative criteria were included as part of the NHSDA evaluation, New Jersey selected trigger analyses used to allow the State to determine if the behavior in the PIFs and CIFs is comparable. Data used to satisfy this criterion was collected as part of initial vehicle inspections in New Jersey during the period July 1 through December 31, 2000 from both centralized and decentralized stations.

For each of the individual triggers analyzed, an index number on a scale of 0 to 100 was computed for each PIF and CIF emissions analyzer. For example, in general, a below-average failure rate would produce a lower index score than the mean value for the entire inspection network. Average trigger index numbers were then compared to provide an indication of relative performance of the decentralized network compared to the centralized network. EPA agrees that the criteria selected by the State to qualitatively evaluate the effectiveness of its decentralized enhanced I/M network relative to the centralized network are sufficient for the purposes of the NHSDA requirements.

During the period of July 1, 2000 to December 31, 2000, New Jersey collected operational data regarding its enhanced I/M program, summarized as follows:

A summary of the State's analysis of the data collected based on the criteria described above follows.

This analysis covered 914,842 vehicles receiving initial ASM5015 exhaust emission tests between July 1 and December 31, 2000. Overall, for both centralized and decentralized networks, the State found that vehicles failing the enhanced test are significantly more polluting than vehicles which pass the test. Furthermore, New Jersey found that there was a significant difference in overall average ASM5015 initial test failure rates (i.e., 7.6 percent for CIFs and 11.9 percent for PIFs). Another significant finding of the Emission Test Scores and Failure Rates analysis showed an average first repair success rate of approximately 83.9 percent in the PIFs for vehicles receiving their second test at a PIF, as compared to an average rate of approximately 56.9 percent in the CIFs for vehicles receiving their second test at a CIF.

The following conclusions can be drawn from the Emission Test Scores and Failure Rates analysis:

• Overall, the enhanced I/M program is achieving significant reductions in emissions through the effective repair of vehicles emitting unacceptable levels of air pollutants. The analyses show overall reductions of 55 percent for HC, 58 percent for NOX and 84 percent for carbon monoxide.

• The analysis of emission reductions after repairs consistently show greater incremental reductions for re-inspections conducted at PIFs as compared to those conducted at CIFs. New Jersey's evaluation concludes that repairs conducted by PIFs are more successful and effective on the first attempt as compared to any repairs conducted by either a vehicle owner or an untrained repair technician (e.g., subsequent to test failure at a CIF).

• The State concluded that test results for the two networks by model year track closely, indicating near equivalency between the network types when comparing similar model years.

New Jersey found that 91.6 percent of the vehicles tested using the ASM5015 exhaust emission test passed their initial inspection. Following the second evaluation criterion described above, New Jersey analyzed the repair success rate of the 77,120 vehicles that failed this initial test during the time period examined.

New Jersey found an average first repair success rate of approximately 83.9 percent in the PIFs for vehicles receiving their second test at a PIF, as compared to an average rate of approximately 56.9 percent in the CIFs for vehicles receiving their second test at a CIF.

The State drew the following conclusions from the Repair Success Rates analysis:

• Repairs performed on vehicles tested exclusively at CIFs appear to be less effective when compared to repairs administered when a vehicle had one or both tests performed at a PIF. This is most likely attributable to the higher skill level of the technicians in the test and repair community.

• The overall repair success rates of the enhanced I/M program, regardless of the test facility, demonstrate that the program is significantly reducing vehicle emissions.

Trigger data test results that were compared between the two networks included test data collected as part of initial vehicle inspections. As discussed in section 3.C. above, for each of the individual triggers analyzed, an index number was computed for each PIF and CIF emissions analyzer. In analyzing the trigger data, distribution of average index scores, on a scale of zero to 100, for PIFs verses CIFs was created for comparative purposes. New Jersey's analysis showed that the distributions for both the CIF and PIF analyzers are centered between index ratings of 70 and 85; however, the range of the distribution differs substantially between the facility types. While average CIF indexes are tightly grouped between 75 and 85, PIF indexes are more broadly grouped, most ranging from 55 to 85. As previously discussed, scores extending toward zero from the clustered majority of the scores indicate a higher probability of poor performance.

The State drew the following conclusions from the Trigger Data analysis:

i. The fraction of PIF analyzers with below-average scores account for a small fraction of the total volume of initial tests. The significance of this finding is that only a relatively small fraction of the initial test volume occurred at the facilities considered most likely to be engaging in questionable performance.

ii. Results show that there is little difference between the PIF and CIF networks on an average basis; i.e., all average trigger index values are similarly located in the upper 70s. It thus appears that, on average, CIFs and PIFs are achieving similar performance, based upon the selected trigger criteria.

Overall conclusions of NHSDA evaluation:

Although the NHSDA evaluation was qualitative in nature, it did allow the State to draw conclusions which substantiate the State's 80 percent PIF effectiveness credit claim. First, the State found that the analyses demonstrate that emission reductions after repairs consistently show greater incremental reductions for re-inspections conducted at PIFs as compared to those conducted at CIFs. Second, it found that these analysis all appear to demonstrate a consistent level of performance between CIFs and PIFs. Taking into consideration all the results from the various analyses, it is clear that the PIFs are meeting the State's 80 percent SIP credit claim estimation. In addition, these analyses seem to indicate that the State may have been conservative in that original estimation.

EPA agrees with New Jersey's conclusions regarding the analyses associated with each criterion chosen, as well as its overall conclusion regarding the results of the final NHSDA evaluation report. EPA proposes to approve this element of the May 4, 2001 SIP revision. EPA also proposes to find that New Jersey has fulfilled its requirements under the NHSDA regarding the substantiation of its decentralized enhanced I/M program credit claim.

EPA included provisions for a model program, known as the performance standard, in the requirements established for enhanced I/M programs. The features of the enhanced I/M performance standard model program are used to generate the minimum performance target that a state must meet. When programmed into EPA's mobile source emission factor model (the MOBILE model), these features produce target emission factors, in grams per mile of vehicle travel, which a state's enhanced I/M program must not exceed to be deemed minimally acceptable for purposes of SIP approval. The performance standard provides a gauge by which EPA can evaluate the adequacy and effectiveness of each state's enhanced I/M program. As such, states are required to demonstrate that their enhanced I/M programs achieve applicable area-wide emission levels for the pollutants of interest that are equal to, or lower than, those which would be realized by the implementation of the performance standard model program. However, the combination of program features which make up the performance standard does not necessarily constitute a recommended program design. The use of the performance standard approach allows EPA to meet Congress's dual statutory requirements that EPA develops a performance standard based on certain statutory features and that the standard provide states with maximum flexibility to design I/M programs to meet local needs.

On September 18, 1995 (60 FR 48029), EPA amended the enhanced I/M final rule to establish an alternate, “low enhanced” I/M performance standard for those areas that can meet the Clean Air Act's requirements for Reasonable Further Progress (RFP) and attainment of either the CO and/or ozone ambient air quality standards without the benefits of the high enhanced I/M performance standard. This low enhanced performance standard is designed for areas that are required to implement enhanced I/M but do not have a major mobile source component to the air quality problem or can obtain adequate emission reductions from other sources to meet the 15% VOC emission reduction requirement and demonstrate attainment.

The low enhanced performance standard meets the Clean Air Act's requirement that it be based on centralized, annual testing of light duty cars and trucks, and checks for tampering and exhaust emissions. Nevertheless, this standard can be met with a comprehensive decentralized, test-and-repair program or a hybrid program comprised of both centralized and decentralized networks such as the program in New Jersey.

In compliance with the Clean Air Act, on January 30, 1998, New Jersey submitted modeling to EPA which was intended to satisfy the requirement that the enhanced I/M program meet the performance standard targets. At the time of that submittal New Jersey was required to meet the original enhanced performance standard, subsequently termed the “high” enhanced performance standard. This was a consequence of New Jersey's 1996 15 percent Rate of Progress plan, which relied on credit from a program which was to meet that standard, and which is discussed in the Background section, section 1. of this proposal.

On February 5, 1999, New Jersey submitted a revised 1996 15 percent ROP Plan, which no longer relied on the emission reduction benefits from the enhanced I/M program. Subsequently, on April 23, 1999 (64 FR 19913), EPA approved this revised 15 percent ROP plan. As such, New Jersey is currently demonstrating compliance with the Clean Air Act requirements for RFP. On April 11, 2001, New Jersey submitted to EPA a ROP Plan which demonstrates that it will meet reasonable further progress requirements for the milestone year 2002. That demonstration is based on a mix of measures which includes the current enhanced I/M program which meets the “low” enhanced performance standard. Therefore, New Jersey is only required to meet the low enhanced performance standard, discussed above in Section 5. The May 4, 2001 submittal includes modeling which demonstrates that New Jersey's enhanced I/M program as currently implemented meets EPA's low enhanced performance standard.

As required in the enhanced I/M final rule, in its May 4, 2001 submittal New Jersey's intent was to show through modeling that its enhanced I/M program is being implemented such that it meets or exceeds the low enhanced performance standard, expressed as emission levels in program area-wide average grams per vehicle mile (gpm). New Jersey is required to meet the low enhanced performance standard for the ozone precursors hydrocarbons (HC), NOX and also for CO because of its non-attainment status for ozone and CO.

EPA's enhanced I/M final rule also requires that equivalency to the performance standard be demonstrated using the most current version of EPA's mobile source emission model. New Jersey has completed its performance standard modeling using the most current model applicable for its purposes, MOBILE5a-H. A subsequent version of the model, MOBILE5b, has also been released, however, EPA allows states to continue to use the MOBILE5a version for SIP submittals and transportation conformity determinations prior to, and for a limited period after, the release of EPA's next version of the model, MOBILE6.

Both the high and low enhanced performance standards and evaluations to determine a program's performance standard compliance is based on the following parameters: network type (centralized, decentralized or a hybrid network), decentralized effectiveness or credit (as a percentage of centralized network effectiveness), program start date, test frequency, emission standards (cutpoints), vehicle model year and type coverage, exhaust emission test, emission control device inspections (visual), evaporative system function checks, pre-1981 model year stringency (i.e., failure rate), waiver rate, compliance rate, evaluation date and on-road testing (as a percentage of all subject vehicles).

Although each state must model the performance standard using specific values specified by EPA (detailed in the Technical Support Document for this proposal and at 40 CFR 51.351), the performance standard emission factor results may vary from state to state. Variations will primarily result if states decide to use state-specific vehicle registration distribution and/or state-specific Vehicle Miles Traveled (VMT) mix. In the modeling included in its May 4, 2001 submittal, New Jersey used the most recently available state-specific vehicle registration data, which was from 1999. The state-specific registration data was also used to modify the VMT mix used in the modeling so that it more accurately represented the vehicle type distribution in New Jersey. Other local parameters, such as minimum, maximum and ambient temperatures were also used in determining the emission factors associated with the low enhanced performance standard. New Jersey's modeling with these state-specific and local parameters resulted in low enhanced performance standard emission factors of 1.29 gpm, 1.41 gpm and 18.33 gpm for VOC, NOX and CO, respectively.

A discussion of the various program parameters New Jersey used to determine compliance with the low enhanced performance standard follows.

Network Type: New Jersey's enhanced I/M program is comprised of a hybrid network of both centralized test-only facilities and decentralized test-and-repair facilities. For modeling purposes, the State assumed a 70/30 split for its enhanced I/M network (that is, of those vehicles which ultimately pass inspection, either on their first test or subsequent to initial failure and repair, 70 percent of the vehicle owners passing final inspection are expected to do so at a centralized inspection facility, and the remaining 30 percent are expected to pass final inspection at a decentralized private inspection facility). As discussed in section 2. of this notice, New Jersey claimed that the decentralized portion of its enhanced I/M program would be 80 percent as effective as the centralized portion of its program. Therefore, New Jersey has assumed 80 percent credit for the decentralized portion of its program in its performance standard modeling. As discussed in Section 4. of this notice, EPA is proposing to approve the State's demonstration that its decentralized inspection network is at least 80% as effective as its centralized network. For further discussion of the methodology employed by the State in modeling its hybrid network, the reader is referred to the Technical Support Document.

Start Date: The State began implementing its enhanced I/M program on December 13, 1999. For modeling purposes, the State assumed an enhanced I/M start date of January 1, 2000.

Test Frequency: The test frequency of New Jersey's enhanced I/M program is biennial (that is, vehicle inspections are required once every two years). However, there are several types of “off-cycle” inspections which, due to their nature, result in vehicles being inspected annually, rather than biennially. Off-cycle inspections include random roadside inspections, retail and casual change of ownership inspections and courtesy inspections. In New Jersey's previous performance standard modeling, the State estimated the expected volume of “off-cycle” inspections and claimed credit for those inspections as annual, rather then biennial, inspections. The State chose to be more conservative with its current performance standard modeling, and did not include any additional benefits achieved from “off-cycle” annual inspections in the evaluation which EPA is proposing to approve in this notice.

Model Year and Vehicle Type Coverage: All gasoline-fueled vehicles in New Jersey, regardless of model year, receive some type of emissions inspection as part of the enhanced I/M program, unless specific regulatory exemptions apply through New Jersey Division of Motor Vehicle (NJDMV) regulations at N.J.A.C. 13:20-43.1. (exemptions include collector motor vehicles, low mileage vehicles, and historic motor vehicles). However, only 1981 and newer model year vehicles which are: (1) classified as light-duty gasoline-fueled motor vehicles (LDGVs), or light-duty gasoline-fueled trucks 1 and 2 (LDGT1s and LDGT2s), (2) amenable to dynamometer-based testing, and (3) not “specifically exempted” from enhanced testing, are subjected to the enhanced inspection test procedures. A more detailed discussion of the applicable exhaust and evaporative emission test for each vehicle category can be found in the Technical Support Document.

Exhaust Emission Test Type: The majority of gasoline-fueled motor vehicles inspected as part of the State's enhanced I/M program receive either an ASM5015 test or an idle test as their exhaust emission test. Specifically, the ASM5015 exhaust emission test procedure (a single mode ASM test) is performed on all 1981 and newer LDGVs, LDGT1s and LDGT2s which are amenable to dynamometer-based testing and are not specifically exempted from enhanced testing. All pre-1981 LDGVs, LDGT1s and LDGT2s, and all HDGVs, receive an idle test. New Jersey accounted for tests applicable to those model year categories in its performance standard modeling. A more detailed discussion is found in the technical support document.

Certain 1981 and newer vehicles are exempt from the ASM5015 exhaust emission testing. Certain types of the vehicles in this exempt group are subjected to a less extensive 2500 RPM exhaust emissions test. In its previous performance standard modeling submittal, the State estimated the number of vehicles that would be exempt from the ASM5015 exhaust emission test because they were not amenable to dynamometer testing (these include vehicles which employ full-time, four-wheel drive or which are installed with non-switchable traction control). This estimation was then used to determine the loss in credit attributed to these vehicles receiving a 2500 RPM test in lieu of the ASM5015 exhaust emission test. At that time, the State estimated that fraction at one (1) percent of the total number of vehicles which otherwise meet the requirements to receive the ASM5015 test. Based on its data analysis from the enhanced I/M program as currently implemented, the State significantly underestimated this percentage of vehicles that would be exempt from the ASM5015 dynamometer test. New Jersey's current program data shows that while 1,062,311 initial ASM5015 exhaust emission tests were performed from August 2000 through March 2001, there were 96,761 2500 RPM exhaust emission tests performed during the same period. This translates to 8.4 percent of the vehicles which otherwise met the requirements to receive the ASM5015 test, instead received a 2500 RPM test. For current modeling purposes, the State assumed the percentage was 10 percent to be conservative in its estimates.

The NJDMV's regulations and State statute also specifically exempt several types of vehicles that would otherwise be subjected to enhanced I/M testing from either the enhanced tests (that is, subjecting these vehicles, instead, to a less effective exhaust emission test) or from emission testing as a whole. These vehicles include: (1) low mileage vehicles, and (2) collector motor vehicles. In addition, the NJDMV's regulations maintain a vehicle category that exempts applicable vehicles from basic I/M emission testing. These vehicles are classified by the NJDMV as historic motor vehicles.

In its original performance standard modeling submittal, the State estimated that the number of low mileage vehicles in the fleet eligible for exemption would be approximately one (1) percent. Also in that submittal, the State determined that although it was not possible to determine the number of applications the State would receive under the enhanced I/M program for designation as a collector motor vehicle, it was believed the number would be insignificant, well under 1 percent. Therefore, collector motor vehicles were not accounted for in the original performance standard modeling. New Jersey also did not account for historic motor vehicles in its original performance standard modeling, as the vehicles in this category, by definition, fall well outside the 25 model year analysis window examined by the MOBILE model.

Based on its data analysis from the enhanced I/M program as currently implemented, the State determined that the number of vehicles actually applying for a low mileage exemption was, approximately 0.3 percent, seventy percent lower than the rate that was estimated in the original performance standard modeling. Because the actual rate is so small, the State did not consider the impact of these vehicles as part of the revised performance standard modeling. In addition, actual I/M program operational data indicated that the State was correct in its original assessment that the collector vehicle category would be insignificant, and therefore New Jersey also did not account for these vehicles in the revised modeling. Historic motor vehicles are not accounted for since they fall well outside the 25 model year analysis window examined by the MOBILE5a-H model. Based on the State's determinations described above, the only vehicles receiving a 2500 RPM test that are considered in the May 4, 2001 performance standard modeling are those vehicles deemed not amenable to dynamometer-based testing. Thus, 10 percent of the 1981 and newer vehicles in the State were modeled by New Jersey as receiving a 2500 RPM test instead of the ASM5015 test. Further detail on how the State modeled the effect of that ASM5015 exemption/2500 RPM testing rate can be found in the technical support document for this proposal.

Emission Standards: New Jersey assumed implementation of initial cutpoints for the ASM5015 exhaust emission test. ASM5015 cutpoints are the numeric values of the emission levels used to determine the pass/fail status of a vehicle, as compared to the measured emission test results, under the ASM5015 test. Exceeding one or more cutpoints is considered as failing the emission test. Initial ASM5015 cutpoints are less stringent than final cutpoints would be under the program.

Emission Control Device Inspections: New Jersey performs a visual inspection to determine the presence of a catalytic converter on all 1975 and newer motor vehicles, and that inspection was modeled by the State in its performance standard modeling. In addition, the State's modeling assumes that all vehicles subject to a gas cap check also receive a visual gas cap check. New Jersey also included fuel inlet restrictor testing for all applicable model years in its revised performance standard modeling. The purpose of that test is to determine whether or not a leaded gasoline pump nozzle could fit into the vehicle's gasoline inlet, allowing for the possibility of misfueling with leaded gasoline. Use of leaded gasoline inhibits the effectiveness of vehicles' catalytic converters. Although fuel inlet restrictor testing was part of the State's annual inspections since June 1990, New Jersey stopped performing inlet restrictor tests in 1994 because it was no longer possible for New Jersey motorists to obtain leaded gasoline. However, based on EPA modeling guidance (EPA-AA-TEB-94-01, User's Guide to MOBILE5, May 1994), states that have previously performed fuel inlet tests for at least one full cycle (and have required catalyst replacement upon failure) may claim the SIP credit associated with this testing without future testing. Since New Jersey met these qualifications, the State is still permitted to take emission credit for the fuel inlet restrictor test.

Evaporative System Function Checks: New Jersey's evaporative emission testing is currently limited to a pressurized gas cap test. The gas cap check is designed to insure that the gas cap seals properly and has no leaks. All gasoline-fueled motor vehicles manufactured with a sealed gas cap are subject to this pressured gas cap inspection, which New Jersey determined comprises all 1971 and later model year vehicles. However, since the MOBILE model only looks at the last 25 model years from the evaluation date, for a 2002 evaluation year, New Jersey only evaluated emissions for model years 1977 to 2002. Further detail on which vehicle categories are subject to the State's pressurized gas cap inspection can be found in the Technical Support Document. MOBILE5 does not allow a state to estimate the benefit of a gas cap test separate from the full evaporative pressure test, which New Jersey has not yet implemented as part of its enhanced I/M program. EPA has determined that the pressurized gas cap inspection accounts for 40 percent of the full pressure test benefit. New Jersey accounted for only that fraction of emission reductions attributable to the gas cap test in its performance standard modeling. Further details on the State's methodology in determining that credit can be found in the Technical Support Document. In its performance standard modeling, New Jersey also projects future emission reductions associated with the evaporative purge test for all 1981 and newer vehicles subject to the ASM5015 exhaust emission test. The purge test was designed to inspect the ability of the vehicle's evaporative control system to properly purge stored VOC vapors from the evaporative canister. However, in-use evaluation of the purge test by EPA and several states revealed significant operational problems with the administration of the purge test. Currently, New Jersey does not implement the evaporative purge test. EPA acknowledged that problems exist with the purge test in a memorandum dated November 5, 1996 from Margo T. Oge, Director, Office of Mobile Sources, to its regional Air Division Directors. In that guidance and in an addendum memorandum issued on December 23, 1996, EPA determined that this type of testing in the interim would not be required, but that EPA is allowing states who committed to performing the purge test in the future, including New Jersey, to claim the applicable emission credit in its performance standard modeling for future years.

Stringency. For modeling purposes, New Jersey assumed a 30 percent emission test failure rate for pre-1981 vehicles. EPA agrees that this is a reasonable assumption.

Waiver Rate: In accordance with 40 CFR 51.360(d)(1), each state's enhanced I/M SIP must include “a maximum waiver rate expressed as a percentage of initially failed vehicles.” The purpose of this waiver rate is to estimate emission reduction benefits in a modeling analysis. EPA's enhanced I/M performance standard assumes a 3 percent waiver rate. New Jersey also assumed a 3 percent waiver rate for 1981 and newer vehicles in its original performance standard modeling. Under New Jersey's enhanced I/M program, any vehicle that applies for a waiver must show compliance with the idle test, in addition to meeting the minimum cost expenditure. Since all pre-1981 vehicles receive the idle test as their official inspection test under the State's enhanced I/M program, these vehicles are not eligible for a waiver. Thus, New Jersey's pre-1981 model year waiver rate is effectively zero. Data from the first year of the enhanced I/M program's implementation shows that the waiver rate in New Jersey is approximately 0.3 percent, well below the 3 percent waiver rate assumed in the State's original performance standard modeling. However, for the purposes of its performance standard modeling evaluation, the State continued to assume a conservative waiver rate of 3 percent for all model years.

Compliance Rate: The compliance rate for New Jersey's basic I/M program was 96 percent. In moving to the enhanced program, the State originally assumed that transitioning from a sticker-enforced inspection program to a registration denial-enforced program increases compliance with the program by a moderate amount of 2 percent. At the time of its May 4, 2001 submittal, New Jersey did not have any validated statistical evidence which contradicted that assumed compliance rate and continues to assume a 98 percent compliance rate in the current performance standard modeling exercise. EPA believes this is a reasonable assumption.

Evaluation Date: Both the high and low enhanced performance standard model programs include evaluation dates. These were the dates by which states had to demonstrate, through modeling, that their enhanced I/M programs could attain equivalent or lower emission levels than the performance standard program. Specifically, states had to demonstrate that the emission levels achieved by their enhanced I/M program were equivalent to, or lower than, those achieved by the performance standard program by 2000 for ozone (VOC and NOX) and 2001 for CO. At the time of the Agency's May 14, 1997, conditional interim approval of New Jersey's enhanced I/M program, EPA made the determination that based on the provisions of the NHSDA, the evaluation dates in the Federal I/M rule had been superseded. The provisions of the NHSDA allow for state development of an enhanced I/M program commencing later than those dates set forth in EPA's November 5, 1992 final rule on Inspection/Maintenance Program Requirements.

Therefore, to be consistent with the intent of the NHSDA, EPA determined that the initial program evaluation for all three criteria pollutants would be for calendar year 2002. Because of the seasonal nature of New Jersey's nonattainment for ozone and carbon monoxide, the State completed its performance standard modeling for the ozone precursors VOC and NOX with an evaluation date of July 1, 2002, and for CO with an evaluation date of January 1, 2002.

Other Modeling Parameters and Assumptions: In addition to the parameters and assumptions discussed above, New Jersey made certain other assumptions necessary to complete its performance standard modeling. These assumptions are consistent across modeling New Jersey did for its own program as well as for the EPA model I/M 240 program which is used to generate the minimum performance target that a state must meet. Further detail on these additional assumptions can be found in the Technical Support Document.

Performance Standard Modeling Results: The following table shows the emission factors obtained from both the EPA model performance standard program and New Jersey's enhanced I/M program for January 1, 2002 for CO and July 1, 2002 for VOC and NOX.

Overall conclusions of the performance standard modeling evaluation

Based on the State's modeling analysis, EPA agrees that New Jersey's enhanced I/M program, as currently implemented, exceeds the low enhanced I/M program performance standard for all three criteria pollutants. EPA is proposing to approve New Jersey's performance standard modeling.

EPA is proposing to approve certain revisions to New Jersey's enhanced I/M SIP which were made prior to the May 4, 2001 submittal. As discussed in section 1 of this notice, on May 14, 1997, EPA granted conditional interim approval to New Jersey's enhanced I/M program. In addition to the requirement that the State provide enhanced I/M performance standard modeling (which the State submitted on May 4, 2001 and which EPA is proposing to approve today), the conditions of the May 14, 1997 interim SIP approval also included additional requirements that the State provide final and complete test equipment specifications, test procedures and emission standards. On January 31, 1997, New Jersey submitted a SIP revision to satisfy those additional conditional requirements. New Jersey finalized those requirements through a succession of rule adoptions on February 3, 1997 and July 7, 1997 at New Jersey Administrative Code (N.J.A.C.) 7:27-15 (Subchapter 15, Control and Prohibition of Air Pollution from Gasoline-fueled Motor Vehicles) and N.J.A.C. 7:27B-4 (Subchapter 4, Air Test Method 4: Testing Procedures for Motor Vehicles). EPA is proposing to approve those additional requirements in today's action.

In addition to the conditional requirements discussed above, there also remained eight de minimus deficiencies related to the Clean Air Act requirements for enhanced I/M in the State's submittal. Those de minimus deficiencies did not affect the interim approval status of New Jersey's enhanced I/M program, however they did need to be rectified prior to EPA granting final approval of the program. In order to address these de minimus deficiencies, New Jersey needed to:

(1) Submit proof that adequate funding will be available throughout the life of the enhanced I/M program, as set forth in 40 CFR 51.354.

(2) Submit final requirements for inspection of fleet vehicles, as set forth in 40 CFR 51.356.

(3) Insure that quality control measures are in accordance with the requirements set forth in 40 CFR 51.359.

(4) Provide a detailed description of its motorist compliance enforcement program, as set forth in 40 CFR 51.361.

(5) Provide a description of the procedures that will ensure program quality (such as audits and training requirements), as set forth in 40 CFR 51.363.

(6) Provide final program requirements for data collection, as set forth in 40 CFR 51.365.

(7) Provide final procedures for analyzing and reporting program data, as set forth in 40 CFR 51.366.

(8) Complete the public information program, including the repair station report card, as set forth in 40 CFR 51.368.

New Jersey's December 14, 1998 enhanced I/M SIP revision was intended in part to cure these eight de minimis deficiencies identified by EPA. Two of the eight de minimus deficiencies were finalized by the State through rule adoptions on December 6, 1999 at N.J.A.C. Title 13, Chapter 20, Subchapter 43, Enhanced Motor Vehicle Inspection and Maintenance Program: de minimus deficiency #2 was cured at N.J.A.C.13:20-43.4, 43.5, and 43.6, and de minimus deficiency #4 was cured at N.J.A.C.13:20-43.16. Evidence of these corrections is contained in the docket for this rulemaking. As part of its proposal to approve New Jersey's enhanced I/M program today, EPA is now proposing to find that the State has cured the eight previously identified de minimus deficiencies.

Pertaining to de minimus deficiency #2, New Jersey has revised its regulations at N.J.A.C. 13:20-43.4 to require fleet and employee-owned motor vehicles operated on Federal facilities to comply with the I/M program requirements for the state. However, EPA is not requiring states to implement 40 CFR 51.356(a)(4), dealing with Federal installations within I/M areas, at this time. The Department of Justice has recommended to EPA that this Federal regulation be revised since it appears to grant states authority to regulate Federal installations in circumstances where the Federal government has not waived sovereign immunity. It would not be appropriate to require compliance with this regulation if it is not constitutionally authorized. EPA will be revising this provision in the future and will review state I/M SIPs with respect to this issue when this new rule is final. Therefore, for these reasons, EPA is neither proposing approval nor disapproval of the specific requirements which apply to Federal facilities at this time.

This revision is being proposed under a procedure called parallel processing, whereby EPA proposes rulemaking action concurrently with the state's procedures for amending its regulations. If the proposed revision is substantially changed in areas other than those identified in this document, EPA will evaluate those changes and may publish another notice of proposed rulemaking. If no substantial changes are made other than those areas cited in this document, EPA will publish a final rulemaking on the revisions. The final rulemaking action by EPA will occur only after the SIP revision has been adopted by New Jersey and submitted formally to EPA for incorporation into the SIP.

Based on the analyses included in New Jersey's May 4, 2001 submittal, EPA concludes the following. The State's NHSDA evaluation validates New Jersey's 80% decentralized test and repair effectiveness rate credit claim. New Jersey's evaluation uses actual program implementation data to show that the decentralized portion of the network is at least 80% as effective as its centralized program, as the State previously claimed. EPA also concludes, based on New Jersey's performance standard modeling which reflects the State's enhanced I/M program as it is currently implemented, that the State's program meets the low enhanced performance standard. Based on these conclusions, EPA is proposing to approve New Jersey's May 4, 2001 SIP revision.

EPA is also proposing to approve the final and complete test equipment specifications, test procedures and emission standards that New Jersey submitted to satisfy conditions of EPA's May 14, 1997 interim approval. New Jersey made a revision to its SIP on January 31, 1997 which contained those required elements.

EPA is proposing to find that New Jersey's December 14, 1998, SIP revision submittal adequately remedies the eight de minimus deficiencies previously identified.

Finally, as a consequence of EPA's conclusions regarding the approvability of the elements summarized above, EPA is proposing to change the conditional interim status of the approval of New Jersey's enhanced I/M program to final approval.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it merely proposes to approve 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. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Taking's” issued under the executive order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Section 172(c)(1) of the Clean Air Act (the Act) requires State Implementation Plans (SIP) to contain RACM as necessary to provide for attainment as expeditiously as practicable. EPA interprets the RACM requirements of section 172(c)(1) in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (General Preamble), see 57 FR 13498, 13560. In that preamble, EPA states the principle that potential measures that would not advance the attainment date for an area are not considered RACM. EPA encourages states to consider all potentially available measures to determine whether they were reasonably available for implementation in the area, and whether they would advance the attainment date. Further, the General Preamble provides that if the measures are reasonably available, states should adopt them as RACM. EPA also indicates that states could reject a potential RACM if it would cause substantial widespread and long-term adverse impacts. States are encouraged to consider local conditions, such as economics or implementation concerns, in evaluating potential RACM. On November 30, 1999, John S. Seitz, Director of EPA's Office of Air Quality Planning and Standards, issued a memorandum entitled, “Guidance on the Reasonably Available Control Measures Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas” which reiterated the Act's RACM requirements.

On June 15, 2001, the New York State Department of Environmental Conservation (NYSDEC) submitted to EPA its assessment of whether any RACM are available to advance the attainment date, from 2007 to 2006 or sooner, for the New York portion of the New York-Northern New Jersey-Long Island (New York Metro Area) severe ozone nonattainment area. New York requested that EPA process in parallel the State's adoption of its RACM analysis, which EPA is doing in today's notice. New York held public hearings on July 30 and July 31, 2001 and established a public comment period which closed on August 6, 2001. The State will provide a copy of the public comment record and responsiveness document for EPA to consider before taking final rulemaking action.

New York's analysis of potential RACM considered information from the following sources:

New York's analysis summed the volatile organic compound (VOC) and oxides of nitrogen ( NOX) potential emission reductions from the numerous possible measures, including all the reductions from all the measures identified in the NYSDOT study. New York's analysis of Transportation Control Measures (TCM's) examined the potential emissions reductions from measures included in the documents listed previously. As part of this evaluation, New York considered local circumstances, such as the fact that the New York Metro Area has a high population density and a well-established public transit system. Many RACM-type measures listed in these documents have already been implemented. Moreover, the New York Metro Area is not experiencing the same rate of growth as other metropolitan areas in the nation, so that RACM's which are appropriate in high growth areas may be less effective here. Of the measures examined by New York, only eight measures were identified as having any potential to provide significant emission reductions and these eight were determined to warrant further evaluation as potential RACM's.

Of the eight measures identified, the most significant portion of the potential emission reductions estimates in New York's analysis come from the night-time construction and alternative fuels programs. Despite their potential emission reductions, these measures are not RACM for the 1-hour ozone standard because they cannot be fully implemented prior to 2007, they need further analysis of air quality benefits/impacts to be considered and will not advance the attainment date.

The NYSDEC's RACM analysis addresses the reasonableness and effectiveness of both additional TCM's and additional stationary source control measures. New York concludes that there are no control measures, above and beyond what the State is already implementing, that would advance the 2007 attainment date specified in the Act for severe ozone nonattainment areas, because, the reductions from any potential RACM measures in the short-term are small compared to the reductions that will be achieved by 2007 through measures that are already in place or through measures which the State has previously committed to implement. In fact, the New York 1-hour Ozone Attainment SIP for the New York Metro Area, the 15 percent Rate of Progress (ROP) plan, the 9 percent post-1996 ROP plan and the continuing 3 percent per year Reasonable Further Progress emission reductions, already require emission controls on a wide variety of sources. Nevertheless, New York clearly states that there is nothing within its RACM assessment that precludes it from adopting the measures discussed in the assessment for the purpose of meeting the requirements for motor vehicle transportation conformity, attainment of the 8-hour ozone standard or any other air quality standard, and control of certain air toxins, or for any other reason to protect public health. In fact, over the period beyond the attainment date, some of these strategies may provide significant benefit. In some instances, there are efforts already underway to implement these.

The combination of measures examined by New York indicate potential reductions, but it is important to note that the estimate did not consider practical limitations in their implementation prior to 2007. Unfortunately, many of the actions needed to bring these measures to full fruition cannot be fully implemented in time to advance the attainment date from 2007 to 2006 or sooner. For the NYSDOT study in particular, the measures are currently under interagency review and represent values at the higher end of the potential emissions reduction range and not values that could potentially be achieved before 2007.

Of the possible emission reductions identified in the State's submittal, a significant portion of those reductions are estimated from construction/ozone action days, alternate fuels and clean fuel fleet programs.

The construction analysis assumes the cessation of construction operations on ozone action days or the shifting of emissions from day-time to night-time through day-time construction bans. The ozone action day reductions would be episodic, and not continuous emission reductions. While this measure may offer long term emission reductions to help achieve the 8-hour ozone standard, significant issues need to be addressed before it can be considered a RACM. These include analyses of: (1) Quantity of night-time construction which already takes place to ensure that emission reduction benefits are not “double counted;” (2) air quality impacts to ensure that the night-time emissions for New York are not contributing to ozone problems in downwind nonattainment areas; (3) air pollutant emissions from generators needed for lighting and supporting night-time activities; and (4) costs associated with implementing the construction/ozone action day program.

New York's analysis of the impact of alternate fuel-consuming vehicles examined the benefits associated with conversion of all government vehicles in the New York Metro Area, regardless of vehicle weight, age or function, to use fuels which exhibit fewer emissions than gasoline-consuming vehicles. The analysis concluded that while replacement of all government vehicles to alternate fuel-consuming vehicles has the potential for significant emission reductions and has received strong encouragement by the Federal, state and local governments, that magnitude of vehicle replacement is not practicably achievable by the 2007 attainment date. There is a lack of sufficient infrastructure currently in place for supply of alternate fuel for all government fleets. In addition, the analysis double counts reductions from vehicles that have already been converted. The New York City Department of Transportation currently only has two compressed natural gas (CNG) bus refueling stations capable of handling 200 buses apiece, with plans to convert five more stations by 2005. This would give a total capacity of seven stations for 1400 buses, out of a fleet of 3000 buses available for conversion. Moreover, the analysis does not recognize that existing non-CNG buses may have a useful life that extends beyond 2007 and that it may not be economically feasible to replace these buses before completion of their useful life. The promise of substantial emission reductions associated with this measure is contingent on a phase-in period for fleet vehicle turnover and further infrastructure development, which can be achievable, but not in time to advance attainment by 2006 or sooner. Therefore, this measure cannot be considered a RACM. Nevertheless, EPA believes alternate fuels for government vehicle fleets does offer potential emissions reductions to help achieve long-term environmental benefits.

In examining the potential emission reductions for the clean fuel fleet program, it should be noted that they were estimated using MOBILE5b modeling projected for the year 2010, not 2006, and were modeled before EPA's recent heavy-duty engine regulations were promulgated (40 CFR Parts 85 and 86). The national heavy-duty engine standards which are required beginning with model year 2002 for most manufacturers, are actually more stringent than the applicable heavy-duty clean fuel fleet emission standards. Consequently, actual emission reductions from a heavy-duty clean fuel fleet program would be significantly less than those projected, and to a large extent would be occurring anyway.

The potential emission reductions associated with the remaining five measures that NYSDOT examined (maintenance equipment, ozone action days, commuter choice, coatings and aircraft support programs) did not consider practical limitations in their implementation prior to 2007. Many of the actions needed to bring these five measures to full fruition cannot be fully implemented in time to advance the attainment date from 2007, and therefore, are not considered RACM. In addition, some of these measures are episodic and would not represent continuous emission reductions. Although these measures may offer long term emission reductions to help achieve the 8-hour ozone standard, a number of analyses must be conducted before any one of these measures can be considered a RACM. These include: (1) An analysis that the emission reduction benefits are not “double counted” because the program may already exist in some other form; (2) an analysis that deferred emissions contribute to a reduction in ozone (e.g., limiting use of lawn equipment on ozone alert days may actually be deferring use to subsequent days in the same ozone season); and (3) an economic analysis of the costs associated with implementing the programs.

EPA has reviewed New York's RACM analysis documentation, the process used by the New York State agencies to review and select TCM's and other possible reduction measures for point and area sources for the New York Metro Area and has determined that New York's RACM analysis meets the Act's RACM requirement. Although EPA encourages areas to implement available RACM measures as potentially cost effective methods to achieve emissions reductions in the short term, EPA does not believe that section 172(c)(1) requires implementation of potential RACM measures that either are not economically feasible or produce relatively small emissions reductions that will not be sufficient to allow the area to achieve attainment in advance of full implementation of all other required measures. The attainment demonstration for the New York Metro Area indicates that the ozone benefit expected from regional NOX reductions is substantial.

The term “reasonably available control measure” is not actually defined among the definitions in the Act. Therefore, the EPA interpretation that potential measures may not be RACM if they require an intensive and costly effort for numerous small area sources is based on the common sense meaning of the phrase, “reasonably available.” A measure that is reasonably available is one that is technologically and economically feasible and that can be readily implemented. New York's analysis of its ability to implement RACM includes consideration of whether potential small emissions reductions, from a multitude of sources, create an undue administrative burden to the states and regulated entities. As stated in the General Preamble, EPA believes that states can reject potential measures based on local conditions including cost, see 57 FR 13561.

EPA has evaluated New York's submittal for consistency with the Act, applicable EPA regulations, and EPA policy. EPA is proposing to approve New York's RACM analysis and to determine that there are no additional RACM's that, when implemented, would advance the attainment date in the New York Metro Area from 2007 to 2006 or sooner. However, EPA does believes that the control strategies considered in New York's RACM analysis may offer some benefits in providing for attainment of an 8-hour ozone standard, and we recommend that New York and other states in the OTR revisit these control strategies for an 8-hour standard.

What Additional Actions Is the State Taking to Provide for Attainment of the 1-hour Ozone Standard?

New York's 1994 attainment demonstration documented that the New York Metro Area could not attain the ozone standard without significant emission reductions from upwind sources. This documentation, along with documentation developed by EPA, led EPA to promulgate the NOX SIP Call (63 FR 57356) to reduce the transport of pollution into downwind nonattainment areas. In the NOX SIP Call, EPA concluded that reductions from various upwind states were necessary to provide for timely attainment in various downwind states. The NOX SIP Call therefore established requirements for control of sources of significant emissions in all upwind states. However, these reductions are not scheduled for full implementation until May 2003. Further, the United States Court of Appeals for the District of Columbia Circuit recently ordered that EPA could not require full implementation of the NOX SIP Call prior to May 2004. Michigan, et al., v. EPA, D. C. Cir. No. 98-1497, Order of Aug. 30, 2000. New York complied with the NOX SIP Call and established a NOX trading program as its control program. On May 22, 2001 (66 FR 28059), EPA approved New York's regulations to comply with the NOX SIP Call. New York requires full implementation by May 2003 for its NOX sources.

New York, in cooperation with the other OTR states, worked to consider regional control measures and strategies to bring the New York Metro Area into attainment of the ozone standard. New York has committed to adopt the measures to account for this shortfall noted previously by October 31, 2001. In fact, New York has taken a leadership role in the OTC process of identifying and developing regional control strategies that would achieve the necessary additional reductions to attain the 1-hour ozone standard. New York will be implementing regulations consistent with the OTC which include; revisions to the consumer products and architectural and industrial coatings rules, a mobile equipment refinishing rule, controls on portable fuel containers as well as the NOX model rule (NOX reductions from sources that are not included in the 1994 OTC NOX Memorandum of Understanding for regional NOX reductions or covered by EPA's NOX SIP Call). New York has begun its regulatory development process for these measures.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). 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 (64 FR 43255, August 10, 1999), 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 Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The following section provides the rationale for EPA's granting Alabama a preemption waiver, as provided in Section 211(c)(4)(C) of the Act, for the low-sulfur/low-RVP requirements for gasoline sold in the Birmingham nonattainment area during the regulatory control period (June 1 through September 15) each year through 2003. After that time, the State control of sulfur terminates, and Federal controls on sulfur in gasoline will then apply. There is no termination date for the low-RVP portion of Alabama's fuel regulation.

On November 1, 2000, the State of Alabama submitted an attainment demonstration for the 1-hour ozone NAAQS for the Birmingham nonattainment area for inclusion into the Alabama SIP. The rule for the fuel program (the subject of this proposed rulemaking) is included in this submittal in Appendix I; the request for a waiver from Federal preemption pursuant to 211(c)(4)(C) of the Act (also the subject of this proposed rulemaking) is included as Appendix II of this submittal. Specifically, Appendix II of the Alabama submittal contains data and analyses to support a finding under section 211(c)(4)(C) that the State's low-sulfur and low-RVP requirements are necessary for the Birmingham nonattainment area to achieve the ozone NAAQS.

This SIP submittal, including the fuel rule for Alabama's low-sulfur/low-RVP fuel control program, meets the requirements outlined in section 110. The fuel rule was formally adopted by the ADEM Board on October 24, 2000, and became effective December 1, 2000.

The attainment demonstration for the Birmingham nonattainment area, submitted November 1, 2000, relies upon the emission reductions from the low-sulfur/low-RVP fuel program. The SIP submittal includes a list of controls currently in place in both Jefferson and Shelby counties, and provides additional emission reductions control measures necessary to achieve the 1-hour ozone NAAQS. Specifically, the attainment demonstration includes a low-sulfur/low-RVP fuel program (the subject of this proposed rulemaking) and controls on Alabama Power Company's Gorgas and Miller Steam Plants. EPA action on the controls for the Gorgas and Miller Steam Plants are being taken in a separate rulemaking.

This action is pursuant to section 110 of the Clean Air Act as amended in 1990 (the Act). The approval of the State's fuel control measure must also meet the requirements of section 211(c)(4)(C). Under this section of the Act, EPA may approve a state fuel control into a SIP if it is found that the control is “necessary” to achieve a NAAQS.

The EPA's August 21, 1997, Guidance on Use of Opt-in to RFG and Low-RVP Requirements in Ozone SIPs gives further guidance on what EPA is likely to consider in making a finding of necessity. The guidance sets out four issues to be analyzed:

1. The quantity of emission reductions needed to achieve the NAAQS;

2. Other possible control measures and the reductions each would achieve;

3. The explanation for rejecting alternatives as unreasonable or impracticable; and

4. A demonstration that reductions are needed even after implementation of reasonable and practicable alternatives, and that the fuel control will provide some or all of the needed reductions.

In this notice of proposed rulemaking and accompanying Technical Support Document (TSD), EPA addresses these issues.

The State's low-sulfur/low-RVP regulation establishes a maximum sulfur content limit of 150 ppm, averaged on a volume-weighted basis, for all gasoline sold in Jefferson and Shelby counties during the regulatory period beginning June 1 and ending September 15. The sulfur limit will remain in effect through the 2003 control period. After that time, the State control of sulfur terminates, and Federal controls on sulfur in gasoline will then apply. As Alabama noted in its submittal, EPA promulgated its newest standards for vehicle tailpipe emissions as well as a national clean fuel (Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements) on February 10, 2000. EPA's rule sets an initial corporate pool average for sulfur of 120 parts per million (ppm) beginning in 2004, and will require a refinery average of 30 ppm sulfur for all gasoline sold nationwide beginning in 2006.

The State's low-sulfur/low-RVP regulation also establishes a maximum RVP limit of 7.0 pounds per square inch (psi) for all gasoline sold in Jefferson and Shelby counties during the aforementioned regulatory period of any calendar year beginning in 1999. For ethanol blends meeting specified conditions sold during the regulatory period in Jefferson and Shelby counties, Alabama's regulations limits RVP to a maximum of 8.0 psi. The RVP limit on gasoline and ethanol blends is a per gallon standard. There is no termination date for the low-RVP portion of Alabama's fuel regulation.

ADEM will enforce the low-sulfur/low-RVP rule. Producers, importers, terminals, pipelines, truckers, rail carriers, and retail dispensing outlets are subject to provisions of this rule. Registration, recordkeeping, reporting, and certification requirements are included. ADEM will conduct sampling for the fuel program in accordance with the “Methodology for Randomized Sampling to Estimate Mean Sulfur in Gasoline During a Specified Ozone Season” (see Appendix I of the attainment demonstration) or by some EPA-approved modification of this sampling plan. Samples, the number to be determined in coordination with ADEM and EPA, will be collected and analyzed for sulfur and RVP throughout the control period. Any sample that exceeds the limits specified in the fuel rule (i.e., 150 ppm sulfur and 7.0 psi—with the consideration of the allowable margin of error), will be considered a violation and may require an enforcement action. If an enforcement action is warranted, ADEM would use one of two approaches. ADEM would either issue an administrative order or consent order, or initiate a civil action. Another provision of the fuel rule provides that the seasonal sulfur average will not exceed 140 ppm. If the seasonal sulfur average exceeds 140 ppm, ADEM will require 100 percent terminal testing in lieu of testing at the retail level for future control periods.

EPA finds that this fuel rule is an acceptable approach for enforcing the State's fuel program.

Implementation of the low-sulfur/low-RVP fuel program will provide 3.3 (tons per day) TPD of NOX and 7.0 TPD of VOC emission reductions, which provides some or all of the emission reductions needed for the Birmingham nonattainment area to achieve the 1-hour ozone NAAQS. Reducing the sulfur and RVP of gasoline reduces NOX and VOC emissions, respectively.

On May 1, 1998, EPA released a staff paper presenting EPA's understanding of the impact of gasoline sulfur on emissions from motor vehicles and exploring what gasoline producers and automobile manufacturers could do to reduce sulfur's impact on emissions. The staff paper noted that gasoline sulfur degrades the effectiveness of catalytic converters and that high sulfur levels in commercial gasoline could affect the ability of future automobiles—especially those designed for very low emissions—to meet more stringent standards that are in use. The paper also pointed out that sulfur control will provide additional benefits by lowering emissions from the current fleet of vehicles.

Lowering the RVP in gasoline reduces VOC emissions, primarily through reducing evaporative losses from vehicle fuel tanks, lines, and carburetors as well as losses from gasoline storage and transfer facilities. To a lesser degree, a reduction in the VOCs in vehicle exhaust also results from low-RVP gasoline.

The State conducted thorough analyses of control measures available for the Birmingham nonattainment area. The attainment demonstration for the Birmingham nonattainment area contains a long list of stationary and point source controls that are required for Jefferson and Shelby counties. In brief, this attainment demonstration discusses Alabama's implementation of VOC reasonably achievable control technology (RACT), Stage I vapor recovery controls and open burning bans, among other controls for Jefferson and Shelby counties. Further, NOX controls for the Alabama Power Company's Gorgas and Miller plant are included in this attainment demonstration. This attainment SIP uses a weight-of-evidence analysis to show that implementation of these controls, including the low sulfur/low-RVP program, should bring the Birmingham nonattainment area into attainment of the 1-hour ozone NAAQS. The discussion below summarizes the controls that have been adopted and evaluates the reasonableness and practicability of the non-fuel alternatives that are still available.

In February 1997, ADEM formed an Advisory Committee to assist in determining the course(s) most appropriate to reduce ozone precursor emissions in the Birmingham nonattainment area. As a result of these meetings, many discussions centered on a fuel control strategy (in conjunction with other strategies). For the purpose of this fuel waiver request, ADEM referred to the results of the aforementioned meetings and reconsidered the potential implementation of an inspection and maintenance (I/M) program, and Stage II vapor recovery controls.

The conclusion drawn from ADEM's analysis of these controls was that implementing an I/M program is not practicable as a strategy to achieve attainment by the year 2003 because: (1) the implementation of an I/M program would require a modification to Alabama law; (2) full implementation of an I/M program could not be achieved by 2003 (the attainment year) and little or no emission reductions would be achieved by that year; and (3) the program would require significant funding (i.e., “start-up” costs) and human resources to implement.

ADEM did not consider implementation of the Stage II controls because, in 1994, EPA promulgated regulations for Onboard Refueling Vapor Recovery and because modeling revealed that even if the Stage II program were implemented, the fuel control program would still be necessary. Implementation of a Stage II program would only provide VOC emission reductions of 2.09 TPD and no NOX emission reductions.

In addition to evaluating the potential for NOX reductions from an I/M program, ADEM evaluated potential additional NOX emission reductions from various point source groups. Of the point source groups considered, only six of these point source groups have potentially significant NOX emissions that are reasonably evaluated for possible controls. These point source groups include the following: coke oven underfiring of coke by-product manufacturing; quenching process of coke by-product manufacturing; industrial internal combustion engines utilizing natural gas as a fuel; reheat furnaces at steel manufacturing sources; lime kilns at lime manufacturing sources; and cement kilns at cement manufacturing sources. After further analysis of each of the above sources, ADEM concluded that it was either not reasonable or practicable to further control these sources, or controls on available sources would not provide all the emission reductions needed. We concur with ADEM's assessment as described in the TSD.

Based on the State's analysis of the cost-effectiveness and the time required to implement these measures, we agree that, other than those proposed in the attainment demonstration and those described in the TSD, there are no reasonable or practicable non-fuel control measures available to the State to achieve the 1-hour ozone NAAQS in a timely manner. Compared to all of the potentially available measures outlined in the TSD, the low-sulfur/low-RVP fuel is the most reasonable and practicable measure available to reduce the emissions from ozone precursor emissions for the Birmingham nonattainment area. The low-sulfur/low-RVP fuel is readily available to the State because it is also being provided to the Atlanta nonattainment area. The benefits of this fuel program are already being felt in the Birmingham nonattainment area.

The TSD includes a detailed review of the controls that the State has already proposed or adopted and the reasonableness and practicability of the non-fuel alternatives that are still available.

Implementation of the low-sulfur/low-RVP fuel program will provide 3.3 TPD of NOX and 7.0 TPD of VOC emission reductions for the Birmingham nonattainment area. Without the proposed fuel controls, the Birmingham nonattainment area subject to these controls would receive gasoline with a sulfur level in excess of 300 ppm and a RVP of up to 7.8 psi during the summer months. The State, based on modeling results using EPA's Complex Model, estimates that the proposed low-sulfur/low-RVP program will reduce NOX emissions from automobiles by at least 6.2 percent and VOC emissions from automobiles by at least 3.6 percent. Thus, we concur with the State's conclusion that implementation of the low-sulfur/low-RVP fuel program will provide some or all of the emission reductions necessary for the Birmingham nonattainment area to achieve the ozone NAAQS in 2003.

EPA is proposing to approve Alabama's low-sulfur/low-RVP fuel program into the federally enforceable SIP. The State has demonstrated that the fuel program will provide some or all of the NOX and VOC emission reductions needed to reduce ozone levels for the Birmingham nonattainment area. Additionally, the State has demonstrated necessity for a preemption waiver as required by section 211(c)(4)(C) of the Act. Without the program, the design values for the nonattainment area will continue to exceed the 1-hour ozone NAAQS. In the Birmingham attainment demonstration, the State examined control measures, not previously implemented for this nonattainment area, and concluded that, even with adoption of all reasonable and practicable non-fuel control measures, additional VOC and NOX reductions in the area are necessary to achieve the 1-hour ozone NAAQS. The State further demonstrated that the fuel control satisfies the requirements of section 110 and will supply some or all of the reductions needed to achieve the ozone NAAQS.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. 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.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” (66 FR 28355, May 22, 2001.) This action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This 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 (64 FR 43255, August 10, 1999), 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 Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

This section provides background information on attainment demonstration SIPs for the 1-hour ozone national ambient air quality standard (NAAQS) and an analysis of the 1-hour ozone attainment demonstration SIP submittal for the Birmingham nonattainment area.

The CAA requires EPA to establish NAAQS for certain pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare (CAA sections 108 and 109). In 1979, EPA promulgated the 1-hour 0.12 parts per million (ppm) ground-level ozone NAAQS (44 FR 8202 (Feb. 8, 1979)). Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides ( NOX) and volatile organic compounds (VOC) react in the presence of sunlight to form ground-level ozone. NOX and VOC are referred to as precursors of ozone.

An area exceeds the 1-hour ozone NAAQS each time an ambient air quality monitor records a 1-hour average ozone concentration above 0.124 ppm. An area is violating the NAAQS when the average of expected exceedances during a consecutive three-year period is greater than 1 at any one monitor (40 CFR Part 50, Appendix H). The CAA required EPA to designate as nonattainment any area that was violating the 1-hour ozone NAAQS, generally based on air quality monitoring data from the three-year period from 1987-1989, or any area contributing to a violation (CAA section 107(d)(4); 56 FR 56694 (Nov. 6, 1991)). The CAA further classified these areas, based on the area's design value (i.e., the 4th highest ozone value during the relevant 3 year period at the violating monitor with the highest ozone levels), as marginal, moderate, serious, severe or extreme (CAA section 181(a)). Marginal areas were suffering the least significant air pollution problems.

The control requirements and dates by which attainment needs to be achieved vary with the area's classification. Marginal areas were subject to the fewest mandated control requirements and had the earliest attainment date. Marginal areas were required to attain the 1-hour NAAQS by November 15, 1993.

Table 1 presents a summary of the CAA requirements for a marginal ozone nonattainment area for the 1-hour ozone NAAQS. These requirements are specified in sections 182(b) and 182(f) of the CAA.

The Birmingham area was originally classified as a 1-hour ozone nonattainment area by EPA on March 3, 1978 (43 FR 8962). The Birmingham nonattainment area at that time, was geographically defined as Jefferson County, Alabama. On November 6, 1991, by operation of law under section 181(a) of the CAA, EPA classified the Birmingham nonattainment area as a marginal nonattainment area for ozone and added Shelby County to the nonattainment area (56 FR 56693). The nonattainment classification for the Birmingham marginal ozone area was based on ambient air sampling measurements for ozone made during 1987-1989. The area was required to attain the 1-hour ozone NAAQS by November 15, 1993, (i.e. three years from the enactment of the CAA) which is the date set forth in section 181(a)(1).

After the 1993 ozone season the area had three years of quality assured air monitoring data (1991, 1992 and 1993) which demonstrated that the 1-hour ozone NAAQS was attained, making the nonattainment area eligible for redesignation to attainment. The State submitted a final redesignation request on March 16, 1995, that was deemed administratively complete by EPA on April 11, 1995. A direct final rule proposing approval of the redesignation request was signed by the Regional Administrator and forwarded to the Office of the Federal Register on August 15, 1995, for publication. Prior to publication of the document, a violation of the 1-hour ozone NAAQS occurred on August 18, 1995. Because of the violations of the 1-hour ozone NAAQS, EPA directed the Office of the Federal Register to recall the proposed direct final rule from publication. EPA began the process to disapprove the redesignation request. The final action disapproving the redesignation request was published in the Federal Register on September 19, 1997, (62 FR 49154). Although exceedances of the 1-hour ozone NAAQS continued through 1998, the design values for the Birmingham nonattainment area for the three-year periods 1994-1996, 1995-1997, and 1996-1998 have remained within the range of marginal classification.

Because of these continuing violations, in a letter dated September 10, 1997, EPA requested that ADEM submit an enforceable commitment to develop an attainment demonstration SIP to attain the 1-hour ozone NAAQS. The enforceable commitment submitted by ADEM included a schedule that required them to submit a new attainment demonstration by July 1999. On August 10, 1998, the State submitted an enforceable commitment without Board adoption, preventing EPA from approving it into the federally enforceable SIP. Therefore, Region 4 informed the State that a SIP call would be initiated (to assure that the SIP provides for the attainment and maintenance of the 1-hour ozone NAAQS, pursuant to section 110(k)(5) of the CAA which authorizes EPA to find that a SIP is substantially inadequate to attain or maintain a NAAQS, and to require (“call for”) the State to submit, within a specified period, a SIP revision to correct the inadequacy). EPA published a proposal in the Federal Register on December 16, 1999 (64 FR 70205) to require the State to submit an attainment SIP for Birmingham within six months after final action is taken on the SIP call and to implement controls by May 1, 2003. The final rulemaking on the SIP call was published October 28, 2000, with an effective date of November 27, 2000, (65 FR 64352). ADEM submitted the 1-hour ozone attainment demonstration to EPA on November 1, 2000.

Alabama has met all the regulatory requirements for a marginal nonattainment area as specified in sections 182(b) and 182(f) of the CAA and has elected to develop a control strategy for the SIP revision based on photochemical grid modeling. Although, the model simulation for the proposed control strategy was performed for the year 2004, all control strategies proposed by the attainment demonstration will be in place by May 1, 2003, and attainment is projected in 2003 (ADEM responded to comments received during the comment period concerning the projection that Birmingham will achieve attainment in 2003).

The modeling of 2004 for the attainment year was completed prior to agreement with EPA on the appropriate attainment year. However, since the modeling was completed for 2004 and the time and resources to redo the modeling for 2003 were not available, EPA agreed that attainment for 2003 could be demonstrated with the submittal of a 2003 emissions inventory as a supplement to the 2004 demonstration provided that the 2003 emissions inventory emissions are less than or equal to the level of emissions used in the modeling. It could then be concluded that emissions concentration for 2003, if modeled, would be less than or equal to the 2004 1-hour ozone concentrations, which were modeled.

The year 2003 was determined to be the most “expeditious as practicable” based on the control strategies that are needed to bring Birmingham into attainment and can be implemented in a timely manner. Due to the large amount of NOX reductions required, a vehicle inspection and maintenance program would not provide the reductions required to attain the standard. Additionally there is no current authority for such a program. Even if such authority existed, development of a regulation, selection of a contractor and completion of the testing sites could not be achieved by 2003. The RACM analysis and fuel waiver request (which will be published in a separate Federal Register notice) show that other programs would not provide the reductions required to attain the standard by 2003. Implementing NOX controls on the Gorgas and Miller Power Plants in the area will achieve the needed reductions by 2003. Its not possible to have three years of clean air quality data prior to 2003, based on monitored violations that occurred in 2000.

EPA conducted a detailed examination of the feasibility of installing the NOX controls and based on these findings, the EPA believes that the compliance date of May 1, 2003, for installing NOX controls (Selective Catalytic Reduction (SCR)) on Gorgas and Miller is a feasible and reasonable deadline.

There are three basic considerations related to implementation of post-combustion controls SCR and Selective Non-Catalytic Reduction (SNCR) by the compliance date: (1) Availability of materials and labor, (2) the time needed to implement controls at plants with single or multiple retrofit requirements, and (3) the potential for interruptions in power supply resulting from outages needed to complete installations. The EPA examined each of these considerations. An adequate supply of off-the-shelf hardware (such as steel, piping, nozzles, pumps, soot blowers, fans, and related equipment), reagent (ammonia and urea), and labor would be available to complete implementation of post-combustion controls projected under the assumed control strategy. However, the catalyst used in the SCR process is not an off-the-shelf item and, therefore, requires additional consideration. EPA conservatively concludes that adequate catalyst supply should be available if SCR installations were to occur over a period of two years or more.

Implementation of a NOX control technology on a combustion unit involves conducting facility engineering review, developing control technology specifications, awarding a procurement contract, obtaining a construction permit, completing control technology design, installation, testing, and obtaining an operating permit. The EPA evaluated the amount of time potentially needed to complete these activities for a single unit retrofit and found that about 21 months would be needed to implement SCR while about 19 months would be needed to implement SNCR.

Based on the estimated timelines for implementing NOX controls at a plant and availability of materials and labor, the EPA estimates that the NOX controls in the assumed control strategy could be readily implemented by September 2002, without causing an adverse impact on the electricity supply or on the cost of compliance. Taking this into consideration NOX controls on Gorgas and Miller could be readily implemented by May 2003 but not in time to affect ozone level in 2002.

This proposal cites several policy and guidance memoranda. The EPA has also developed several technical documents related to the rulemaking action in this proposal. Some of the documents have been referenced. The documents and their location on EPA's web site are listed below.

1. “Guidance for Improving Weight of Evidence Through Identification of Additional Emission Reductions, Not Modeled.” U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Emissions, Monitoring, and Analysis Division, Air Quality Modeling Group, Research Triangle Park, NC 27711. November 1999. Web site: http://www.epa.gov/ttn/scram/ (file name: “ADDWOE1H”).

2. “Serious and Severe Ozone Nonattainment Areas: Information on Emissions, Control Measures Adopted or Planned and Other Available Control Measures.” Draft Report. November 3, 1999. Ozone Policy and Strategies Group. U.S. EPA, RTP, NC. Web site: www.epa.gov/ttn/oarpg/t1main.html.

3. Memorandum “Guidance on Motor Vehicle Emissions Budgets in One-Hour Attainment Demonstrations,” from Merrylin Zaw-Mon, Office of Mobile Sources, to Air Division Directors, Regions I-VI. November 3, 1999. Web site: http://www.epa.gov/oms/transp/traqconf.htm

1. U.S. EPA, (1991), Guideline for Regulatory Application of the Urban Airshed Model, EPA-450/4-91-013, (July 1991). Web site: http://www.epa.gov/ttn/scram/ (file name: “UAMREG”).

2. U.S. EPA, (1996), Guidance on Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, EPA-454/B-95-007, (June 1996). Web site: http://www.epa.gov/ttn/scram/ (file name: “O3TEST”)

3. Memorandum “Guidance on Use of Opt-in to RFG and Low-RVP Requirements,” from Gay McGregor, Office of Mobile Sources, to Air Division Directors, Regions I-X. August 21, 1997.

The November 1, 2000, submittal included two regulations that will reduce emissions of NOX and VOC in the Birmingham modeling domain. Rule 335-3-8-.03 requires utility NOX emission reduction controls on Alabama Power Company plants Gorgas and Miller for the period May 1 through September 30, beginning in 2003. This rule includes specific NOX emission reduction requirements as well as testing, recordkeeping and reporting requirements. Rule 335-3-20 regulates the sulfur level in gasoline sold in Jefferson and Shelby Counties (will be addressed in the fuel waiver request) which will reduce emissions of NOX and VOC.

In general, an attainment demonstration SIP includes a modeling analysis component showing how the area will achieve the NAAQS by its attainment date and the control measures necessary to achieve those reductions.

To receive final approval of the attainment demonstration SIP, the State must have adopted the emission control measures required under the CAA for the area's classification or must have established negative source declarations for the source categories for which the area has no sources that are subject to the CAA area's classification requirements for such sources.

The attainment demonstration must incorporate the emission impacts of, and the SIP submittal must address the rule development for, any additional emission control measures needed to achieve attainment. The rules for the emission controls relied upon in the attainment demonstration must also have been adopted by the State and approved by EPA at the time of or prior to final approval of the attainment demonstration SIP. The emission controls for these sources must be implemented as expeditiously as practicable but no later than the beginning of the ozone control season in the attainment year.

The demonstration shows that 71.5 tons per day (TPD) of NOX emission reductions and 7.0 TPD of VOC emission reductions are needed to achieve attainment of the 1-hour NAAQS for ozone in 2003. In order to achieve attainment in 2003, the following modeled controls are being implemented in addition to the controls mandated and already implemented for marginal nonattainment areas.

(1) During every ozone season (between June 1 and September 15), gasoline sold in Jefferson and Shelby Counties will be required to have a volume-weighted average sulfur content no greater than 150 ppm and a Reid Vapor Pressure (RVP) no greater than 7.0 pounds per square inch. This will provide 3.3 TPD reduction of NOX emissions and 7.0 TPD reduction of VOC emissions. A separate Federal Register notice will be published to approve the fuel rule and the waiver (CAA section 211(c)(4)(C)).

(2) Beginning in 2003, utility NOX controls on Alabama Power Company plants Gorgas and Miller will commence for the period May 1 to September 30 each year beginning in 2003. These controls will provide for 68.2 TPD reduction of NOX emissions. The corresponding NOX emission rates for each of the Gorgas and Miller units are provided in the following table.

These emission limitations will be enforced by establishing a 0.21 lb/mmBtu NOX emission limit for the two plants based on a rolling 30 day average from May 1 through September 30 of each year. The limit is based on a two plant average and the rolling 30 day averages are based on a heat input-weighted average of NOX emissions from all units at the two plants.

(3) National VOC and NOX control measures on-road mobile, off-road mobile, and area sources, including the national low emission vehicle (NLEV) program, locomotive engine standards, phase 2 requirements for VOC consumer and commercial products, marine engine standards, and phase 2 and 3 non-road diesel engine standards will be in place and were assumed in the model.

Another component of the attainment demonstration SIP is a motor vehicle emissions budget for transportation conformity purposes. Transportation conformity is identification of a process for ensuring that states consider the effects of emissions associated with the transportation plan for the nonattainment area on attainment of the NAAQS. As described in section 176(c)(2)(A), attainment demonstrations necessarily include the estimates of motor vehicle emissions that are consistent with attainment, which then act as a budget or ceiling for the purposes of determining whether transportation plans, programs, and projects conform to the attainment SIP.

States must include in their attainment demonstration SIP the level of the motor vehicle emissions that will be produced in the attainment year, and demonstrate that this emissions level, when considered with emissions from all other sources, is consistent with attainment. This level of motor vehicle emissions is used to determine the conformity of transportation plans and programs to the SIP, as described by CAA section 176(c)(2)(A). A state cannot effectively demonstrate attainment through its SIP unless they identify the level of motor vehicle emissions that can be produced while still achieving attainment. The motor vehicle emissions budgets must meet certain criteria which are listed in the Transportation Conformity Rule (40 CFR 93.118) before the budget can be determined adequate and approved as part of the attainment demonstration SIP. When a motor vehicle emissions budget is found to be adequate, it is used to determine the conformity of the transportation plans and programs to the SIP, as required by section 176(c) of the CAA. EPA's adequacy process as outlined in a May 14, 1999, guidance document, provides the public a 30 day comment period upon EPA's receipt of a SIP submittal containing a MVEB. Comments were provided by the Southern Environmental Law Center. EPA considered these comments in its determination of adequacy and provided responses. These responses are posted on the EPA MVEB web site: http://www.epa.gov/otaq/transp/conform/adequacy.htm.

On June 7, 2001, EPA published a finding of adequacy of the motor vehicle emissions budget for transportation conformity purposes (66 FR 30737). The budgets identified in the attainment demonstration are 52 TPD of VOC and 65 TPD of NOX emissions.

If the modeling analysis indicates that emission reductions are needed beyond those in the modeled control strategy, the SIP must include adopted rules to achieve that additional level of control. The analysis for Birmingham indicates no further emission reductions are needed (see section V.A. of this document for further discussion).

States may rely on a modeled attainment demonstration supplemented with additional evidence to demonstrate attainment.1 In order to have a complete modeling demonstration submission, states should submit the required modeling analysis and identify any additional evidence that EPA should consider in evaluating whether the area will attain the NAAQS.

The EPA guidance identifies the following six features of a modeling analysis that are essential to obtain credible results:

1. The state must develop and implement a modeling protocol. The modeling protocol describes the methods and procedures used in conducting the modeling analyses and provides for policy oversight and technical review by individuals responsible for developing or assessing the attainment demonstration (state and local agencies, EPA Regional offices, the regulated community, and public interest groups).

2. For purposes of developing the information to put into the model, the state must select air pollution days, i.e., days in the past with bad air quality, that are representative of the ozone pollution problem for the nonattainment area.

3. The state needs to identify the appropriate dimensions of the area to be modeled, i.e., the domain size. The domain should be larger than the designated nonattainment area to reduce uncertainty in the boundary conditions and should include large upwind sources just outside the nonattainment area. In general, the domain is considered the local area where control measures are most beneficial to bring the area into attainment.

4. The state needs to determine the horizontal and vertical grid cell resolution (i.e., size) of the receptor network. The grid cell size is the size of one edge of a grid cell in both the X and Y directions. The units for the cell size are the same as the coordinate units (e.g., kilometers). The horizontal and vertical resolutions in the model affect the dispersion and transport of emission plumes. Artificially large grid cells (too few vertical layers and horizontal grids) may dilute concentrations and may not properly consider impacts of complex terrain, complex meteorology, and land/water interfaces.

5. The state needs to generate meteorological data that describe atmospheric conditions and emissions inputs.

6. The state needs to perform a model performance evaluation to verify that the model is properly simulating the chemistry and atmospheric conditions through diagnostic analyses and model performance tests. Once these steps are satisfactorily completed, the model is ready to be used to generate air quality estimates to support an attainment demonstration.

The modeled attainment test compares model predicted 1-hour ozone daily maximum concentrations in all grid cells for the attainment year to the level of the NAAQS. A predicted concentration above 0.124 ppm ozone indicates that the area is expected to exceed the NAAQS in the attainment year and a prediction at or below 0.124 ppm indicates that the area is expected to attain the NAAQS. This type of test is often referred to as an exceedance test. The EPA's guidance recommends that states use either of two modeled attainment or exceedance tests for the 1-hour ozone NAAQS: A deterministic test or a statistical test.

The deterministic test requires the State to compare predicted 1-hour daily maximum ozone concentrations for each modeled day 2 to the attainment level of 0.124 ppm. If none of the predictions exceed 0.124 ppm, the test is passed. The statistical test takes into account the fact that the form of the 1-hour ozone NAAQS allows exceedances. If, over a three-year period, the area has an average of one or fewer exceedances per year, the area is not violating the NAAQS. Thus, if the state models a very extreme day, the statistical test provides that a prediction above 0.124 ppm up to a certain upper limit may be consistent with attainment of the NAAQS. (The form of the 1-hour NAAQS allows for up to three readings above the NAAQS over a three-year period before an area is considered to be in violation.) A complete discussion of how to determine the acceptable upper exceedance limit is included in the Technical Support Document (TSD).

When the modeling does not conclusively demonstrate attainment, additional analyses may be presented to help determine whether the area will attain the NAAQS. As with other predictive tools, there are inherent uncertainties associated with modeling and its results. For example, there are uncertainties in some of the modeling inputs, such as the meteorological and emissions data bases for individual days and in the methodology used to assess the severity of an exceedance at individual sites. The EPA's guidance recognizes these limitations, and provides a means for considering other evidence to help assess whether attainment of the NAAQS is likely. The process by which this is done is called a weight of evidence (WOE) determination (ADEM responded to several comments received during the comment period concerning the use of WOE, modeling technique and the models ability to provide a clear demonstration of attainment).

Under a WOE determination, the state can rely on and EPA will consider factors such as other modeled attainment tests (e.g., a rollback analysis), other modeled outputs (e.g., changes in the predicted frequency and pervasiveness of exceedances and predicted changes in the design value), actual observed air quality trends, estimated emissions trends, analyses of monitored air quality data, the responsiveness of the model predictions to further controls, and whether there are additional control measures that are or will be approved into the SIP but were not included in the modeling analysis. This list is not an exclusive list of factors that may be considered and these factors could vary for a particular area. The EPA's guidance contains no limit on how close a modeled attainment test must be to passing to conclude that other evidence besides an attainment test is sufficiently compelling to suggest attainment. However, the further a modeled attainment test is from being passed, the more compelling the WOE needs to be.

The Urban Airshed Model, Variable Grid Version (UAM-V) was approved for use in the attainment modeling demonstration by EPA. The UAM-V model is suitable for evaluating the air quality effects of emission control scenarios because it accounts for the spacial and temporal variations in emissions and emission reactivity. The UAM-V modeling domain consists of three nested grids with approximately 36-, 12- and 4-kilometer (km) grid cell resolution (i.e. grid cell size), respectively. The 4-km fine grid, in the Birmingham urban area, encompasses north central Alabama. A modeling protocol was not developed, but, a modeling scope of work was developed for obtaining contractor assistance. This scope of work described the major steps that were used in the modeling project and reviewed and approved by the Regional Office.

One multi-day ozone episode for the July 7-15, 1995, period was modeled for the attainment demonstration. The modeling simulation period included two start-up days (to limit the influence of the initial conditions on the simulation results). The primary episode days used to develop the control strategy include the July 9-15, 1995, period. The July 1995 episode can be generally characterized as an extended period during which high pressure was a dominant meteorological feature over the eastern United States. Local meteorological conditions (high pressure, light winds, high temperatures) are typical of those associated with high ozone concentrations in the Birmingham area. The period encompasses a range of summertime meteorological conditions. It includes days with a range of maximum ozone concentrations so that the response of the modeling system to emissions reductions can be examined for low, moderate and high ozone days. Exceedances of the 1-hour ozone NAAQS were observed on three days of the episode period.

Emission inventories were developed for the base case year (i.e., 1995 ) for the model performance evaluation and the future year control strategy assessment (i.e., 2004). The modeling emission inventories included five emission source classes: (1) Point, (2) area, (3) on-road mobile, (4) non-road mobile, and (5) biogenic. The1995 base case inventory used in the OTAG modeling was used to develop the various inventories used in the modeling. This inventory was supplemented with local point source inventories from ADEM, emissions used in the Atlanta 1-hour ozone SIP attainment modeling, and day-specific emissions from a local utility. Bureau of Economic Analysis growth factors were used to project the 1995 inventory to 2004 for the Birmingham 4-km domain. For the outer nested grids in the remainder of the modeling domain, the 2007 OTAG base1C point source inventory was used as the 2004. Biogenic emissions used in this modeling application were generated using the EPA's Biogenic Emissions Inventory System (BEIS2). BEIS2 provides county-level area coverage of different vegetation classes that include agricultural crop types as well as individual tree genus types, and uses it along with surface temperature and solar energy to calculate emissions from biogenic sources.

The model performance evaluation involves a statistical and graphical assessment. Acceptable model performance is achieved if spatial and temporal concentrations from the model match well with observed (i.e., ambient air quality) spatial and temporal patterns, and the model performance statistics are within EPA's established ranges. The spatial patterns of simulated ozone concentrations are generally well replicated in the Birmingham area. In general the model performance is within EPA's ranges on most days for the statistical analysis. EPA has determined that the model performance is acceptable and that the days modeled can be used to evaluate future control strategies and therefore, are suitable for use in the attainment demonstration. More information on the model performance evaluation is included in the TSD.

The 2004 modeling of the Birmingham control strategy contains regulations that will be implemented by 2003 within the nonattainment area. The UAM-V 2004 simulation of the control strategy predicts modeled ozone peaks of 135, 128, 141, 132, 115, 149, and 130 parts per billion (ppb) for the July 9-15, 1995, episode days, respectively. The deterministic modeled attainment test is not passed since all but one of the episode days have predicted 1-hour ozone daily maximum concentrations above 124 ppb. ADEM applied the statistical attainment test per the EPA guidance, “On Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS (EPA, 1996).” A full explanation of this test is found in the TSD. Of the three benchmarks comprising the statistical test, only benchmark one was passed, because less than three exceedances of 124 ppb occurred in any subregion of the modeling grid. Benchmark two failed because the predicted (modeled) daily maximum ozone concentration for one of the three severe episode days exceeded the maximum exceedance limit (i.e., 133 ppb) allowed by the statistical test. On July 11, 1995, the model predicted concentration is 141 ppb which is close to the allowed exceedances of 133 ppb (within 8 ppb of passing this attainment test). Benchmark three requires that the number of daytime grid cell hours exceeding 124 ppb for the days allowed an exceedance and on which the model under predicts by 5 percent or more reduced by at least 80 percent, as compared to the base-case simulation. This benchmark is not required for the Birmingham attainment demonstration because the peak ozone concentrations are not underestimated. Nevertheless, the simulation results show significant reductions; the number of exceedance grid cell hours is reduced by 67 percent. According to the EPA guidance, if one or more of the statistical test's benchmarks is failed, a WOE analysis may be performed using corroborative information to determine if the strategy will likely provide for attainment.

The 2004 control strategy simulations indicate that ozone levels in the Birmingham area will be reduced if the currently proposed controls are implemented. The demonstration shows that 71.5 TPD of NOX emission reductions and 7.0 TPD of VOC emission reductions are needed to achieve attainment of the 1-hour NAAQS for ozone in 2003. Even though both modeled attainment tests (the statistical test and the deterministic test) are not satisfied, there are several reasons to believe that Birmingham will attain the NAAQS. Additional analyses considered includes: (1) An estimate of additional reductions needed for attainment through application of EPA's, “Guidance for Improving Weight of Evidence Through Identification of Additional Emission Reductions, Not Modeled” which included an estimate of the future design value, (2) estimates of future design values at each monitor using the Relative Reduction Factor (RRF) analysis recommended in the DRAFT 8-hour modeling guidance, (3) estimates of additional emissions reductions to be implemented that were not modeled, (4) statistical test benchmark 3, and (5) normalized air quality and emissions trends data.

The first analysis involves the use of information from the photochemical grid modeling and ambient air quality monitoring to estimate additional levels of emission reductions needed for attainment of the 1-hour NAAQS for ozone. ADEM used EPA's guidance to identify the additional percentage reduction in NOX and VOC from the 1995 emissions, needed for attainment. This analysis strengthens the WOE and accounts for high modeled peaks by estimating the additional measures that at a minimum bring the model estimated future ozone design value to 124 ppb or below. The method is based on the assumption that the relationship between ozone and its precursors (VOC and NOX) can be calculated. A detailed discussion of the steps to calculate the additional emission reductions needed for attainment is provided in the TSD which can be obtained from the Regional Office staff contact. ADEM's application of this procedure estimates a future design value of 124 ppb which indicates additional reductions NOX and VOC are not needed, in accordance with EPA guidance.

The second analysis uses air quality modeling results to estimate a design value in 2003 at each ozone monitor and EPA's draft 8-hour ozone modeling guidance (“Use of Models and Other Analyses In Attainment Demonstrations for the 8-Hour Ozone NAAQS, EPA-454/R-99-004 (1999)”) to develop a local relative reduction factor (RRF). A 2004 ozone design value that is less than 124 ppb is estimated at almost all monitors in the Birmingham nonattainment area. The future design value at the McAdory monitoring site was 128 ppb and the design value resulting from using the domain wide max base case design value and average of domain wide model predicted peaks was 127 ppb. This indicates that substantial progress will be made towards attainment, because design values are expected to be reduced by as much as 5 ppb.

The third analysis involves consideration of the additional VOC and NOX reductions from three programs that were not modeled in the 2004 control strategy but are subject to an emission reduction regulation or a voluntary program (i.e., Stage 1 Vapor Recovery, Birmingham NOZONER program and open burning ban in Jefferson and Shelby counties). The Stage 1 Vapor Recovery regulations were initiated in the early nineties. Continued implementation of this program has resulted and will continue to result in reductions in VOC emission reductions from bulk gasoline plants and retail outlets. The NOZONER program focuses on collective and individual actions to reduce emissions from the mobile and area source categories. These actions include changes in vehicle volumes and traffic patterns by promoting alternative commuting options, and other actions that involve operational and maintenance activities. A ban on open burning during the ozone season has been instituted in Shelby County since 1998 and an open burning ban in Jefferson County has been in effect since 1998. These emission reductions are difficult to quantify; however it is believed that these programs will provide future emissions reductions for VOC and NOX.

The fourth analysis uses statistical test benchmark 3. Benchmark 3 assesses the improvement in ozone exposure (i.e., reduction in grid cell hours of 124 ppb or greater). Although, benchmark 3 was not applicable in the statistical test for the Birmingham area (see previous discussion), a 67 percent reduction in the number of ozone exceedance exposure occurrences is predicted by the model. This is a significant reduction in the extent of the predicted ozone exceedances over the domain.

The last analysis considers normalized trends data for air quality and NOX point source emissions. The changes in NOX point source emissions from 1995 until 1998 for Birmingham nonattainment area indicate a large increase from 1995 to 1996 and a slight increase from 1996 until 1998. The normalized air quality trends analysis for the period from 1988 to 1998 indicates a decrease in the design values from 1996 (i.e., 132 ppb) until 1998 (i.e., 128 ppb) and projects a continued decrease below the 124 ppb level in the future. Air quality monitoring data in the 1998 to 2000 period indicated a 137 ppb design value which appears to temporarily deflect the projected downward trend indicated in the SIP. However, it is expected that the point source controls in the attainment strategy will support the projected downward trend in the air quality analysis.

Although, the model simulation for the proposed control strategy that demonstrates attainment was performed for the year 2004, all control strategies proposed by the attainment demonstration will be in place by the year 2003 and attainment is projected in 2003. A 2003 emissions inventory, representative of emissions expected in the attainment year was developed. The 2003 inventory represents future levels of VOC and NOX that are less than that used in the modeling due to growth between 2003 and 2004 as well as control programs being implemented. The levels of anthropogenic NOX and VOC that are modeled in 2004 strategy in the Birmingham nonattainment area are 249.9 TPD and 157.3 TPD, respectively. The levels of anthropogenic NOX and VOC expected in 2003 in the Birmingham nonattainment area are 246.8 TPD and 155.6 TPD, respectively. The controls modeled in the 2004 strategy are included in the 2003 inventory. Since the VOC and NOX emissions projected for 2003 are less than the levels modeled for 2004, it is expected that if modeled, attainment would also be projected for 2003. The SIP included several modeled sensitivity simulations to support this statement (i.e., lower VOC and NOX emissions than that modeled in the 2004 attainment strategy can result in lower ozone concentrations). Therefore, EPA believes the area will attain the NAAQS in 2003.

Section 172(c)(1) of the CAA requires that SIPs provide for the implementation of all RACM as expeditiously as practicable. EPA has previously provided guidance interpreting the RACM requirements of 172(c)(1) (See 57 FR 13498, 13560). In that guidance, EPA indicated its interpretation that potentially available measures that would not advance the attainment date for an area would not be considered RACM. States must consider all potentially available measures to determine whether they were reasonably available for implementation in the area prior to the attainment date and whether they will advance attainment. If measures are deemed reasonably available and they will advance the attainment date, they must be adopted as control measures in the SIP.

Finally, states can reject potential RACM measures either because they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, or for various reasons related to local conditions, such as economics or implementation issues. EPA issued a recent memorandum on this topic confirming its earlier guidance, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas,” John S. Seitz, Director, Office of Air Quality Planning and Standards, November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

Pursuant to section 172(b) of the Clean Air Act as amended in 1977 (now section 172(c)(1)), Alabama conducted a RACM analysis for Jefferson County in 1985 that underwent public notice and comment. Since 1990, Birmingham's design value has not exceeded the marginal ozone concentrations, which may be attributed to improved vehicle emission technology and previously implemented control measures in the Birmingham nonattainment area to reduce NOX and VOC emissions. This continued marginal level has occurred despite dramatic increases in the level of construction and economic activity and substantial growth in the mobile fleet.

The 1985 RACM analysis evaluated the following 19 measures for the purpose of reducing vehicle emissions:

Some examples of control measures that were implemented include rideshare/carpool program, vanpool subsidy, park and ride lots, bicyle and pedestrian program, ClasTran public paratransit, incident/congestion response team, commute smart program, and ozone awareness program. Programs that are scheduled to be implemented include adding high occupancy vehicle lanes (September 2001), expanding downtown shuttle service (October 2001) and installing bicycle racks on all area buses.

As a part of this submittal ADEM evaluated the feasibility of implementing non-fuel control measures to show necessity for a fuel control measure as required by section 211(c)(4)(C) of the 1990 CAA. Under section 211(c)(4)(C), EPA may approve such a fuel control measure into a SIP if it is concluded that this fuel control is “necessary” to achieve a NAAQS. A fuel control is “necessary” if no other measures that would bring about timely attainment exist, or if other measures exist and are technically feasible, but are unreasonable or impracticable. The EPA guidance used to review a state's submittal for a fuel waiver is the August 21, 1997, Guidance on Use of Opt-in to RFG and Low-RVP Requirements. The guidance on SIP approvals of fuel controls sets out four issues to be analyzed:

1. The quantity of emissions reductions needed to achieve the NAAQS;

2. Other possible control measures and the reductions each would achieve;

3. The explanation for rejecting alternatives as unreasonable or impracticable; and

4. A demonstration that reductions are needed even after implementation of reasonable and practicable alternatives, and that the fuel control will provide some or all of the needed reductions. Although the information provided in Appendix II for the fuel waiver was not specifically identified by ADEM as a RACM analysis for this submittal, the information provided meets the intent of a RACM analysis. As part of this submittal, the fuel waiver request went through public review and comment. EPA will be proposing approval of the fuel control measure in a separate Federal Register action.

EPA acknowledges that the 1985 RACM analysis did not include Shelby County. However, given the large reductions (68.2 TPD reduction of NOX emissions) from the Gorgas and Miller power plants which will begin in 2003, and the small reductions from the potential RACM measures, EPA believes that even if ADEM had conducted a new RACM analysis for both counties, they still would not have identified sufficient additional measures that would achieve enough emission reductions to advance attainment prior to 2003.

Furthermore, the process of taking additional measures through a public hearing, board approval, funding, and time needed to implement would severely limit the feasibility of obtaining emission reductions that could accelerate the attainment date. Alabama plans to continue reviewing and implementing new technologies as appropriate for the Birmingham area. The area will also benefit from EPA's requirements for cleaner vehicles and fuels in the future.

The EPA believes that the Birmingham attainment demonstration SIP meets the requirements of the CAA. Therefore, EPA is proposing to grant an attainment date of 2003 and approve the State's demonstration that Birmingham will attain the 1-hour ozone NAAQS by November 15, 2003. The modeling and WOE analyses of ozone and ozone precursor emissions from sources in the Birmingham area, demonstrate that the modeled control strategy will provide for attainment of the 1-hour ozone NAAQS by November 2003.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order.

This proposed approval of the Birmingham attainment demonstration SIP does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this Federal Register.

Information concerning this deletion decision can be found in the Deletion Docket at the information repositories at the following locations: U.S. EPA, Region VII, Superfund Division Records Center, 901 North 5th Street, Kansas City, KS 66101 and at the Iowa Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, IA 50319.

The clause at DFARS 252.7023, Transportation of Supplies by Sea, contains requirements for use of U.S. -flag vessels when transporting supplies by sea under a DoD contract. The clause requires a contractor to (1) submit any request for use of other than U.S. -flag vessels in writing to the contracting officer; (2) provide a copy of the bill of lading to the contracting officer and the Maritime Administration after each shipment of supplies by sea; (3) provide with the final invoice a representation as to whether ocean transportation and U.S. -flag vessels were used in performance of the contract; and (4) include the clause in subcontracts for construction supplies, noncommercial items, and certain commercial items.

The DFARS presently exempts contracts and subcontracts at or below the simplified acquisition threshold from use of the clause at 252.247-7023. In accordance with 10 U.S.C. 2631, Supplies: Preference for United States Vessels, and regulations of the Maritime Administration at 46 CFR 381, the proposed rule would eliminate this exemption. Consistent with the provisions of 41 U.S.C. 427, Simplified Acquisition Procedures, the rule prescribes an alternate version of the clause for contracts and subcontracts at or below the simplified acquisition threshold. The alternate version excludes the requirement for a contractor or subcontractor to provide a representation regarding ocean transportation with its final invoice.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because most entities that provide ocean transportation of freight are not small businesses. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D014.

The Paperwork Reduction Act applies. The proposed rule increases the number of contractors subject to the information collection requirements in paragraphs (d) and (e) of the clause at DFARS 252.247-7023. DoD estimates that this change will increase paperwork burden by approximately 240 hours. The additional hours were included in the estimate published at 66 FR 9070 on February 6, 2001, under OMB Control Number 0704-0245.

Therefore, DoD proposes to amend 48 CFR parts 213, 247, and 252 as follows:

1. The authority citation for 48 CFR parts 213, 247, and 252 continues to read as follows:

The proposed rule published at 65 FR 54936 on September 11, 2000, requested comments on the removal of all FAR policy pertaining to the Balance of Payments Program. This program applies to contracts for supplies to be used, and construction to be performed, outside the United States. Although the DFARS already contains policy that implements the Balance of Payments Program for acquisition of supplies for use outside the United States, DoD presently uses the FAR policy for construction contracts performed outside the United States. This DFARs rule proposes to add policy for application of the Balance of Payments Program to construction contracts that would replace the existing FAR policy for DoD.

DoD is also considering discontinuation of application of the Balance of Payments Program to construction contracts. Therefore, in addition to the request for comments on this proposed rule, DoD invites comments on the advisability of discontinuing application of the Balance of Payments Program to DoD construction contracts.

This proposed rule would streamline application of the Balance of Payments Program to DoD construction contracts by—

(1) Exempting any particular construction material that is at or below the simplified acquisition threshold;

(2) Authorizing the contracting officer to make pre-solicitation determinations as to whether a requirement can best be filled by a foreign end product or construction material; and

(3) Specifically authorizing an assessment, prior to issuance of a solicitation, as to whether an exemption to the Balance of Payments Program applies on the basis of the entire project.

In addition, this proposed rule updates the clause at DFARS 252.225-7005, Identification of Expenditures in the United States, to implement the applicable requirements of the DoD Financial Management Regulations, Vol. 6A, Chapter 13, International Balance of Payments Reporting and Estimating.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the Balance of Payments Program requirements in this rule are transferred from existing FAR requirements, with streamlining changes that are not expected to have a significant effect outside the Government. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D020.

This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq. The information collection requirements associated with the clause at 252.225-7005, Identification of Expenditures in the United States, are already approved under OMB Clearance Number 0704-0229 for use through March 31, 2004.

Therefore, DoD proposes to amend 48 CFR Parts 225 and 252 as follows:

1. The authority citation for 48 CFR Parts 225 and 252 continues to read as follows:

This proposed rule amends DFARS 226.7103 to clarify policy pertaining to preferences for local businesses in acquisitions that support a base closure or realignment. The present policy permits award under the Section 8(a) Program if “the 8(a) contractor” is located in the vicinity of the base to be closed or realigned. This proposed rule amends the text to permit use of 8(a) procedures if “at least one eligible 8(a) contractor” is located in the vicinity. This change clarifies the intent of the policy, which is to permit both competitive and noncompetitive 8(a) acquisiitons in support of a base closure or realignment. A similar clarifying amendment is made to the text pertaining to set-asides for small business concerns.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely clarifies existing policy pertaining to acquisitions made in support of a base closure or realignment. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2001-D007.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD proposes to amend 48 CFR part 226 as follows:

1. The authority citation for 48 CFR part 226 continues to read as follows:

This rule proposes amendments to the DFARS to specify that—

(1) The contractor will determine whether a particular subcontract item meets the definition of “commercial item”; and

(2) When conducting a contractor purchasing system review, the administrative contracting officer will review the adequacy of rationale documenting commercial item determinations to ensure compliance with the definition of “commercial item” in FAR 2.101.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

The proposed rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely clarifies responsibilities regarding commercial item determinations for subcontracts. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2000-D028.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD proposes to amend 48 CFR part 244 as follows:

1. The authority citation for 48 CFR part 244 continues to read as follows: