[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Rules and Regulations]
[Pages 12695-12700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5446]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IN39-3-6715; FRL-5158-1]


Approval and Incorporation of Employee Commute Option Program in 
the State Implementation Plan; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On August 18, 1994, the United States Environmental Protection 
Agency (USEPA) approved the Employee Commute Options (ECO) regulation 
for Lake and Porter Counties, Indiana. On the same day (August 18, 
1994), a proposed rule was also published which established a 30-day 
public comment period noting that, if adverse comments were received 
regarding the direct final rule, the USEPA would withdraw the direct 
final rule and publish an additional final rule to address the public 
comments. Adverse comments were received during the public comment 
period from the Indiana Chamber of Commerce, the Northwest Indiana 
Forum, three affected employers, three motorcycle associations, and 
three individuals. This final rule summarizes these comments and 
USEPA's responses and finalizes the approval of the ECO program for 
Lake and Porter Counties.

EFFECTIVE DATE: This action will be effective on April 7, 1995.

ADDRESSES: Copies of the SIP revision, public comments and USEPA's 
responses are available for inspection at the following address: (It is 
recommended that you telephone Jessica Radolf at (312) 886-3198 before 
visiting the Region 5 Office.) United States Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    A copy of this SIP revision is available for inspection at: Office 
of Air and Radiation (OAR), Docket and Information Center (Air Docket 
6102), room 1500, U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Jessica Radolf, Regulation Development 
Section (AR-18J), Regulation Development Branch, Air and Radiation 
Division, United States Environmental Protection Agency, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312) 
886-3198.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The ECO regulations (326 Indiana Administrative Code Article 19) 
discussed in this rule were submitted on February 25, 1994, by the 
Indiana Department of Environmental Management (IDEM) for the severe 
ozone nonattainment area that includes Lake and Porter Counties. These 
rules were submitted to satisfy section 182(d)(1)(b) of the Clean Air 
Act (Act) which requires that employers in severe ozone nonattainment 
areas with 100 or more employees at a worksite participate in a trip 
reduction program. On August 18, 1994 (59 FR 42506) the USEPA approved 
the ECO regulation as a revision to the Indiana ozone SIP. (For further 
information refer to the August 18, 1994, final rule.) Because adverse 
comments were received regarding the direct final rule, USEPA removed 
the direct final rule on November 7, 1994 (59 FR 55368). This final 
rule addresses the comments which were received during the public 
comment period and announces USEPA's final action on the 
[[Page 12696]] ECO regulation for Lake and Porter Counties.

II. Public Comments and USEPA Responses

Comment

    Several commenters believe that employees will be forced to change 
their commuting habits. Employees note that driving is a privilege and 
that the USEPA is trying to take it away with the ECO program. There is 
concern that employees will face substantial penalties if they do not 
meet the ECO regulations. Employers believe they will be required to 
force their employees to change their commuting habits. The employers 
note that ECO will create opportunities for legal challenges from angry 
employees against employers put in the position of infringing on 
employee's commuting choices and personal schedules.

USEPA Response

    There is nothing in the Act that would force an employee to change 
commuting habits. The Act requires employers to provide incentives to 
employees so that employees may choose alternatives to driving alone. 
The Act gives employers flexibility to use any incentives they choose 
to promote compressed work weeks, mass transit, vanpools, carpools, 
telecommuting, bicycling, and walking. An employee may accept or reject 
an employer's incentives to stop driving alone to work.
    Many employees will benefit from the ECO program. Coordinated 
ridesharing programs will facilitate carpooling and vanpooling that can 
reduce employee stress and save employees money. Efforts by employers 
to support coordinated transportation planning at the regional level 
may improve transportation services, such as added bus routes, so that 
employees will have more choices in how they get to work. Guaranteed 
ride home programs have been found to cost employers very little and 
provide assurance to employees who do not drive to work that their 
transportation needs can be met in case an emergency arises.
    Consequently, the privilege of driving is not being taken away with 
the ECO program and employees will not face penalties for not meeting 
the ECO requirements. Employees will voluntarily decide whether or not 
to change their commuting habits. Conversely, employers will not be 
required to force their employees to change their commuting habits. 
Employers will develop a program of incentives with the goal of 
influencing their employees to voluntarily decide to commute 
differently.

Comment

    One commenter objects to the need for an ECO program since new cars 
are built to be much cleaner. The commenter notes that if the ECO 
program goes into affect, money developing these cleaner cars will have 
been wasted since people can't drive the clean cars.

USEPA Response

    The Act requires implementation of an ECO program in those areas 
that have been classified as severe or extreme nonattainment for ozone 
or serious nonattainment for carbon monoxide. Fourteen areas in eleven 
States, including Lake and Porter Counties in Northwest Indiana, must 
implement an ECO program.
    These severe and extreme ozone nonattainment areas will have to 
reduce emissions by a very large amount to achieve the health-based 
ambient air quality standard for ozone. A study currently being 
conducted for the Chicago, Milwaukee, and Northwest Indiana areas by 
the Lake Michigan Air Directors Consortium and the States of Indiana, 
Illinois, Wisconsin, and Michigan indicates that current levels of 
emissions, considering growth, will need to be reduced by as much as 40 
to 60 percent, or more to achieve attainment of the ozone air quality 
standard by the year 2007. Implementation of numerous control measures 
for stationary, area, and mobile sources of emissions will have to 
occur to achieve this percentage reduction. Mobile sources, which 
include automobiles, account for almost 47 percent of the ozone 
pollution in Northwest Indiana.
    The growth in the use of automobiles is one of the primary reasons 
it has been difficult to achieve better ozone air quality. Vehicle 
miles traveled have experienced a growth rate over the past 25 years 
which is nearly three times the rate of the population growth. While 
hundreds of millions of dollars have been invested over the past 25 
years to reduce vehicle emissions by applying good technology to both 
the vehicles and the fuel, it is predicted that the growth in total 
emissions due to continued growth in vehicle miles traveled may 
eventually outweigh those gains.
    The ECO program is part of the Act's strategy to address the growth 
in vehicle miles traveled. The purpose of the ECO program is to reduce 
air pollution caused by vehicle traffic and congestion through 
reductions in the number of work-related drive-alone trips. Although 
work-related commute travel is only about a third of all travel, it is 
uniquely suited to promote alternatives to single occupant vehicle 
travel. There are concentrations of people going to the same place at 
the same time who can share rides. The ECO program was mandated by 
Congress because Congress believes there is a need to address how 
people travel as a part of the solution to cleaning the air and 
reducing travel congestion.
    Therefore, even though new cars are built to be much cleaner, there 
is a need for ECO and the money spent to develop cleaner cars will not 
have been wasted. The ECO is a means to reduce, not eliminate, 
automobile usage and, thus, maintain the emission reduction benefits 
derived from cleaner cars.

Comment

    One commenter opposes ECO as a ``band-aid'' solution to the ozone 
problem. The commenter notes that the appropriate approach is for the 
Federal Government to mandate that the automobile manufacturers produce 
more natural gas powered vehicles. The commenter points out that 
natural gas is plentiful in this country, inexpensive and clean 
burning, and that the technology exists. The commenter notes that all 
that is needed is to make natural gas available to the consumer. The 
commenter suggests that the phase-in of natural gas vehicles should 
begin now, so future generations naturally have that option.

USEPA Response

    A major goal of the Act is to promote vehicles that pollute less 
than conventional gasoline powered vehicles or not at all. Act 
initiatives include promotion of natural gas vehicles which are 
recognized as an available and clean technology.
    The Clean Fuel Fleet (CFF) (section 246) program explicitly 
addresses the phase-in of lower emitting vehicles and trucks beginning 
in model year (MY) 1998 for fleets of 10 or more vehicles, that are 
either centrally fueled or determined to be ``capable'' of being 
centrally fueled, and which are located or primarily operated in an 
affected nonattainment area. The CFF program will require that 
specified percentages of a covered fleet operator's new vehicle 
acquisitions in a given model year consist of low emitting vehicles. 
The light-duty clean fuel vehicle (up to 8,500 pounds GVWR) phase-in 
requirements are 30 percent in MY 1998, 50 percent in MY 1999, and 70 
percent thereafter. The heavy-duty clean fuel vehicle (8,500 to 26,000 
pounds [[Page 12697]] GVWR) phase-in requirement is 50 percent each 
year starting in MY 1998. Fleet owners will receive emission credits 
for purchasing ultra low emitting vehicles.
    USEPA ECO guidance issued on December 17, 1992, recognizes the 
importance of encouraging the use of vehicles operated by means other 
than a gasoline or diesel operated internal combustion engine. For the 
purpose of calculating the average passenger occupancy (APO), States 
may develop factors to be applied to the vehicle count which would 
reflect the lower emission levels from alternatively fueled vehicles 
that include natural gas vehicles.

Comment

    Several commenters believe the program will result in great costs 
to area ECO employers, but will not result in any environmental 
benefits. The commenters cite that the results of an ECO pilot project 
in Northwest Indiana show that despite great expense and sincere effort 
to make the program successful, employees simply were not responding.

USEPA Response

    As discussed above, the ECO program is part of the Act's strategy 
for addressing the growth in vehicle miles traveled. Congress mandated 
ECO as a starting point for changing travel behavior so air quality 
problems associated with single-occupancy automobiles usage can be 
solved. The program should not be thought of as a short-term effort. It 
is really the beginning of a ten- or twenty-year effort to expand 
employees' choices and opportunities for travel. The funding provisions 
of the Intermodal Surface Transportation and Efficiency Act make it 
possible for Federal dollars to be used for public transportation 
projects which can support ECO long-term goals. The USEPA believes that 
the ECO program will play a significant role in making people aware of 
how they travel and this awareness will eventually extend beyond work-
related trips to trips taken throughout the day. This awareness will 
have important implications related to traffic congestion, air quality, 
climate change and energy usage.
    The results of the ECO pilot project cannot be used to substantiate 
claims that ECO will not work in Indiana. Employer plans only began to 
be implemented in the late spring of 1994 and there has not been enough 
time to evaluate effectiveness or costs. In addition, participants in 
the ECO pilot project were not required to develop the full scale 
compliance plans that will be required when the program is fully 
implemented.

Comment

    Several commenters address the unlikely success of carpooling in 
Northwest Indiana. The commenters note that employees of any one 
company are spread out over a wide geographic area, and many worksites 
have multiple shifts beginning during the peak travel period of 6:00 
a.m. to 10:00 a.m. The commenters also discuss that the nature of their 
work requires that employees have use of their car at all times. The 
commenters note that they often do errands on the way to and from work, 
such as taking children to and from daycare, and are concerned about 
handling a family emergency that may occur in the middle of the day.

USEPA Response

    Carpooling and vanpooling will be important elements of many ECO 
programs. While there will always be employees that cannot carpool 
because of individual needs, there will be many employees that will be 
able to carpool. Moreover, the needs of commuters will change over 
time. For example, employees that must drop children off at daycare 
currently may be able to carpool in the future when their children are 
older. The ECO program provides an opportunity to establish commuting 
options, such as carpooling, public transit or other alternatives, to 
meet future commuting needs.
    Employers cannot determine that their employees are spread out over 
too wide a geographic area for carpooling to succeed until they have 
conducted their APO surveys that include employee locations and 
attitudes. Even if employees are spread out over a large area, there 
may be small pockets of employees willing to carpool. In addition, more 
employers in close proximity may operate cooperative carpooling 
programs in which their employees would be given the opportunity to 
carpool together.
    The potential success of carpooling in any area will largely be 
determined by the amount of effort by employers to provide educational 
programs and measures that support ridesharing. Guaranteed ride home 
programs provide assurance to employees who do not drive to work that 
their transportation needs can be met in case of a midday emergency. 
All of the participating employers in the Northwest Indiana ECO pilot 
project have included a guaranteed ride home program in their 
compliance plan. Employers may also establish on-site amenities that 
will make it less necessary for employees to have their own vehicle, 
including automatic teller machines, cafeterias, and daycare 
facilities.
    Other support measures for carpooling include: offering 
preferential or subsidized parking for carpools and vanpools; charging 
drive alones for parking; cashing out parking with cash equivalents to 
free parking; sponsoring or subsidizing carpools and vanpools; 
providing comprehensive rideshare matching services; subsidizing 
shuttles during midday to local shopping areas; and providing company-
owned vehicles for ridesharing.
    Several alternative measures would address the concern over 
multiple shifts during the peak travel period. The ECO can be looked at 
as an opportunity for employers to reevaluate how they do business. At 
some worksites, it may be possible to reschedule shifts by reducing the 
number of starting times to consolidate the number of employees 
arriving at worksites at the same times. Other alternatives include 
changing work schedules to accommodate compressed work weeks in which 
employees work longer shifts over fewer days. This gives employers the 
opportunity to offer their employees more favorable schedules such as 
four day work weeks and three-day weekends. Some employers may want to 
allow certain employees to telecommute, or work at home, one or two 
days a week.
    Employers can also adopt incentive programs to encourage employees 
to use public transit if it is available. Where public transit is not 
available, employers may want to turn to the private sector and sponsor 
subscription bus services. Employers can also improve facilities to 
promote bicycle use and walking options.

Comment

    Several commenters object that the ECO program is required all year 
long, although the ozone season is only April through October. The 
commenters note that high ozone levels typically are recorded only 
during exceptionally hot and dry periods in June, July or August.

USEPA Response

    The ozone season in Indiana is April through September, not 
October. However, excessive driving of single occupied vehicles during 
the 6 a.m. to 10 a.m. peak commuting period and the resulting traffic 
congestion occurs all year long. Indiana chose to implement its ECO 
program on an annual basis because the State believes it would be 
difficult to change commuting habits, such as reforming carpools, just 
in the spring and summer. The State believes [[Page 12698]] it makes 
financial sense, as well as practical sense, to implement several of 
the alternative commuting measures on a year-round basis, thereby 
avoiding continual start-up costs and the initial resistance of 
commuters to changing their commuting habits.

Comment

    Several commenters note that high ozone levels have been recorded 
only in one urbanized area of Lake County and no monitoring data exist 
to justify expansion of the ECO program to all of Lake County or any of 
Porter County.

USEPA Response

    Lake and Porter Counties, Indiana are part of the Chicago 
consolidated metropolitan statistical area (CMSA) as determined by the 
census bureau. Section 107(d)(4)(A)(iv)of the Act requires that the 
boundaries of any ozone nonattainment area classified as serious, 
severe, or extreme by operation of law include the entire CMSA. 
Congress thus ensured that the entire area contributing ozone forming 
pollutants would be included in the nonattainment area. The inherent 
nature of ozone formation is that volatile organic compounds and oxides 
of nitrogen are emitted in one area and carried downwind while reacting 
in the presence of sunlight to form ozone. Thus, the highest 
concentrations of ozone are not necessarily experienced in the area 
producing the greatest amount of pollutants but instead the highest 
ozone readings may be recorded many miles downwind.
    Section 181(a) of the Act also requires that the years to consider 
when determining the classification of an area were to be the years 
1987 to 1989. In the case of Lake and Porter Counties, the monitoring 
site at Ogden Dunes in Porter County recorded 4 days during 1987, 10 
days during 1988, and 0 days during 1989, with ozone exceeding the 
National Ambient Air Quality Standard (NAAQS). The highest 1-hour ozone 
level at the Ogden Dunes site was during 1988 and was 0.192 parts per 
million (ppm). The monitoring site in Lake County with the most ozone 
exceedances during this time period was in Hammond, Indiana which 
recorded 1 exceedance day during 1987, 5 days during 1988, and 0 days 
during 1989. The highest 1-hour ozone concentration was 0.186 ppm. 
However, the sites in Lake and Porter Counties were not the highest 
sites in the CMSA. The monitoring site with the highest recorded ozone 
levels in the CMSA is located in Kenosha County, Wisconsin. This site 
recorded 18 days during 1988 that exceeded the ozone NAAQS with the 
highest concentrations being 0.222, 0.193, 0.190 and 0.187 ppm. Thus, 
this site was used as the ``design value'' site and determined the 
classification of the entire CMSA, as required by the Act.
    Therefore, the entire Chicago CMSA is, by operation of law, 
classified as a severe ozone nonattainment area and the Act requires 
that all counties in the area must be included in the ECO program.

Comment

    Several commenters are concerned that employer monitoring of the 
success of ECO plans cannot be determined with any degree of accuracy. 
The commenters note that employer monitoring is unreasonable and 
requires resources unavailable to most employers.

USEPA Response

    Employers in Northwest Indiana will be required to evaluate the 
success of their ECO program 1 year after the initial plan submittal 
and annually thereafter. Employers will be required to resurvey their 
employees to calculate the APO attained. The survey and survey methods 
will be the same as the initial survey conducted, insuring consistency 
between surveys. Employers will receive computer software developed by 
Purdue University--Calumet to electronically calculate the APO and do 
cross-tabulations.
    During the year, employers can monitor participation in their 
programs to determine participation levels and whether there is a need 
to make program modifications. A variety of methods that are not beyond 
the means of Northwest Indiana employers can be used to monitor 
employee participation, including but not limited too: registering 
program participants; monitoring preferential parking; having 
supervisors complete weekly reporting forms; having employees complete 
weekly self-reporting forms; and conducting periodic surveys. The 
degree of accuracy in monitoring will be determined by the honesty of 
employees reporting how they are commuting. Since employees are not 
facing any penalties for not participating in an employer's program, 
there should be little incentive to be untruthful.

Comment

    Several commenters are concerned that Northwest Indiana does not 
have a regional public transportation system in place. As such, most 
area employers do not have the option of encouraging or providing 
financial incentives to their employees to use transit. In addition, 
commenters note their concern over potential safety problems from their 
employees using transit in high crime areas or walking several blocks 
along dark roads from bus stops.

USEPA Response

    ECO provides an opportunity for employers to get involved in 
regional transportation planning issues. The Northwest Indiana Regional 
Planning Commission has proposed extensive improvements in the 
transportation network in Lake and Porter Counties. The Indiana 
Transportation Association, the statewide organization of public and 
private transit providers, is working with local transit agencies and 
state representatives to develop a legislative initiative for funding 
transit improvements statewide, including Lake and Porter Counties.
    There are full-scale public transit systems in place in the cities 
of Hammond and Gary and a small transit system in the city of East 
Chicago that can provide alternatives for employees. Hammond Transit 
has recently extended its bus service on Calumet Avenue into the town 
of Munster. There are also a number of private transit companies 
willing to work with employers subject to ECO to provide subscription 
bus services.
    The Congestion Mitigation and Air Quality (CMAQ) provision of the 
Intermodal Surface Transportation and Efficiency Act (ISTEA) is 
providing money that is enabling the transit agencies in Northwest 
Indiana to provide expanded service. These funds have enabled the 
region to launch a tri-city link-up pilot project which involves the 
interconnection of bus services between the central business districts 
of Gary, East Chicago, and Hammond. This pilot project has proven 
extremely successful and will most likely be continued. The city of 
Gary has been doing a study of expanding transit service into the 
cities of Griffin, Highland, and Munster and linking up with the 
Hammond transit service in Munster. Gary Transit has recently submitted 
a proposal for CMAQ funds to run a pilot of the actual service. In 
addition, several new park-and-ride facilities, which will be staging 
areas for mass transit, vanpools, carpools, and subscription bus 
services, are being designed and will be paid for with CMAQ funds.
    Concern over the lack of safety due to poor walking or safety 
conditions can be addressed by working with the appropriate entities to 
have lighting and walking facilities improved; relocating transit stops 
so they are closer to the worksite; or providing shuttle service from 
transit stops to the worksite. [[Page 12699]] Where transit is not an 
option, there are several measures discussed above that can be used to 
encourage employees to drive to work in a means other than a single 
occupied vehicle.
    The funding available through ISTEA as well as the requirements of 
the ECO program should be seen as an opportunity to improve the 
provision of public transportation in Lake and Porter Counties and 
other similar areas.

Comment

    One commenter opposes the mandate that public schools participate 
in the ECO program. The commenter noted that several characteristics of 
public schools will make them unable to comply successfully with the 
ECO program and will divert needed resources from the primary goal of 
educating students. The commenter explained that public school work 
schedules are inflexible prohibiting adjustment of work hours to 
accommodate flexible hours or compressed work weeks; and providing 
monetary incentives to staff is prohibited since funds can only be 
dispersed for educational expenses. The commenter noted the ECO program 
discriminates against employees of larger schools and favors employees 
of smaller schools; students account for the majority of drivers and 
are not included in the program; and the school district does not get 
credit in the average passenger occupancy calculation for the 6000 
students that are transported by school bus.

USEPA Response

    The USEPA is committed to finding ways for States to implement the 
ECO program so that the burden on affected employers is minimized. 
However, USEPA cannot categorically exempt any employers from any of 
the requirements of the ECO program. It is clear that public schools 
must be subject to the program and so long as they demonstrate a good 
faith effort to meet the target average passenger occupancy, they will 
not be penalized.
    There are ways for public schools to encourage employees to commute 
differently that do not involve large expenditures or manipulation of 
work schedules. Because the school work schedule is fixed, there are a 
large number of employees arriving at the worksite at the same time 
making it possible to encourage ridesharing. Several of the measures 
listed above which would support ridesharing are inexpensive such as 
preferential parking for vehicles with more than one passenger; 
guaranteed ride home programs; comprehensive rideshare matching 
services; and educational programs that promote ridesharing.
    The ECO program does not discriminate against employees of larger 
schools in favor of employees of smaller schools. Congress selected a 
threshold of 100 employees because it is Congress' intent to target 
employers who have enough employees arriving in the peak period to 
establish a viable ECO program. The USEPA recognizes there are 
situations in which the majority of an employer's workforce follows a 
non-standard schedule, and the number of employees arriving in the peak 
period is small enough to make ridesharing and special employer-
provided services difficult. Therefore, under the December 17, 1994, 
USEPA ECO Guidance, a de minimis exemption may be made at the State's 
option whereby employers with worksites at which fewer than 33 
employees report to work during the peak travel period are not subject 
to the requirements. The Indiana ECO rule has adopted this de minimis 
exemption. While the Indiana ECO rule applies to those employers which 
employ 100 or more employees at a single worksite, the worksite must 
have 33 or more employees reporting between 6 a. m. and 10 a.m. on any 
single day, Monday through Friday.
    The Act does not require the inclusion of students in the State ECO 
program even though students may account for the majority of drivers in 
some schools. However, the Act does not preclude the State from 
developing a separate trip reduction regulation that would specifically 
address the commuting habits of students. In addition, students riding 
school buses are not included in the APO calculations because they are 
not employees commuting to the worksite. Other types of businesses and 
worksites, such as hospitals and shopping centers for example, have 
large numbers of nonemployees coming to the worksite as well.

Comment

    Several commenters claim that ECO precludes the use of motorcycles 
as a commuting option without consideration of convenience, 
contributions to reduced congestion, economic hardship imposed by such 
prohibitions, or environmental benefits such as fuel efficiency and 
less manufacturing pollution. Commenters believe the Indiana ECO rule 
does not address the rights of those Indiana citizens who choose to 
commute to work using a motorcycle and recommend that motorcycles be 
exempted from the program. The commenters fear that ECO could lead to a 
ban of motorcycle operation between the hours of 6 a.m. and 10 a.m. 
Commenters believe that the methodologies used to calculate the average 
vehicle occupancy (AVO) and APO diminish the value of motorcycles.

USEPA Response

    The ECO program requires employers with 100 or more employees to 
implement programs that will encourage their employees that arrive at 
their worksite between 6 a.m. and 10 a.m. to commute to work by a means 
other than a single occupied vehicle. Affected employers will conduct 
surveys to determine the APO of the vehicles arriving at their 
worksites between 6 a.m. and 10 a.m. and then develop a program to 
encourage their employees that arrive in single occupied vehicles to 
use an alternative means of commuting.
    Motorcycles used to commute to an affected worksite will be counted 
as vehicles since they have internal combustion engines. While USEPA 
recognizes the need for additional information on motorcycle emissions 
and commute patterns, current data show that motorcycles emit 
significantly more pollutants that help to form ozone than do light-
duty vehicles (e.g., passenger cars) on a grams/mile basis.
    Individuals who ride a motorcycle to an affected worksite between 6 
a.m. and 10 a.m. will be encouraged to find an alternative means of 
commuting to that worksite. However, as discussed above, there is 
nothing in the Act that would force motorcyclists to change commuting 
habits. Motorcyclists, like all employees, may accept or reject an 
employer's incentives to stop driving. Many motorcyclists could benefit 
by participating in carpools and vanpools, or using public transit 
programs that reduce stress and save money.
    Consequently, it is not necessary to exempt motorcycles from the 
ECO program since motorcycles have the same rights under the program as 
all other vehicles. ECO does not preclude the use of motorcycles as a 
commuting option; and does not eliminate the rights of Indiana citizens 
who choose to commute by motorcycle. In addition, the methodologies 
used to determine the AVO and APO do not need to be modified since they 
appropriately identify the number of vehicles with internal combustion 
engines on the road during the 6 a.m. to 10 a.m. peak period and the 
number of people traveling in those vehicles.

III. Final Rulemaking Action

    The State of Indiana has met the requirements of the Act by 
revising the Indiana ozone SIP to include an ECO 
[[Page 12700]] program. Therefore, USEPA approves the ECO program for 
Lake and Porter Counties.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to any SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, USEPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    The SIP approvals under section 110 and subchapter I, part D, of 
the Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on small entities affected. 
Moreover, due to the nature of the Federal-State relationship under the 
Act, preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Act forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 8, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Ozone.

    Dated: February 10, 1995.
David A. Ullrich,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart P--Indiana

    2. Section 52.770 is amended by adding paragraph (c)(92) to read as 
follows:


Sec. 52.770  Identification of plan.

* * * * *
    (c) * * *
    (92) On February 25, 1994, Indiana submitted an employee commute 
option rule intended to satisfy the requirements of section 
182(d)(1)(B) of the Clean Air Act Amendments of 1990.
    (i) Incorporation by reference. (A) Title 326 of the Indiana 
Administrative Code, Article 19 MOBILE SOURCE RULES, Rule 1, Employee 
Commute Options. Filed with the Secretary of State, October 28, 1993, 
effective November 29, 1993. Published at Indiana Register, Volume 17, 
Number 3, December 1, 1993.
* * * * *
[FR Doc. 95-5446 Filed 3-7-95; 8:45 am]
BILLING CODE 6560-50-P