[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Proposed Rules]
[Pages 69589-69594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33476]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the New Hampshire 
State Implementation Plan (SIP), which was submitted to EPA for 
approval on September 4, 1998 by the Department of Environmental 
Protection (DES). This submittal was supplemented by a letter dated 
November 20, 1998 describing additional information about the New 
Hampshire I/M program, and requesting further flexibility from 
requirements applicable to the Ozone Transport Region (OTR) in light of 
the current air quality status of the area. The SIP revision includes 
New Hampshire Code of Administrative Rules, Part Saf-C 3220 ``Official 
Motor Vehicle Inspection Requirements'' and Part Saf-C 5800 ``Roadside 
Diesel Opacity Inspection'' and additional supporting material 
including authorizing legislation, administrative items, and a 
description of the program being implemented. This action is being 
taken under section 110 of the Clean Air Act.

DATES: Written comments must be received on or before January 19, 1999. 
Public comments on this document are requested and will be considered 
before taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203. 
Copies of the State submittal and EPA's technical support document are 
available for public inspection during normal business hours, by 
appointment, at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th floor, Boston, 
MA and the Air Resources Division, Department of Environmental 
Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-
2033.

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

SUPPLEMENTARY INFORMATION: On September 4, 1998, New Hampshire 
submitted a revision to its State

[[Page 69590]]

Implementation Plan (SIP) for vehicle inspection and maintenance (I/M). 
This submittal was supplemented by a letter dated November 20, 1998 
providing additional information about the New Hampshire I/M program, 
and requesting further flexibility from requirements applicable to the 
OTR in light of the current air quality status of the area. The SIP 
revision includes New Hampshire Code of Administrative Rules, Part Saf-
C 3220 ``Official Motor Vehicle Inspection Requirements'' and Part Saf-
C 5800 ``Roadside Diesel Opacity Inspection'' and additional supporting 
material including authorizing legislation, administrative items, and a 
description of the program being implemented. This action is being 
taken under Section 110 of the Clean Air Act.

I. Clean Air Act Requirements

    Section 184(b)(1)(A) of the Act requires certain areas in the Ozone 
Transport Region (OTR) to adopt and implement an inspection and 
maintenance program meeting EPA's enhanced I/M performance standard. 
EPA's I/M rule was established on November 5, 1992 (57 FR 52950). EPA 
made significant revisions to the I/M rule on September 18, 1995 (60 FR 
48035) and on July 25, 1996 (61 FR 39036). New Hampshire is affected by 
requirements of the Act related to I/M in certain areas of the State. 
Specifically, under EPA's I/M rule, enhanced I/M programs would be 
required in the Portsmouth-Dover-Rochester, New Hampshire ozone 
nonattainment area, and the New Hampshire portion of the Boston-
Worcester-Lawrence ozone nonattainment area. This program was initially 
submitted to fulfill New Hampshire's obligations to implement I/M 
pursuant to these requirements. Because of EPA's parallel notice in 
this Federal Register proposing that the 1-hour standard no longer 
applies in New Hampshire, the State would only be required to submit an 
I/M program because of its location in the OTR, as explained more fully 
below.
    By this action, EPA proposes to approve New Hampshire's submittal. 
EPA has reviewed the State submittal against the requirements of the 
Act and EPA's final I/M rule. The present version of the SIP submission 
does not meet all of the requirements of EPA's final rule for enhanced 
I/M. The program does, however, contribute to air quality improvement. 
Therefore, EPA proposes to approve the program for several reasons. 
First, New Hampshire has achieved all of its Clean Air Act control plan 
requirements for overall emission reductions without I/M. That is, the 
State has submitted an acceptable 15 percent VOC reduction plan, a 9 
percent rate of progress plan, an attainment demonstration, and based 
on 1996-1998 data in AIRS, has achieved attainment of the 1-hour ozone 
standard without the implementation of a vehicle I/M program. In 
addition, New Hampshire and all areas nearby, including Maine, Eastern 
Massachusetts, and Rhode Island appear to have attained the 1 hour 
ozone standard based on 1996-1998 data, as discussed elsewhere in the 
Federal Register. Additionally, New Hampshire does not contribute to 
nonattainment of the 1-hour ozone standard in any areas in the OTR (or 
elsewhere) where that standard continues to be violated based on 
evidence submitted by the State separately as part of their ozone 
attainment demonstration. Therefore, EPA has concluded that the State 
should not need to meet all the requirements for enhanced I/M in the 
OTR. Section 176A of the Clean Air Act states that the ``Administrator 
* * * may remove any State * * * from the [OTR] whenever the 
Administrator has reason to believe that control of emissions in that 
State * * * pursuant to [the Act requirements for the OTR] will not 
significantly contribute to attainment of the standard in the region.'' 
Implicit in EPA's authority to remove a State from the OTR entirely is 
the authority to eliminate or ``restructure'' specific control 
requirements for States that remain in the OTR, provided the State 
demonstrates that the control of emissions from such requirement will 
not significantly contribute to attainment of the 1-hour ozone standard 
anywhere in the OTR.
    We propose the State has met the test of section 176A and it has 
requested further flexibility in meeting the Clean Air Act requirements 
for I/M in the OTR. EPA believes that New Hampshire's continued 
participation in the OTR is beneficial, and that EPA's approval of this 
I/M program will improve air quality. Therefore, in light of the above, 
EPA is proposing to approve this I/M program as strengthening the SIP 
despite the fact that it does not meet all requirements for enhanced I/
M in the OTR. Further, EPA did finalize the NOX SIP call for 
22 States and the District of Columbia by notice dated October 27, 1998 
(63 FR 57356). New Hampshire was not included among those States, but 
EPA intends to conduct modeling to determine whether a SIP revision 
under section 110(a)(2)(D)(i)(I) should be required from New Hampshire 
in the future. Currently, EPA does not have evidence that emissions 
from sources in New Hampshire significantly contribute to 1-hour 
nonattainment downwind, but if EPA determines that sources in New 
Hampshire significantly contribute to downwind nonattainment, today's 
action will be revisited. EPA concludes that an enhanced I/M program is 
not required in New Hampshire because control of emissions from an I/M 
program would not contribute significantly to attainment of the 1-hour 
ozone standard in any area of the OTR. A summary of EPA's analysis of 
the State's I/M program is provided below.

II. I/M Regulation General SIP Submittal Requirements

    On November 5, 1992 (57 FR 52950), EPA published a final regulation 
establishing the I/M requirements, pursuant to sections 182, 184, and 
187 of the Act. EPA made significant revisions to the I/M rule on 
September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036). 
The I/M regulation was codified at 40 CFR Part 51, Subpart S, and 
requires States subject to the I/M requirement to submit an I/M SIP 
revision that includes all necessary legal authority and the items 
specified in 40 CFR 51.350 through 51.373.

III. State Submittal

    On September 4, 1998, and on November 20, 1998, the State of New 
Hampshire submitted an I/M SIP revision for the entire State. A public 
hearing for the September 4, 1998 submittal was held on August 24, 
1998.
    The I/M SIP submittal provides for the implementation of I/M in the 
entire State of New Hampshire beginning on January 1, 1999. New 
Hampshire will be implementing an annual, test and repair I/M program 
which the State has designed to meet the requirements of EPA's 
performance standard and most other requirements contained in the 
federal I/M rule. Testing will be overseen by the Department of Safety 
(DOS) and implemented by individual garages in the existing safety 
inspection network. Aspects of the New Hampshire I/M program include: 
anti-tampering testing of 1980 and later light duty vehicles and 
trucks, enforcement by the existing windshield safety inspection 
stickers, requirements for testing convenience, quality assurance, data 
collection, no cost waivers, reporting, test equipment and test 
procedure specifications, public information and consumer protection, 
inspector training and certification, penalties against inspectors 
which perform faulty inspections, and emission recall enforcement. An 
analysis of the New

[[Page 69591]]

Hampshire program, and New Hampshire's demonstration of how the I/M 
program meets many of the federal I/M SIP requirements, is provided 
below.

A. Applicability.

    The New Hampshire I/M regulations and authorizing legislation 
specify that the I/M program be implemented statewide.

B. Enhanced I/M Performance Standard

    The I/M program was designed, in part, to meet the enhanced I/M 
performance standard for ozone precursors causing air quality problems 
in New Hampshire. New Hampshire's program was designed to meet the 
performance standard for volatile organic compounds (VOC) and nitrogen 
oxides (NOX), under 40 CFR 51.351(h) of the I/M rule.
    The State submitted a modeling demonstration using the EPA computer 
model, MOBILE5b, showing that the enhanced performance standard will be 
met. The State's demonstration shows that it expects to achieve the 
reductions required by that section of the rule, and will utilize 
additional benefits from reformulated gasoline to ensure that the total 
reduction attributed to I/M meets federal I/M requirements.\1\
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    \1\ Certain areas in New Hampshire are currently classified as 
serious ozone nonattainment areas for the 1-hour standard. As such, 
they are not clearly eligible for the OTR low enhanced I/M standard 
in Sec. 51.351(h). As discussed above, in a separate Federal 
Register, EPA is proposing that the 1-hour ozone standard no longer 
applies in New Hampshire based on clean air quality measured from 
1996-1998. After this occurs, New Hampshire will only be subject to 
CAA enhanced I/M requirements by virtue of its inclusion in the OTR. 
Therefore, EPA proposes to approve this program because the emission 
reductions that would be achieved by a fully enhanced I/M program 
are not required in this OTR area.
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C. Network Type and Program Evaluation

    New Hampshire has chosen to implement a test and repair I/M network 
program design. The State has assumed conservative assumptions for 
credit claims relative to its network design in its demonstration that 
it meets the performance standard. EPA believes that a further 
demonstration is not necessary. Furthermore, EPA's OTR low enhanced 
rule does not require that the State perform additional program 
evaluations beyond the data reporting requirements of the I/M rule in 
the future.

D. Adequate Tools and Resources

    The State's SIP outlines the level of resources dedicated to the I/
M program, and includes descriptions of the funding expended and the 
personnel utilized within DOS to implement the program. The SIP also 
describes the role of DOS State Police enforcement personnel to be 
utilized in enforcing the program, and outlines plans for 6 more 
officers to be hired as part of the State Police Traffic Enforcement 
Unit, further bolstering the program's enforcement and oversight. DES 
will also play a role in implementing and analyzing the program. 
Finally, DOS intends to raise the ``per test fee'' collected for each 
inspection sticker sold to inspection stations, with the additional 
funds going to the State Highway fund, which the DOS Commissioner is 
authorized to spend on the I/M program implementation as needed.
    The State has described both current and future plans to ensure 
that adequate funding is provided to implement the program. While the 
State has described in significant detail the plans it has to ensure an 
effective program, the State has not dedicated funding to this effort. 
While EPA is approving this I/M program as strengthening the SIP, it 
does not meet EPA enhanced I/M rule requirements.

E. Test Frequency and Convenience

    The New Hampshire SIP revision requires annual inspections for all 
subject motor vehicles that are not older than 1980. The inspections 
will be conducted in concert with the existing schedule for the annual 
safety inspection program. Short waiting times and short driving 
distances are not an issue since this will be part of the State's 
existing safety inspection network, with longstanding stations 
scattered throughout the state prepared to test all subject vehicles.

F. Vehicle Coverage

    New Hampshire's I/M program covers all 1980 and newer model year 
gasoline powered light-duty vehicles and light-duty trucks, registered, 
or required to be registered, within the State. Based on discussions 
with the State, EPA evaluated the effect of the fact that antique 
vehicles are exempt and determined that such exemptions would not 
prevent the program from achieving the performance standard. Legal 
authority for the vehicle coverage requirement is contained in the New 
Hampshire I/M rule and the July 1998 authorizing legislation. EPA 
proposes to approve the submission as a strengthening of the SIP based 
on the DES's submittal, although it has not met all EPA rule 
requirements.

G. Test Procedures and Standards

    The New Hampshire I/M SIP revision obligates the State to perform 
anti-tampering checks of the nature described in the plan submission. 
The State will be requiring these checks for 1980 and later model year 
vehicles in the area. The following anti-tampering checks will be 
performed: (1) check for the presence of the catalytic converter; (2) 
check for air pump disablements; (3) check for PCV system disablements; 
(4) check for evaporative system disablements; and (5) check for the 
presence, and proper fit of the gas cap. In addition, the State of New 
Hampshire will be requiring OBD2 system checks in accordance with EPA 
rules, beginning in 2001. EPA proposes approval of the anti-tampering 
testing program, but the State has not developed or submitted OBD2 
rules at this time.

H. Test Equipment

    In its September 4, 1998 submittal, New Hampshire's I/M SIP 
revision describes procedures to follow to test vehicles. These 
procedures are articulated in more detail in the Safety Inspection 
Manual, and Saf-c 3200. The OBD2 testing program has not been fully 
described or submitted.
    The SIP does not include a ``real time'' data link, but instead 
ensures that every vehicle which leaves a station leaves with either a 
passing sticker or failing sticker. All those that are issued failing 
stickers are later followed up by State Police actually physically 
inspecting the failed vehicle to ensure that proper repairs were 
performed. This will prevent vehicle owners from presenting themselves 
for multiple initial tests, one of the primary reasons for a real time 
data link. While a real time data link would still be helpful in 
collecting data, the State intends to collect the necessary data.

I. Quality Control

    The New Hampshire I/M SIP narrative and Saf-c 3200 outline the 
quality control procedures. However, since no test equipment is 
utilized, it is minimal. Efforts to ensure that documents related to 
the inspection remain secure are already in place and enforced by the 
State Police and by DOS as part of the existing safety inspection 
program.

J. Waivers and Compliance via Diagnostic Inspection

    Since New Hampshire is implementing largely an anti-tampering 
program, it will not be issuing any waivers whatsoever, and this is 
approvable.

[[Page 69592]]

K. Motorist Compliance Enforcement

    The State of New Hampshire has chosen to use a program of 
windshield sticker based enforcement, based on its current safety 
inspection program. Any vehicle driven without a valid sticker will 
ultimately be caught by law enforcement officials, and failure to 
comply at this point would result in registration being suspended, and 
could result in a warrant for arrest being issued. The motorist 
compliance enforcement program will be implemented primarily by the New 
Hampshire Department of Safety (DOS). The enforcement strategy is 
described in New Hampshire's September 4, 1998 submittal. The 
enforcement strategy is designed to ensure a high rate of compliance 
rate for all vehicles within a short time of the compliance deadline. 
As described in the September 4, 1998 submittal, this will be 
accomplished by a increased surveillance by law enforcement officials 
to identify uninspected and unregistered vehicles. New Hampshire 
estimates that over 99.5% of the vehicles in the State are registered. 
Those vehicles operated without a valid safety inspection sticker are 
fined, and put on notice that their registration will be suspended if 
they do not comply. Those that still fail to comply may be issued a 
bench warrant for arrest. In addition to the current enforcement 
effort, DOS intends to secure additional funding for 6 new enforcement 
officials dedicated to enforcement of the inspection requirement. 
Funding of these officers will help ensure an even more effective 
mechanism for enforcement of the inspection requirement. New Hampshire 
does have a penalty system whose purpose is to deter noncompliance, but 
the penalties imposed may not be a sufficient incentive to deter 
noncompliance if a vehicle owner expects that significant repairs will 
be required upon inspection.
    This program is not viewed as intrusive to the general public, and 
it is not likely that New Hampshire citizens will take additional steps 
to avoid this I/M program. EPA is comfortable that, in light of the 
type of vehicle ``testing'' being proposed, New Hampshire's program 
will be enforced in a manner commensurate with the type of program 
implemented, and emission reductions expected. However, this section of 
the State's program does not meet Clean Air Act requirements to have 
the program based on vehicle registration. Further, the State did not 
make a demonstration that this ``pre-existing'' enforcement mechanism 
would be more effective than registration denial would be, nor has it 
committed to ensuring the continued effectiveness of sticker based 
enforcement mechanism. EPA believes that a registration based program 
would be more effective than sticker based enforcement since by the 
State's own estimation, there is over a 99.5% compliance rate with the 
vehicle registration requirement. Nevertheless, for reasons outlined 
elsewhere in this notice, EPA believes that this program should be 
approved because it will strengthen the SIP, despite the fact that it 
does not meet the requirements for enhanced I/M under the Clean Air 
Act. The legal authority to implement and enforce the program is 
included in the New Hampshire State law and in DOS rules.

L. Motorist Compliance Enforcement Program Oversight

    The New Hampshire I/M SIP revision provides for regular auditing of 
its enforcement program and adherence to effective management 
practices, including adjustments to improve the program when necessary. 
According to the September 4, 1998 submittal from the DES, these 
program oversight and information management activities include direct 
enforcement of the inspection requirement by State Police. State Police 
routinely conduct overt audits of the 2,500 inspection stations in the 
State, and will reinstate their practice of initiating covert audits. 
Any vehicle which leaves a inspection station with a reject sticker is 
followed-up by the State Police physically inspecting each failed 
vehicle to ensure proper repairs were performed. As stated earlier, the 
State will be dedicating additional resources to this inspection 
effort, and will provide additional training to officers stressing the 
increased importance of these emission checks. The State's efforts for 
the motorist compliance enforcement program are acceptable for the 
purposes of strengthening the SIP.

M. Quality Assurance

    The September 4, 1998 submittal from New Hampshire includes a 
description of the quality assurance program. The program will include 
operation and progress reports and overt and covert audits of emission 
inspection facilities which are conducted by State Police and 
Department of Safety officers. These officers are auditing to ensure 
both the certified inspectors and the stations are following 
established inspection requirements as codified under the 
administrative rule Saf-c 3200. Included in these audits will be 
documentation checks, and a check to determine if stickers and 
reporting documents are secure. The State intends to further develop 
audit procedures to implement the OBD2 testing program, and the State 
envisions that further training will be required.

N. Enforcement Against Contractors, Stations and Inspectors

    The New Hampshire I/M SIP revision describes specific sanctions 
available in its enforcement against stations and inspectors which fail 
to give proper inspections. An inspector can be given a criminal 
violation and is disciplined administratively. Upon being given a 
hearing, the inspector may be given ``6 points'' on their driving 
record, which is the same penalty as for driving while intoxicated. 
Further, inspection stations can have their privilege to inspect cars 
suspended or revoked. While this section of the State's program may be 
appropriate for the type of program the State is implementing for the 
purpose of strengthening the SIP, it does not meet all I/M rule 
requirements.

O. Data Collection, Analysis, and Reporting

    The New Hampshire I/M SIP provides for collecting test data to link 
specific test results to specific vehicles, I/M program registrants, 
test sites, and inspectors. The SIP lists the specific types of test 
data and quality control data which will be collected, which include: 
date of inspection, station identification number, technician name, 
customer name, vehicle ID and license plate number, vehicle make, 
model, model year and mileage, pass/fail determination, reason for 
failure, inspection sticker number, and repairs performed. As outlined 
above and described in the September 4, 1998 submittal, the data will 
be used to generate reports concerning test data, quality assurance, 
quality control, enforcement, as well as determine the emission 
benefits of the program.

P. Inspector Training and Licensing or Certification

    The September 4, 1998 submittal describes the training and the 
testing that is required of each inspector, prior to being certified to 
perform these tests. The DOS has committed to perform additional 
training for inspectors in advance of OBD2 testing being implemented.

Q. Improving Repair Effectiveness

    In the September 4, 1998 submittal, the State committed to perform 
additional training regarding the new anti-tampering checks that have 
been added to the safety inspection program.

[[Page 69593]]

However, the State maintains that mechanics will not need training 
helping them repair these tampered vehicles because the type of repairs 
that this anti-tampering will identify are relatively routine. The DES 
does intend to provide additional OBD2 training in the future.

R. Compliance with Recall Notices

    The revised New Hampshire I/M SIP will ensure that vehicles subject 
to its I/M program, that are included in either a voluntary emission 
recall or a remedial plan determination pursuant to the CAA, have had 
the appropriate repairs made prior to the inspection. Vehicles that 
have received recall notices will be followed up by New Hampshire law 
enforcement in ``the same way (that) vehicles that fail the inspection 
* * * are followed up * * *'' This means that all vehicles which 
receive a recall notice will be followed-up by a law enforcement 
official to ensure that appropriate repairs are performed.

S. On-Road Testing

    New Hampshire has stated that it is performing a study to determine 
the effectiveness of remote sensing for NOx to determine whether or not 
to add it as part of its vehicle testing program. That study was called 
for as part of the State's enabling legislation for I/M. While the 
State hopes to move forward with an on-road testing program in the 
future, it does not have the authority to do so now.

T. Concluding Statement

    A more detailed analysis of the State's submittal is contained in 
the EPA's technical support document prepared for this action. The TSD 
is available from the EPA New England Regional office listed above. The 
criteria used to review the submitted SIP revision are based on the 
requirements set forth in Section 182 of the CAA and in the federal I/M 
regulations. The New Hampshire regulations and accompanying materials 
contained in the SIP represent an acceptable I/M plan for the purpose 
of strengthening the New Hampshire SIP.

IV. Proposed Action

    EPA is proposing to approve the SIP revision submitted by New 
Hampshire on September 4, 1998 and on November 20, 1998 as a revision 
to the SIP. The SIP revision proposes approval of the State's I/M 
program. While the I/M program does not meet all of the requirements of 
the enhanced I/M rule, EPA has determined, based on the State's showing 
that additional reductions from a fully enhanced I/M program will not 
significantly contribute to attainment of the 1-hour ozone standard 
anywhere in the OTR, that the requirements for an enhanced I/M program 
are not required in New Hampshire. Therefore, EPA is approving the New 
Hampshire I/M program as strengthening the SIP.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this action.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget, a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments that does not already exist as a matter of State law. EPA 
is simply approving a state regulation under the Clean Air Act. 
Accordingly, the requirements of section 1(a) of E.O. 12875 do not 
apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is not 
``economically significant'' as defined under E.O. 12866, and does not 
involve an action that addresses environmental or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment

[[Page 69594]]

rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This proposed rule 
will not have a significant impact on a substantial number of small 
entities because SIP approvals under section 110 and subchapter I, part 
D of the Clean Air Act do not create any new requirements but simply 
approve requirements that the State is already imposing. Therefore, 
because the Federal SIP approval does not create any new requirements, 
I certify that this action will not have a significant economic impact 
on a substantial number of small entities. Moreover, due to the nature 
of the Federal-State relationship under the Clean Air Act, preparation 
of flexibility analysis would constitute Federal inquiry into the 
economic reasonableness of state action. The Clean Air Act forbids EPA 
to base its actions concerning SIPs on such grounds. Union Electric Co. 
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. Section 7410(a)(2).

F. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

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

    Dated: December 9, 1998.
Robert Perciasepe,
Assistant Administrator, OAR.
[FR Doc. 98-33476 Filed 12-16-98; 8:45 am]
BILLING CODE 6560-50-P