[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Rules and Regulations]
[Pages 66775-66778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30780]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA073-7207A;A-1-FRL-6481-2]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Massachusetts; Interim Final Determination That Massachusetts 
Has Corrected the Deficiencies of Its I/M SIP Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: On September 27, 1999, EPA published in the Federal Register 
(64 FR 51937) a rulemaking action proposing approval of the 
Commonwealth of Massachusetts' motor vehicle inspection and maintenance 
(I/M) program, and in a separate action (64 FR 51943) proposing 
approval of rate-of-progress (ROP) plans as part of the State 
Implementation Plan (SIP), under Section 110 of the Clean Air Act 
(CAA). Elsewhere in today's Federal Register EPA is publishing a 
supplemental proposed rulemaking notice for comment clarifying the test 
method used in Massachusetts' I/M program, providing additional 
information on the emission reduction credit projected for the program, 
and explaining the impact on the ROP plans. Based on the proposed 
action, today's supplemental document, the commencement of I/M program 
roll-out on October 1, 1999, and the commitments made by the 
Commonwealth, including a commitment to fully enforce compliance with 
the I/M program as of December 15, 1999, EPA is making an interim final 
determination that the State will have more likely than not implemented 
an approvable enhanced 
I/M program when it becomes effective on December 15, 1999. Today's 
action will, beginning on December 15, 1999, defer the application of 
the offset sanction that has been in effect since May 15, 1999, and the 
federal highway fund sanctions that take effect on November 15, 1999.

DATES: Effective Date: This rule is effective December 15, 1999.  
Comments: Written comments must be received on or before December 30, 
1999. Public comments on this document are requested and, although this 
action will be effective on December 15, 1999, comments will be 
considered for appropriate subsequent action.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, One Congress St., Suite 1100, Boston, MA 
02114-2023. Copies of the Commonwealth's submittal are available for 
public inspection during normal business hours, by appointment, at the 
above EPA address and Division of Air Quality Control, Department of 
Environmental Protection, One Winter Street, 8th Floor, Boston, MA 
02108.

FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 918-1049.

SUPPLEMENTARY INFORMATION: On March 27, 1997 Massachusetts submitted an 
inspection and maintenance plan under the provisions of the National 
Highway Systems Designation Act. On July 14, 1997, EPA published in the 
Federal Register (62 FR 37506) an Interim Final Rule conditionally 
approving the I/M SIP submitted by the Commonwealth. The notice 
conditioned approval on start-up of the program by November 15, 1997 
which was based on a commitment made by Massachusetts as part of the 
SIP submittal. That Federal Register notice also listed other elements 
of the I/M program for which Massachusetts was required to submit 
additional information. By means of a November 14, 1997, letter, EPA 
notified Massachusetts that EPA was converting the conditional approval 
of the Massachusetts enhanced I/M SIP revision to a disapproval on 
November 15, 1997 due to the fact that the program was not starting on 
November 15, 1997. The letter triggered the 18-month time clock for the 
mandatory application of sanctions under section 179(a) of the CAA. 
Therefore, the Act's offset sanction applied beginning May 15, 1999 
because Massachusetts still had no enhanced I/M program started or 
approved as part of its SIP.
    In order to remedy that failure, on May 14, 1999, Massachusetts 
submitted a revision to its SIP for an enhanced 
I/M program to begin on October 1, 1999. Massachusetts in fact 
commenced operation of the program on October 1, 1999. Although the SIP 
revision provided for start-up of an enhanced 
I/M program, there were other elements of the I/M SIP identified in the 
September 27, 1999 Federal Register proposed approval which needed to 
be addressed prior to final action by EPA. These elements will be 
addressed by the contractor Massachusetts has retained to implement the 
program and are listed as work elements of the contractor's scope of 
services. Since the focus of Massachusetts and the contractor has been 
program start-up, these elements have not been addressed by the 
contractor to date. In response to EPA's September 27, 1999 proposed 
approval which describes the program elements Massachusetts must 
supplement, Massachusetts submitted a letter dated November 3, 1999 
with a schedule for submitting these elements from January to March 
2000. An additional letter dated November 15, 1999 informed EPA that 
Massachusetts has taken steps that ensure the I/M program will be fully 
enforced starting December 15, 1999. Additional information submitted 
in support of the Massachusetts I/M program is included in the contract 
with Keating Technologies signed January 28, 1999, Department of 
Environmental Protection (DEP) Regulations, chapter 310 CMR 60.02, 
Registry of Motor Vehicles Regulations, chapter 540 CMR 4.00-4.09, and 
administrative items,

[[Page 66776]]

including a description of the program being implemented and DEP's 
response to comments document dated May 14, 1999.

II. EPA's Current Rulemaking Actions

    On September 27, 1999 EPA proposed approval of the Massachusetts I/
M SIP revision to meet the requirements of the federal I/M rule. In 
addition, on the same day EPA proposed approval of the Massachusetts 
rate-of-progress emission reduction plans which includes the 15% plan. 
In order for Massachusetts to meet the low enhanced performance 
standard for I/M the 15% plan must be approvable. In today's Federal 
Register EPA is publishing a supplemental notice of proposed rulemaking 
providing additional information concerning testing in the I/M program, 
estimates of emission reductions achieved by the program, and the 
schedule for submittal of additional elements for the Massachusetts I/M 
program. The same notice addresses the impact of the changes in 
estimated emission reduction credits from I/M on the 15% plan.
    Critical to EPA's finding to stay sanctions is the Agency's 
determination that Massachusetts has taken the steps necessary to 
ensure program start-up by December 15, 1999. Although Massachusetts 
commenced operation of the I/M program on October 1, 1999, there were 
routine start-up difficulties which required that DEP temper full 
enforcement of the program for two and one half months. During October, 
November and early December 1999, the Commonwealth is allowing drivers 
to obtain pre-printed stickers approving cars to operate for a year if 
a station in the program did not have fully operational test equipment 
ready when a driver came in for a test. In its November 15, 1999 letter 
to EPA, Massachusetts has indicated that such pre-printed stickers will 
not be available starting December 15, 1999, and any car that must get 
tested will be required to find a station with operable testing 
equipment. This step ensures that the I/M program will meet EPA's 
definition of start-up and that Massachusetts will be fully enforcing 
an approvable I/M as of December 15, 1999.
    EPA believes, as a result of the proposed rulemaking actions and 
the fact that Massachusetts commenced operation of the I/M program on 
October 1, 1999, has committed to submitting additional information 
necessary to fully approve that program and has prohibited the use of 
pre-printed stickers to meet EPA's definition of start-up by December 
15, 1999, that it is more likely than not that Massachusetts will have 
a fully approvable I/M SIP that has started up as of December 15, 1999. 
Given the fact that the contract was not signed until late January 1999 
and the magnitude of the Massachusetts program, it is commendable that 
Massachusetts met the start-up criteria by December 15, 1999. The 
state's failure to start-up an approvable enhanced I/M program by 
November 15, 1997 was what triggered the sanctions clock in 
Massachusetts. The state has now taken the steps necessary to fully 
enforce a transient testing program by December 15, 1999 to cure the 
problem which triggered the sanctions clock.
    This interim determination will not halt or reset the sanctions 
deadlines, but will defer the implementation of sanctions until EPA 
takes final action on the SIP. In the proposed rule for the 
Massachusetts I/M program, EPA proposed in the alternative to issue a 
limited approval/limited disapproval of the program if Massachusetts 
failed to start the program in a timely manner or failed to submit any 
of the program elements that the Contractor will provide under its 
scope of work. The limited disapproval would effectively withdraw the 
proposed approval. Withdrawal of the proposed approval would result in 
growth and highway sanctions being imposed again immediately.
    This action will take effect on December 15, 1999, when vehicles 
can no longer postpone the emissions inspection in Massachusetts 
through the use of pre-printed stickers. Should Massachusetts continue 
to issue pre-printed stickers after December 15, 1999, EPA will 
withdraw this determination and sanctions will go back in effect until 
pre-printed stickers are no longer issued and EPA reinstates this 
determination. EPA will take comment on this interim final 
determination. EPA will publish a final notice taking into 
consideration any comments received on EPA's proposed actions and this 
interim final action. If, based on any comments received by EPA upon 
this interim final determination action and any comments on EPA's 
proposed approval or supplemental proposed approval with respect to 
Massachusetts' I/M SIP or rate-of-progress revisions, EPA determines 
that those actions are inappropriate and the SIP revisions are not 
approvable and, therefore, this final action was also inappropriate, 
EPA will take further action to withdraw this action and the proposed 
approval of the Massachusetts I/M SIP revision, thereby returning the 
SIP to disapproved status. If this action is withdrawn or EPA's 
proposed approval of the Massachusetts I/M SIP revision is disapproved, 
then sanctions would be applied as required under Section 179(a) of the 
CAA and 40 CFR 52.31.

III. EPA Action

    Based on the proposed approval of the Massachusetts I/M SIP in the 
September 27, 1999 Federal Register and the start-up of the program on 
December 15, 1999, EPA believes that it is more likely than not that 
the Commonwealth has taken the steps necessary to start an approvable 
enhanced I/M program. Disapproval of the Massachusetts I/M SIP and 
initiation of sanctions clocks on November 15, 1997 was based on the 
fact that Massachusetts did not start-up an approved enhanced I/M 
program. Therefore, EPA concludes that since Massachusetts is operating 
an I/M program that will be fully enforceable on December 15, 1999, the 
Commonwealth will have met the start-up definition and sanctions should 
be stayed on December 15, 1999. In the event the Commonwealth fails to 
submit the other elements of the program, EPA will issue a limited 
disapproval which will lift this stay of sanctions and reimpose them at 
that time.
    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 the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Administrative Requirements

    Because Massachusetts has met the start-up requirements as defined 
by EPA, relief from sanctions should be provided as quickly as 
possible. Therefore, EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect.\1\ 5 U.S.C. section 553(b)(B). 
The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. The EPA has reviewed and proposed approval of the 
State's May 14, 1999 I/M SIP revision. Through this interim final 
determination action, the Agency believes that it is more likely than 
not that the Commonwealth will have submitted all the necessary 
information to meet the requirements for start-up of

[[Page 66777]]

an approvable I/M program, therefore eliminating the basis for 
imposition of sanctions. Therefore, it is not in the public interest to 
apply sanctions when the Commonwealth has submitted an enforceable 
program which will start-up on December 15, 1999. Moreover, it would be 
impracticable to go through notice-and-comment rulemaking on a finding 
that the State is no longer subject to that requirement prior to the 
date sanctions would take effect. Therefore, EPA believes that it is 
necessary to use the interim final rulemaking process to defer 
sanctions while EPA completes its rulemaking process. In addition, EPA 
is invoking the good cause exception to the 30-day advance notice 
requirement of the APA because the purpose of this notice is to relieve 
a restriction. See 5 U.S.C. 553(d)(1).
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    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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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 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final 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. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 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 under E.O. 12866 and does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, 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 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 rule will not have a significant impact on a 
substantial number of small entities because it does not create any new 
requirements. Therefore, because this rule 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.

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 
this 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 imposes no new requirements. Accordingly, no additional 
costs to State, local, or tribal governments, or to the private sector, 
result from this action.

[[Page 66778]]

G. Submission to Congress and the General Accounting Office

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made a good cause finding, including 
reasons thereof, and established an effective date of December 15, 
1999. EPA will submit a report containing this rule and other required 
information to the United States Senate, the House of Representatives, 
and the Comptroller General of the United States prior to publication 
of the rule in the Federal Register. This action is not a ``major 
rule'' as defined by U.S.C. 804(2).

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: November 15, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-30780 Filed 11-29-99; 8:45 am]
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