[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70593-70595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32515]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ41-207, FRL-6509-4]


Approval and Promulgation of Implementation Plans; New Jersey; 
Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: Elsewhere in today's Federal Register, the Environmental 
Protection Agency (EPA) has published a rulemaking action proposing to 
find that the State of New Jersey will have implemented its enhanced 
inspection and maintenance (I/M) program when mandatory testing begins 
on December 13, 1999 and that EPA is reinstating the interim approval 
under section 348 of the National Highway Systems Designation Act 
(NHSDA). EPA is making an interim final determination that on December 
13, 1999, it is more likely than not that the program will be 
implemented curing the deficiencies which caused sanctions to be 
imposed. Therefore, the application of the offset sanction that began 
on June 14, 1999 is stayed and the application of the highway sanction 
is deferred as of December 13, 1999.

DATES: Effective December 13, 1999. Although this interim final rule 
will be effective on December 13, 1999, EPA is accepting comments as to 
whether the stay and deferral announced in this document should remain 
in effect. Comments must be received on or before January 18, 2000.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations: Environmental Protection Agency, Region II Office, 
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 
10007-1866 and New Jersey Department of Environmental Protection, 
Bureau of Air Quality Planning, 401 East State Street, CN418, Trenton, 
New Jersey 08625.
    All comments should be addressed to Raymond Werner, Acting Branch 
Chief, Air Programs Branch, Environmental Protection Agency, 290 
Broadway, 25th Floor, New York, New York 10007-1866.

FOR FURTHER INFORMATION CONTACT: Judy-Ann Mitchell, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    New Jersey submitted changes to the existing I/M program on March 
27, 1996 to satisfy the applicable requirements of both the Clean Air 
Act (CAA) and the National Highway System Designation Act (NHSDA). On 
October 31, 1996 (61 FR 56172), EPA published a notice of proposed 
conditional interim approval of New Jersey's enhanced I/M program. On 
May 14, 1997 (62 FR 26401), EPA published a final conditional interim 
approval of New Jersey's enhanced I/M program.
    Due to New Jersey's delays in starting the enhanced I/M program, 
EPA notified New Jersey by a December 12, 1997 letter that the 
sanctions clock was started for failure to implement the enhanced I/M 
program, in accordance with section 179(a)(4) of the Act. The offset 
sanction began in New Jersey on June 14, 1999. The highway sanction 
would begin six months thereafter if New Jersey did not implement the 
program. On November 19, 1999, New Jersey notified EPA by letter that 
the mandatory enhanced I/M program will be implemented on December 13, 
1999.

II. Interim Final Action

    Based on New Jersey's commitment to the start of the program on 
December 13, 1999, EPA believes that it is more likely than not that 
the State will have taken the steps necessary to start an approvable 
enhanced I/M program. Initiation of sanctions clocks on December 12, 
1997 was based on the fact that New Jersey did not start-up a mandatory 
approved enhanced I/M program. EPA is now able to conclude that since 
New Jersey is operating an I/M program that will be fully enforceable 
on December 13, 1999, the State will have met the obligation to 
implement the enhanced I/M program and sanctions should be stayed and 
deferred on December 13, 1999.
    In the event that the implementation is found to be inadequate, the 
stay and deferral may be removed and the sanctions imposed immediately 
upon such a finding in either a proposed or final rulemaking regarding 
implementation. A proposal to reinstate the interim approval under 
section 348 of the NHSDA and to stop the sanctions clock and lift any 
sanctions applied is published elsewhere in this Federal Register. 
Pursuant to 40 CFR 52.31(d)(4)(ii), the stay and deferral may be 
reinstated if EPA proposes to take action to find that the deficiency 
of having failed to implement the enhanced I/M program has not been 
corrected.
    EPA is publishing a separate document that will serve as the 
proposed reinstatement of the interim approval and finding that the 
State of New Jersey implemented the enhanced I/M program on December 
13, 1999. If comments are received which cause EPA to conclude that the 
enhanced I/M program has not been implemented, EPA will not proceed 
with the final rulemaking and both the offset and highway sanctions 
will be applied immediately via a letter and a Federal Register notice. 
Therefore, any comments which could affect this interim final 
determination must be submitted in response to the proposal to 
reinstate the interim approval and to stop the sanctions clock and lift 
the stay and deferral of the sanction. All public comments received 
will then be addressed in a subsequent final notice either 
reinstituting the sanctions or stopping this sanctions process pursuant 
to 40 CFR 51.31(d)(5). Parties interested in commenting should do so at 
this time.

III. Administrative Requirements

    Because New Jersey will have met the start-up requirements as 
defined by

[[Page 70594]]

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. 
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. Through this interim final determination action 
authorized by the EPA rule on sanctions, 40 CFR 52.31(d)(ii), the 
Agency concludes that it is more likely than not that the State will 
have satisfactorily implemented the I/M program, therefore eliminating 
the basis for imposition of sanctions. Therefore, it is not in the 
public interest to apply sanctions when the State has submitted an 
enforceable program which will start-up on December 13, 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 
stay and defer sanctions while EPA completes its rulemaking process 
regarding the lifting of the sanctions. 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 through the notice and comment process 
announced in this Federal Register regarding the permanent stopping 
of the sanctions clock and EPA will consider any comments received 
in determining whether to reverse the action taken in this interim 
final rule.
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A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 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, because it merely approves a state 
rule implementing a federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act.
    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 
Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 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.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

[[Page 70595]]

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that this action imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 15, 2000. Filing a 
petition for reconsideration by the Administrator of this interim final 
rule does not affect the finality of this rule for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Ozone, Volatile organic 
compounds.

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

    Dated: December 7, 1999.
Jeanne M. Fox,
Regional Administrator, Region 2.
[FR Doc. 99-32515 Filed 12-16-99; 8:45 am]
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