[Federal Register Volume 66, Number 149 (Thursday, August 2, 2001)]
[Rules and Regulations]
[Pages 40137-40139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19162]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FL-83-1-200101; FRL-7022-3]


Approval and Promulgation of Implementation Plans: Florida; 
Approval of Revisions to the Florida State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Florida State Implementation 
Plan (SIP) submitted on December 10, 1999, by the State of Florida 
through the Florida Department of Environmental Protection (FDEP). This 
submittal consists of revisions to the ozone air quality maintenance 
plans for the Jacksonville (Duval County) and Southeast Florida 
(Broward, Dade, and Palm Beach Counties) areas to remove the emission 
reduction credits attributable to the Motor Vehicle Inspection Program 
(MVIP) from the future year emission projections contained in those 
plans. Florida submitted technical amendments to this revision on 
January 18, 2000. This revision updates the control strategy by 
removing emissions credit for the MVIP, and as such, transportation 
conformity must be redetermined by the Metropolitan Planning 
Organizations (MPOs) within 18 months of the final approval of this 
notice. EPA proposed approval of this revision to the Florida SIP on 
March 17, 2000.

EFFECTIVE DATE: This rule will be effective September 4, 2001.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Docket No. FL83-200101. The docket is available at the following 
address for inspection during normal business hours: Environmental 
Protection Agency, Atlanta Federal Center, Region 4 Air Planning 
Branch, 61 Forsyth Street S.W., Atlanta, Georgia 30303-3104.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur at 404/562-9035 (E-
mail: [email protected]).

SUPPLEMENTARY INFORMATION: The following sections: Background, Response 
to Comments, and Final Action, provide additional information 
concerning the revisions to the ozone air quality maintenance plans for 
the Jacksonville and Southeast Florida areas to remove the emission 
reduction credits attributable to the MVIP from the future year 
emission projections contained in those plans.

I. Background

    Today's action finalizes EPA's approval of the maintenance plan 
revisions submitted on December 10, 1999. A detailed description of 
Florida's submittal may be found in the Notice of Proposed Rulemaking 
for today's action, which was published in the Federal Register on 
March 17, 2000. On April 13, 2000, EPA extended the proposal's comment 
period and on June 20, 2000, EPA reopened the comment period and 
announced a public hearing. The hearing was held on July 20, 2000. EPA 
received numerous comments during the comment period. In addition to 
comments on the proposed action, EPA also received comments on the 
Florida Legislature's decision to shutdown the MVIP in all areas in the 
State. That decision and action by the Florida Legislature has no 
bearing on today's action and such comments will not be addressed here.

II. Response to Comments

    1. Comment: ``Elimination of the MVIP will result in adverse 
consequences. The likelihood that

[[Page 40138]]

damaged or destroyed original equipment catalytic converters will be 
replaced has diminished and the likelihood that catalytic converters 
will be illegally removed has increased.''
    2. Comment: ``Although cleaner engine and fuel technologies will 
help reduce emissions of tailpipe exhaust and evaporating gasoline, 
cars must be properly maintained and emission control systems must 
remain functional if these reductions are to be fully realized. The 
MVIP serves as a continuing incentive for motorists to have their 
vehicles serviced regularly, to replace emission control components as 
needed, and to avoid tampering with emission control equipment.''
    Response to comments 1 and 2: The revision to the maintenance plan 
takes into account the fact that some automobiles will not be properly 
maintained. This fact is reflected in the increase in the emissions 
budgets.
    3. Comment: ``EPA should disapprove Florida's request because it is 
fundamentally deficient on the merits.''
    4. Comment: ``FDEP's proposed modification is deficient in several 
fundamental respects. Among these deficiencies are both procedural and 
substantive defects, including the following:
    The nature and status of FDEP's proposal, and of EPA's notice of 
proposed rulemaking, are fundamentally ambiguous so that it is 
impossible to comment meaningfully on the proposal at this time. Thus, 
any further EPA action on FDEP's proposal would constitute a violation 
of the Administrative Procedure Act, 5 U.S.C. sections 551-559.
    Under the terms of section 175A of the Clean Air Act (CAA), 
maintenance plans may be revised only once, 8 years after redesignation 
and, even if ``interim'' modifications were permitted, the request must 
address projected emissions that occur over a 10 year time frame, 
commencing from the year of modification of the plan. FDEP must 
therefore demonstrate attainment of the relevant ozone standard through 
2010-11, not merely 2005.
    Trends in ozone design values in Southeast Florida and Duval County 
indicate that the MVIP remains critical to the maintenance of 
attainment status in those areas. In this regard, despite reductions in 
volatile organic compounds (VOC) and nitrogen oxides ( NOX) 
(ozone precursor) emissions, ozone concentrations in the relevant 
counties over the past several years have remained flat or increased.
    FDEP's proposal fails to meet the requirements of CAA section 175A, 
which require that the MVIP be included in the maintenance plans as a 
fully qualified, legislatively authorized, contingency measure.
    Without the MVIP, Southeast Florida and Duval County will likely be 
unable to make the transportation conformity demonstrations required by 
the CAA, and FDEP has failed to address this key concern in any 
meaningful manner.''
    Response to comments 3 and 4: Any revision to the maintenance plan 
must not have an adverse impact on maintenance of the national ambient 
air quality standard (NAAQS) for any criteria pollutant. Guidance on 
this issue is contained in a memorandum dated September 17, 1993, from 
Michael Shapiro, Acting Assistant Administrator for Air and Radiation 
entitled, ``State Implementation Plan Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide National Ambient Air Quality Standards on or after November 
15, 1992.'' This memo states:

    As a general policy, a state may not relax the adopted and 
implemented SIP upon the area's redesignation to attainment. States 
should continue to implement existing control strategies in order to 
maintain the standard. However, section 175A recognizes that States 
may be able to move SIP measures to the contingency plan upon 
redesignation if the state can adequately demonstrate that such 
action will not interfere with maintenance of the standard.

    The requirement for a second 10-year plan does not prohibit 
revisions to the existing 10-year maintenance plan. A revision to the 
existing 10-year maintenance plan prior to the required extension does 
not require the plan to be extended for another 10 years.
    Ozone trends are not at issue in this revision. There is no 
requirement that ozone concentrations cannot increase from one year to 
another, as long as there is not a violation of the one-hour ozone 
NAAQS.
    In this revision, Florida demonstrates that the area can maintain 
the one-hour ozone NAAQS without the implementation of the MVIP. The 
EPA has reviewed the State's emissions inventory and modeling analyses 
and finds that they meet applicable guidance and requirements. 
Therefore, the State has made the necessary demonstration that the MVIP 
is not necessary to maintain the one-hour ozone NAAQS and that 
attainment of the NAAQS for any other pollutant will not be affected by 
removing the MVIP from the SIP. In accordance with EPA's November 15, 
1992, policy, the State must include the MVIP as a contingency measure 
in the maintenance plan for the redesignated area, which it has done.
    Florida does not in this revision to the maintenance plan need to 
address the transportation conformity determination issue. This 
revision only removes the emission reduction credits attributable to 
the MVIP from the maintenance plan. Florida currently has a 
transportation conformity plan in place, but will need to perform 
another transportation conformity determination within 18 months of 
this final action, due to the revision to the emissions budgets.
    5. Comment: ``The MVIP is working to reduce air pollution. If the 
program is working, it should be continued.''
    6. Comment: ``If the program is not that effective, the EPA should 
force Florida to enhance the program.''
    Response to comments 5 and 6: Ground level ozone is formed by the 
reaction of hydrocarbons and nitrogen oxides (NOX) in the 
presence of sunlight. Both hydrocarbons and NOX are emitted 
by vehicles. However, air quality modeling performed by FDEP has 
indicated that the amount of NOX in the atmosphere is the 
controlling factor in the formation of ground level ozone over Florida. 
Therefore, controlling NOX becomes a more effective strategy 
for reducing ground level ozone concentrations. While the MVIP program 
in Florida has been effective at reducing hydrocarbon and carbon 
monoxide emissions from vehicles, is was not designed to reduce 
NOX. Such an inspection/maintenance program test must be 
conducted with the vehicle placed under a simulated driving load, on a 
dynamometer, as in the IM240 test. The implementation of such a test 
requires new testing equipment and longer test durations. Such a test 
is not mandated by the CAA for either the South Florida or Duval County 
ozone maintenance areas, and therefore can not be required by EPA at 
this time. As noted above, if the State can make the necessary 
demonstration that the MVIP is not necessary to maintain the one-hour 
ozone NAAQS, then the EPA cannot require the State to keep the program 
or to enhance it.

III. Final Action

    EPA is approving the aforementioned revisions to the Florida SIP 
because they are consistent with CAA and EPA requirements.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements

[[Page 40139]]

beyond those imposed by state law. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4). For the same reason, this rule also does not 
significantly or uniquely affect the communities of tribal governments, 
as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This 
rule will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it merely approves a state rule implementing a 
federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the Executive Order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. section 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 action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 October 1, 2001. 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, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: July 16, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Part 52 of chapter I, title 40, 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 et seq.

Subpart K--Florida

    2. Section 52.520 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 52.520  Identification of plan.

* * * * *
    (e) EPA-approved Florida non-regulatory provisions.

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                                                                              Federal Register
           Provision             State effective date    EPA approval date         notice          Explanation
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Revision to Maintenance Plans   December 10, 1999....  August 2, 2001.......  [Insert cite of
 for the Jacksonville and                                                      publication].
 Southeast Florida Areas.
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[FR Doc. 01-19162 Filed 8-1-01; 8:45 am]
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