[Federal Register Volume 72, Number 61 (Friday, March 30, 2007)]
[Rules and Regulations]
[Pages 15046-15049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5558]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2005-AZ-0009; FRL-8284-2]


Approval and Promulgation of Implementation Plans; Arizona; Motor 
Vehicle Inspection and Maintenance Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving two revisions to the Arizona State 
Implementation Plan submitted by the Arizona Department of 
Environmental Quality. These revisions consist of: changes to Arizona's 
Basic and Enhanced Vehicle Emissions Inspection Programs to exempt 
collectible vehicles in the Phoenix metropolitan area, and collectible 
vehicles and motorcycles in the Tucson metropolitan area, from 
emissions testing requirements; an updated performance standard 
evaluation for the vehicle emissions inspection program in the Phoenix 
area; and new contingency measures. EPA is approving these two state 
implementation plan revisions because they meet all applicable 
requirements of the Clean Air Act and EPA's regulations and because the 
exemptions will not interfere with attainment or maintenance of the 
national ambient air quality standards in the two affected areas. EPA 
is finalizing this action

[[Page 15047]]

under the Clean Air Act obligation to take action on State submittals 
of revisions to state implementation plans. The intended effect is to 
exempt these vehicle categories from the emissions testing requirements 
of the State's vehicle emissions inspection programs as approved for 
the Phoenix and Tucson areas but also to provide a mechanism to 
reinstate the requirements in the event of a violation of the carbon 
monoxide national ambient air quality standard in the Phoenix or Tucson 
area.

DATES: Effective Date: This rule is effective on April 30, 2007.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at EPA 
Region 9's Air Planning Office (AIR-2), 75 Hawthorne Street, San 
Francisco, CA, 94105-3901. Due to increased security, we suggest that 
you call at least 24 hours prior to visiting the Regional Office so 
that we can make arrangements to have someone meet you.

Electronic Availability

    This document and our proposed rule which was published in the 
Federal Register on December 28, 2006 are also available as electronic 
files on EPA's Region 9 webpage at http://www.epa.gov/region09/air/actions/az.html.

FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, 
U.S. Environmental Protection Agency, Region 9, (520) 622-1622, e-mail: 
[email protected], or refer to http://www.epa.gov/region09/air/actions/az.html.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we'', 
``us'', and ``our'' refer to EPA.

Table of Contents

I. Background
II. Response to Comments
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On December 28, 2006 (71 FR 78115), we proposed to approve, under 
the Clean Air Act (CAA or ``Act''), two revisions submitted by the 
Arizona Department of Environmental Quality (ADEQ) of the Arizona State 
Implementation Plan (SIP). Both SIP revisions relate to Arizona's Basic 
and Enhanced Vehicle Emissions Inspection/Maintenance (VEI) Programs 
implemented in the Tucson and Phoenix areas, respectively.
    ADEQ submitted the first VEI SIP revision on December 23, 2005 
(``VEI SIP Revision''). The VEI SIP Revision submittal includes the SIP 
revision itself, divided into a non-regulatory portion, ``Final Arizona 
State Implementation Plan Revision, Basic and Enhanced Vehicle 
Emissions Inspection/Maintenance Programs'' (December 2005), and a 
regulatory portion, House Bill (HB) 2357, as well as supporting 
materials related to legal authority, adoption, public process and 
technical analysis.
    HB 2357 amends Arizona Revised Statutes (ARS) Section 49-542 by 
exempting vehicles that are at least 15 years old or are of a unique 
and rare design and that carry collectible vehicle insurance that 
restricts the mileage and/or use of the vehicle (``collectible 
vehicles'') from emission testing in both Area A (i.e., the Phoenix 
area) and Area B (i.e., the Tucson area). In addition, HB 2357 exempts 
motorcycles in the Tucson area from emissions testing. Specifically, 
the amendments to ARS 49-542 are found in paragraphs or subparagraphs 
(J)(2)(k), (J)(2)(l), (Y), and (Z) of that section of code. The changes 
to ARS Section 49-542 are self-implementing, which means that they 
become effective upon EPA approval as a revision to the Arizona SIP.
    Among the technical materials included in the VEI SIP Revision 
submittal package is a report \1\ prepared by ADEQ that evaluates the 
impacts of exempting three vehicle categories (vehicles 25 model years 
old and older, motorcycles, and collectible vehicles) from the 
emissions testing requirements on ambient air quality and on the 
ability of Areas A and B (i.e., Phoenix and Tucson, respectively) to 
maintain or attain the national ambient air quality standards (NAAQS). 
The report concluded that the testing and repair of these vehicle 
categories as a whole does provide a significant air quality benefit. 
The analysis, however, also identified a subset of vehicle categories 
(collectible vehicles in Phoenix and Tucson plus motorcycles in Tucson) 
for which the emissions testing requirement does not provide a 
significant air quality benefit and for which exemption would not 
interfere with continued maintenance of the CO NAAQS or progress 
towards the 8-hour ozone NAAQS. HB 2357 was a Legislative response to 
the findings in this report.
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    \1\ ``Report on Potential Exemptions from Vehicle Emissions 
Testing for Motorcycles, Collectible Vehicles, and Vehicles 25 Model 
Years Old and Older'' (December 2004).
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    In consultation with EPA concerning the VEI SIP Revision, ADEQ 
prepared an updated performance standard evaluation for the VEI program 
in the Phoenix area to reflect the new exemption for collectible 
vehicles, and developed new contingency measures that are intended to 
provide for reinstatement of emissions testing for the newly exempt 
vehicle categories in the event that a violation of the carbon monoxide 
NAAQS were to be recorded in the Phoenix or Tucson area. On October 3, 
2006, ADEQ adopted and submitted the updated performance standard 
evaluation and new contingency measures in a second SIP revision, 
entitled, ``Supplement to Final Arizona State Implementation Plan 
Revision, Basic and Enhanced Vehicle Emissions Inspection/Maintenance 
Programs, December 2005'' (September 2006) (``VEI SIP Supplement''). As 
part of the submittal of the VEI SIP Supplement, ADEQ documented the 
public participation process that was conducted by ADEQ prior to 
adoption and submittal to EPA.
    Our December 28, 2006 proposed rule provides our evaluation of 
these two SIP submittals and our rationale for concluding that the 
submittals meet all relevant CAA requirements including SIP revision 
procedural requirements, vehicle inspection and maintenance program 
requirements, requirements under CAA section 110(l) related to non-
interference with attainment and maintenance of the NAAQS, and 
contingency provision requirements under CAA section 175A(d). Please 
see our December 28, 2006 proposed rule for more information concerning 
the SIP revision submittals, our evaluation of them, and our rationale 
for proposing approval.

II. Response to Comments

    Our December 28, 2006 proposed rule provided a 30-day public 
comment period. We received comments from 40 commenters on our proposed 
rule during the public comment period. Most were supportive of our 
proposed action. We are responding to the five commenters who disagreed 
with our action.
    Comment. One commenter agrees with the proposal but states that 
vehicles 25 years old or older should also be exempt.
    Response. Arizona House Bill (HB) 2501, as amended by HB 2294, 
required ADEQ to evaluate whether vehicles 25 years old and older in 
combination with collectible vehicles or motorcycles could be exempt 
from emissions testing. The report concluded that the testing and 
repair of these vehicle categories as a whole does provide significant 
air quality benefit. The analysis, however, also identified a subset of 
vehicle categories (collectible vehicles in Phoenix and Tucson and 
motorcycles in

[[Page 15048]]

Tucson) for which the emissions testing requirement does not provide a 
significant air quality benefit and for which exemption would not 
interfere with continued maintenance of the CO NAAQS or progress 
towards the 8-hour ozone NAAQS. HB 2357 (i.e., the regulatory portion 
of the VEI SIP Revision) was a Legislative response to the findings in 
this report.
    Comment. One commenter suggests various changes to the new 
statutory exemption for collectible vehicles that would make the 
exemption less restrictive and thereby allow a greater number of 
collectors to fall within the exemption.
    Response. In reviewing SIP submissions, EPA's role is to approve 
state choices, provided that they meet minimum criteria set by the 
Clean Air Act or any applicable EPA regulations. Any changes to Arizona 
law expanding the exemption for collectible vehicles would need first 
to be introduced as a new bill in the Arizona Legislature. If passed 
and approved by the Governor, such a statutory change would then need 
to be submitted by ADEQ to EPA for approval with documentation showing 
continued compliance with all relevant CAA and EPA requirements 
including a demonstration of non-interference with the ambient air 
quality standards under section 110(l) of the CAA.
    Comment. One commenter states that motorcycles should not be exempt 
from the vehicle emissions inspection program in Tucson, unless EPA has 
solid evidence that very few, if any, motorcycles pose a pollution 
problem, or that the Tucson inspection program passes essentially all 
motorcycles, so providing little environmental benefit.
    Response. ADEQ's statistics about the VEI program indicate that 
between 2003 and 2006, from 91.3 to 94.9 percent of motorcycles in the 
Tucson area passed the vehicle emissions test on their initial pass on 
an annual basis . These statistics provide further support for our 
conclusion that exemption of motorcycles from emissions testing 
requirements of the VEI program would not interfere with attainment or 
maintenance of the NAAQS in the Tucson area.
    Comment. The fourth commenter states that he opposes this type of 
``reverse regulation'' (removing of grandfathering) of old, collectible 
cars. He states that making people retrofit emissions equipment on 
older vehicles is infeasible, costly, and that owners are unlikely to 
comply.
    Response. This commenter appears to have misunderstood EPA's 
action. We are approving an exemption to Arizona's vehicle inspection 
program for owners of collectible vehicles which meet certain 
requirements, including collectible insurance which limits the use or 
annual mileage of the collectible vehicle. We are not requiring 
existing older vehicles to be retrofit with emissions control 
technology.
    Comment. The fifth commenter states that the law establishing the 
new exemption for collectible vehicles is poorly crafted in that the 
requirements of the law, as written by the Arizona legislature, are 
both vague and do not have sufficient enforcement methods to insure 
that the net result falls within the assumptions that were made by the 
ADEQ to validate this exemption. Specifically, the commenter questions 
the estimate of the number of collectible vehicles used by ADEQ in 
estimating the emissions impact of the exemption and also questions the 
methods that will be relied upon to limit the exemption only to 
qualifying vehicles. Furthermore, the commenter requests additional 
requirements in the law to limit the possible abuse of the exemption.
    Response. As noted above, EPA's role in reviewing SIP submissions 
is to approve state choices, provided that they meet minimum criteria 
of the Clean Air Act and EPA's regulations. EPA is not responsible for 
drafting changes to state laws. Nonetheless, this comment raises 
questions about the validity of the assumptions underlying the 
emissions impact analysis and the enforcement methods that will be 
relied upon to limit the exemptions to qualifying vehicles.
    ADEQ estimates that collectible vehicles represent 0.4% to 0.5% of 
the total tested fleet of vehicles in the Tucson and Phoenix areas, 
respectively. ADEQ developed these estimates on the basis of a survey 
conducted by ADEQ in coordination with car clubs in Arizona and 
information received from two of the four major insurance companies 
specializing in selling collectible car insurance in Arizona, taking 
into account the number of such vehicles that are already exempt (i.e., 
pre-1967 model year vehicles) from emission testing requirements. See 
appendix 2b (``Technical Support Document, Evaluating Emissions Impacts 
of Exempting Collectible Vehicles from Vehicle Emissions Inspections'') 
of Appendix B (``Report on Potential Exemptions from Vehicle Emissions 
Testing for Motorcycles, Collectible Vehicles and Vehicles 25 Model 
Years Old and Older'') of the VEI SIP revision. We believe that ADEQ's 
methods provide a reasonable basis for estimating the number of 
vehicles that would be newly exempt as ``collectible vehicles'' under 
HB 2357 and the corresponding emissions impact from exemption of those 
vehicles from VEI emissions testing requirements.
    We also continue to believe that the compliance enforcement 
methods, including the collectible vehicle insurance and registration 
procedures, that will be relied upon to limit the exemption to 
qualifying vehicles are reasonably calculated to do so. See pages 4-5 
and appendix C (``Collectible Vehicle Insurance and Registration 
Procedures'') of the VEI SIP Revision and our discussion of the 
compliance enforcement issue in our proposed rule at 71 FR at 78118.

III. EPA's Final Action

    No comments were submitted that change our assessment of the VEI 
SIP revisions as set forth in our proposed rule. Therefore, pursuant to 
section 110(k)(3) of the CAA and for the reasons set forth in the 
proposed rule, EPA is approving the revisions to the Arizona SIP 
submitted by the State of Arizona on December 23, 2005 and October 3, 
2006 concerning the Arizona VEI programs implemented in the Phoenix and 
Tucson areas because we find that the revisions are consistent with the 
requirements of the CAA and EPA's regulations.
    Specifically, we are approving exemptions from emissions testing 
requirements for collectible vehicles in the Phoenix area and 
collectible vehicles and motorcycles in the Tucson area as set forth in 
the ``Arizona State Implementation Plan Revision, Basic and Enhanced 
Vehicle Emissions Inspection/Maintenance Programs'' (December 2005) and 
ARS Section 49-542 as amended in section 1 of Arizona House Bill 2357, 
47th Legislature, 1st Regular Session (2005) and approved by the 
Governor on April 13, 2005; and the updated performance standard 
evaluation for the Phoenix area and new contingency measures as set 
forth in the ``Supplement to Final Arizona State Implementation Plan 
Revision, Basic and Enhanced Vehicle Emissions Inspection/Maintenance 
Programs, December 2005'' (September 2006).

IV. Statutory and Executive Order Reviews

    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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply,

[[Page 15049]]

Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This action merely 
approves changes to state law as meeting Federal requirements and 
imposes no additional requirements 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 changes to 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 (Pub. L. 104-4).
    This rule also does not have a substantial direct effect on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (59 FR 22951, November 9, 2000), nor will it 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 changes to state law implementing a Federal 
requirement, 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 ``Protection of Children 
from Environmental Health and Safety Risks'' (62 FR 19885, April 23, 
1997), because it finalizes approval of a state rule implementing a 
Federal Standard.
    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. 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 May 29, 2007. 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, Intergovernmental relations, Nitrogen 
oxides, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 20, 2007.
Wayne Nastri,
Regional Administrator, Region 9.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations are 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(133) and (c)(134) 
to read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (133) The following statute and plan were submitted on December 23, 
2005 by the Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Revised Statutes.
    (1) Section 49-542 as amended in section 1 of the Arizona House 
Bill 2357, 47th Legislature, 1st Regular Session (2005) and approved by 
the Governor on April 13, 2005.
    (ii) Additional material.
    (A) Arizona Department of Environmental Quality.
    (1) Final Arizona State Implementation Plan Revision, Basic and 
Enhanced Vehicle Emissions Inspection/Maintenance Programs (December 
2005), adopted by the Arizona Department of Environmental Quality on 
December 23, 2005, excluding appendices.
    (134) The following plan was submitted on October 3, 2006 by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Department of Environmental Quality.
    (1) September 2006 Supplement to Final Arizona State Implementation 
Plan Revision, Basic and Enhanced Vehicle Emissions Inspection/
Maintenance Programs, December 2005, adopted by the Arizona Department 
of Environmental Quality on October 3, 2006, excluding appendices.

[FR Doc. E7-5558 Filed 3-29-07; 8:45 am]
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