[Federal Register Volume 73, Number 187 (Thursday, September 25, 2008)]
[Proposed Rules]
[Pages 55466-55469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22557]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0705; FRL-8720-5]


Approval and Promulgation of Implementation Plans; Nevada; 
Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Under the Clean Air Act, EPA is proposing to approve certain 
revisions, and to disapprove certain other revisions, of the Nevada 
State Implementation Plan submitted by the Nevada Division of 
Environmental Protection. These revisions relate to the application of 
the State's vehicle inspection and maintenance program to vehicles 
operated on Federal installations. EPA is also proposing to correct 
certain plan revisions related to this subject that EPA previously 
approved in error. The intended effect is to ensure that vehicles 
operated on Federal installations are subject only to those 
requirements of the State's vehicle inspection and maintenance program 
that apply in the same manner and to the same extent to nongovernmental 
entities.

DATES: Any comments must arrive by October 27, 2008.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-0705, by one of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the on-line instructions.
     E-mail: [email protected].
     Mail or deliver: Eleanor Kaplan (AIR-2), U.S. 
Environmental Protection Agency Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-
4147, [email protected].

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

Table of Contents

I. Background
II. The State's SIP Revision Submittal
    A. What revisions did the State submit?
    B. What is our evaluation of the revisions?
III. Correction of Previously-Approved Provisions
    A. What provisions did we previously approve?
    B. What is our evaluation of the approved provisions?
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews

I. Background

    On January 7, 2008 (73 FR 1175), EPA proposed, under the Clean Air 
Act (CAA or ``Act''), to approve certain submittals by the Nevada 
Division of Environmental Protection (NDEP) of revisions to the Nevada 
state implementation plan (SIP). The submittals that were the subject 
of our January 7, 2008 proposed rule primarily relate to attainment and 
maintenance of the carbon monoxide (CO) national ambient air quality 
standard (NAAQS) in the Truckee Meadows nonattainment area. In our 
January 7, 2008 proposed rule, we also proposed to approve the State's 
submittal of an update to the regulatory element of the State's mobile 
source SIP, including statutory provisions and rules related to the 
State's vehicle inspection and maintenance (I/M) programs administered 
in Truckee Meadows (located within Washoe County) and Las Vegas Valley 
and Boulder City (located within Clark County).
    As part of our January 7, 2008 proposed rule, we proposed to 
approve all of the State's vehicle I/M rules with the exception of a 
particular subsection (subsection (2)) of a single rule, Nevada 
Administrative Code (NAC) section 445B.595 (``Inspections of vehicles 
owned by State or political subdivisions or operated on federal 
installations'') (``NAC 445B.595(2)''), for which we proposed neither 
approval nor disapproval. We explained our ``no action'' proposal for 
NAC 445B.595(2) as follows:

    The Federal I/M rule requires that vehicles operated on Federal 
installations located within an I/M program area be tested 
regardless of whether the vehicles are registered in the state or 
local I/M area. See 40 CFR 51.356(a)(4). However, we are not 
requiring states to implement 40 CFR 51.356(a)(4) at this time. The 
Department of Justice has recommended to EPA that this Federal 
regulation be revised since it appears to grant states authority to 
regulate Federal installations in circumstances where the Federal 
government has not waived sovereign immunity. It would not be 
appropriate to require compliance with this regulation if it is not 
constitutionally authorized. EPA will be revising this provision in 
the future and will review state I/M SIPs with respect to this issue 
when this

[[Page 55467]]

new rule is final. Therefore, for these reasons, EPA is neither 
approving nor disapproving the specific requirements which apply to 
Federal facilities at this time. Specifically, we are taking no 
action on submitted rule NAC 445B.595(2), which extends the State's 
I/M requirements to motor vehicles operated on Federal installations 
located within I/M areas.

See 73 FR 1175, at 1182. See also 73 FR 1175, at 1176 and 1194 for 
summaries of our proposed action in this regard. The recommendation by 
the Department of Justice (DOJ) referred to in the above excerpt was 
made in a letter from Lois J. Schiffer, Assistant Attorney General, DOJ 
Environment and Natural Resources Division, to Scott Fulton, Acting 
General Counsel, EPA, dated July 29, 1998.
    In our January 7, 2008 proposed rule, we also proposed, under CAA 
section 110(k)(6), to rescind our previous approval of an earlier 
codification of NAC 445B.595(2), once again, based on sovereign 
immunity concerns. We had approved the earlier codification of NAC 
445B.595(2) in connection with our approval of the State's vehicle I/M 
program as administered in Las Vegas Valley and Boulder City. See 69 FR 
56351, at 56354 (September 21, 2004).
    Our January 7, 2008 proposed rule provided for a 30-day public 
comment period, and we received comments related to our proposal from 
NDEP concerned about our proposed error correction related to NAC 
445B.595(2). On July 3, 2008, we took final action on all aspects of 
the January 7, 2008 proposed rule with the exception of our proposed 
action on NAC 445B.595(2) for which we agreed to reconsider action in a 
future proposed rule. See 73 FR 38124 (July 3, 2008). We have now 
reconsidered the issue of sovereign immunity in relation to the State's 
vehicle I/M program and propose, in today's action, to approve 
paragraphs (a), (b) and (c) of NAC 445B.595(2) (``NAC 445B.595(2)(a), 
(b), and (c)''), to disapprove paragraph (d) of NAC 445B.595(2) (``NAC 
445B.595(2)(d)''), to rescind our previous approval of NAC 
445B.595(2)(d) and our previous approvals of another State vehicle I/M 
requirement, NAC 445B.461(3)(d).

II. The State's SIP Revision Submittal

A. What revisions did the State submit?

    On May 11, 2007, NDEP submitted, among other provisions, rules 
implementing the State's vehicle I/M program in Truckee Meadows and Las 
Vegas Valley/Boulder City. Among the rules are NAC 445B.461 
(``Compliance by Federal Government, state agencies and political 
subdivisions'') and NAC 445B.595 (``Inspections of vehicles owned by 
State or political subdivisions or operated on federal 
installations''). NAC 445B.461 provides in relevant part:

    1. A license may be issued to the Federal Government * * * to 
inspect motor vehicles * * * for the purpose of compliance with NAC 
445B.400 to 445B.735, inclusive.
    2. * * *.
    3. The holder of a license issued pursuant to subsection 1 is 
exempt from the requirements set forth in the following sections for 
the limited purposes indicated: (a) Bond, NAC 445B.465; (b) Evidence 
of compliance, NAC 445B.583 to 445B.586, inclusive; (c) Sign, NAC 
445B.469; and (d) Use of waiver, NAC 445B.590.

NAC 445B.595 provides in relevant part:

    1. * * *.
    2. Motor vehicles operated on federal installations located 
within an area requiring a program for the inspection of exhaust 
emissions must be inspected and certified annually. The provisions 
of this subsection:
    (a) Apply to all motor vehicles which are owned, leased or 
operated by an employee of, or military personnel stationed at, a 
federal installation;
    (b) Apply to all motor vehicles which are owned, leased or 
operated by any agency of the Federal Government on a federal 
installation;
    (c) Do not apply to tactical military vehicles operated on a 
federal installation; and
    (d) Do not apply to motor vehicles which are owned, leased or 
operated on a federal installation by visiting federal employees or 
military personnel when the visit does not exceed 60 days within any 
1 calendar year. A federal installation shall annually submit to the 
Department evidence showing that it has complied with the provisions 
of this paragraph, in a form prescribed by the Department.

    We approved NAC 445B.461 in 2004 in connection with our approval of 
the State's I/M program in Las Vegas Valley and Boulder City (see 69 FR 
56351, at 56354 (September 21, 2004)), and again on July 3, 2008 in 
connection with our final approval of the State's update (submitted on 
May 11, 2007) to the regulatory element of the State's mobile source 
SIP, including the rules for the State's vehicle I/M program in Truckee 
Meadows and Las Vegas Valley/Boulder City. We also approved NAC 
445B.595 in connection with our approval of the State's I/M program in 
Las Vegas Valley and Boulder City but, as noted above, proposed to 
rescind our previous approval of NAC 445B.595(2) in our January 7, 2008 
proposed rule, and have as yet taken no action on NAC 445B.595(2) as 
submitted to us on May 11, 2007. The versions of NAC 445B.461 and NAC 
445B.595 approved by us in 2004 and those submitted to us on May 11, 
2007 are identical.

B. What is our evaluation of the revisions?

    CAA section 118(a) requires that each agency and employee of the 
Federal government comply with all Federal, State, interstate, and 
local requirements, administrative authority, and process and sanctions 
respecting the control and abatement of air pollution in the same 
manner, and to the same extent as any nongovernmental entity. In our 
evaluation of the State's I/M program as it relates to Federal 
installations, we also rely upon EPA's guidance document, ``Interim 
Guidance for Federal Facility Compliance with Clean Air Act Sections 
118(c) and 118(d) and Applicable Provisions of State Vehicle Inspection 
and Maintenance Programs,'' Draft, December 1999.
    Generally, the State of Nevada has made the State's mobile source 
rules, including many such rules related to the vehicle I/M program, 
applicable to Federal installations by including the Federal Government 
in the State's rule defining ``person'' for the purposes of the State's 
mobile source regulations. See NAC 445B.443.\1\ With respect to 
specific testing, standards, and certification requirements, the State 
has made the vehicle I/M program applicable to the Federal Government 
through adoption of NAC 445B.595(2) (including paragraphs (a) through 
(d)), which is set forth above. Through NAC 445B.595(2), the same types 
of emission tests and the same emissions standards apply to the motor 
vehicles owned by the Federal Government as apply to motor vehicles 
owned by nongovernmental entities. Thus, with the exception of the two 
specific provisions discussed below, we find that the State's I/M 
program complies with CAA section 118(a) and must be complied with by 
Federal installations and employees. We therefore propose to approve 
NAC 4454B.595(2)(a), (b), and

[[Page 55468]]

(c), as submitted by NDEP on May 11, 2007.
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    \1\ Under NAC 445B.443, ``Person'' includes the Federal 
Government, the State of Nevada, or any of its political 
subdivisions and any other administrative agency, public or quasi-
public corporation, or other legal entity. NDEP and the Nevada 
Department of Motor Vehicles (DMV) interpret NAC 445B.443 in light 
of the ``basic'' definition of the term ``person'' as codified at 
NRS 0.039: ``Except as otherwise expressly provided in a particular 
statute or required by the context, ``person'' means a natural 
person, any form of business or social organization and any other 
nongovernmental legal entity including, but not limited to, a 
corporation, partnership, association, trust or unincorporated 
organization. The term does not include a government, governmental 
agency or political subdivision of a government.'' EPA approved NRS 
0.039 into the Nevada SIP in 2006. See 71 FR 51766 (August 31, 
2006). To clarify that NAC 445B.443 builds upon the ``basic'' 
definition of person, we understand that NDEP and Nevada DMV intend 
to amend NAC 445B.443 to include a specific reference to NRS 0.039.
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    Under the State's vehicle I/M program, there are only two 
significant requirements that apply to Federal installations and 
employees that do not also apply in the same manner, and to the same 
extent to nongovernmental entities. These requirements are found in NAC 
445B.595(2)(d) and NAC 445B.461(3)(d). NAC 445B.595(2)(d) requires I/M 
testing and certification for non-resident Federal employees whose 
visits to Federal installations in I/M areas exceed 60 days. No such 
requirement under the State's vehicle I/M program applies to 
nonresident visitors who are not Federal employees. Likewise, NAC 
445B.461(3)(d) disqualifies the Federal Government from eligibility for 
a waiver that nongovernmental entities, under the same circumstances, 
are eligible. Waivers are generally allowed under the I/M program for 
vehicles that cannot pass the emissions test but for which qualifying 
repairs costing over certain thresholds have been made. Both provisions 
discriminate against Federal installations or employees relative to the 
requirements for nongovernmental entities and thus are inconsistent 
with the limits on the waiver of sovereign immunity established in CAA 
section 118(a).
    Therefore, we propose to approve NDEP's submittal on May 11, 2007 
of NAC 445B.595(2)(a), (b), and (c) but to disapprove paragraph (d) of 
the same subsection. We recently approved NDEP's submittal on May 11, 
2007 of NAC 445B.461 and address NAC 445B.461(3)(d) in the following 
section of this document.

III. Correction of Previously Approved Provisions

A. What provisions did we previously approve?

    We approved NAC 445B.461, including NAC 445B.461(3)(d), and NAC 
445B.595, including NAC 445B.595(2)(d), in connection with our 2004 
approval of the State's vehicle I/M program in Las Vegas Valley and 
Boulder City. Moreover, we approved NAC 445B.461 again in our July 3, 
2008 final rule.

B. What is our evaluation of the approved provisions?

    Section 110(k)(6) of the Clean Air Act, as amended in 1990, 
provides, ``Whenever the Administrator determines that the 
Administrator's action approving, disapproving, or promulgating any 
plan or plan revision (or part thereof), area designation, 
redesignation, classification or reclassification was in error, the 
Administrator may in the same manner as the approval, disapproval, or 
promulgation revise such action as appropriate without requiring any 
further submission from the State. Such determination and the basis 
thereof shall be provided to the State and the public.''
    We interpret this provision to authorize the Agency to make 
corrections to a promulgated regulation when it is shown to our 
satisfaction that (1) we clearly erred in failing to consider or in 
inappropriately considering information made available to EPA at the 
time of the promulgation, or the information made available at the time 
of promulgation is subsequently demonstrated to have been clearly 
inadequate, and (2) other information persuasively supports a change in 
the regulation. See 57 FR 56762, at 56763 (November 30, 1992).
    In this instance, we have found clear error in our 2004 approval of 
NAC 445B.461(3)(d) and NAC 445B.595(2)(d), and our subsequent 2008 
approval of NAC 445B.461(3)(d), as a part of the Nevada SIP because at 
the time of our 2004 and 2008 actions such discriminatory provisions 
were not authorized under CAA section 118(a). Moreover, since such 
provisions remain unauthorized under CAA section 118(a), we believe 
that an error correction action under CAA section 110(k)(6) under these 
circumstances is appropriate. Therefore, we propose to rescind our 
previous approvals of NAC 445B.461(3)(d) and NAC 445B.595(2)(d) since 
they would otherwise set forth additional requirements under the I/M 
program for Federal installations and employees that do not apply to 
nongovernmental entities and thus would be inconsistent with the limits 
of sovereign immunity established in CAA section 118(a).\2\
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    \2\ We have discussed this issue with NDEP and Nevada DMV, and 
on April 30, 2008, NDEP submitted a letter to EPA expressing its 
agreement that the subject provisions are not consistent with CAA 
section 118(a) and its support for EPA's proposal to remove the 
provisions from the Nevada SIP. See letter from Michael Elges, 
Chief, NDEP Bureau of Air Quality Planning, to Jeff Wehling, Office 
of Regional Counsel, EPA Region IX, dated April 30, 2008.
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IV. Public Comment and Final Action

    Under section 110(k)(3) of the Clean Air Act, we propose to approve 
NDEP's submittal on May 11, 2007 of NAC 445B.595(2)(a), (b), and (c) as 
consistent with all applicable CAA requirements but to disapprove NAC 
445B.595(2)(d) as inconsistent with the limits on sovereign immunity 
established in CAA section 118(a). In addition, under CAA section 
110(k)(6), we propose to rescind our previous approvals of NAC 
445B.461(3)(d) and 445B.595(2)(d) since they would otherwise set forth 
additional requirements under the I/M program for Federal installations 
and employees that do not apply to nongovernmental entities and thus 
would be inconsistent with CAA section 118(a).
    EPA is soliciting public comments on the issues discussed in this 
document and will accept comments for the next 30 days. These comments 
will be considered before taking final action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would

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be inconsistent with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: September 15, 2008.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E8-22557 Filed 9-24-08; 8:45 am]
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