[Federal Register Volume 64, Number 49 (Monday, March 15, 1999)]
[Rules and Regulations]
[Pages 12749-12751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6253]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY108-9904a; FRL-6307-8]


Approval and Promulgation of Implementation Plans; Kentucky; 
Approval of Revisions to Basic Motor Vehicle Inspection and Maintenance 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a state implementation plan (SIP) revision 
submitted on August 27, 1998, by the Commonwealth of Kentucky, through 
the Kentucky Natural Resources and Environmental Protection Cabinet. 
This revision modifies the implementation of a basic motor vehicle 
inspection and maintenance (I/M) program in Jefferson County, Kentucky, 
to require, beginning January 1, 2001, a check of the On Board 
Diagnostic (OBD) system of 1996 and newer cars and light duty trucks 
equipped with the system.

DATES: This final rule is effective May 14, 1999 without further 
notice, unless EPA receives adverse or critical comments by April 14, 
1999. If adverse comment is received EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments on this action should be addressed to Dale Aspy 
at the Environmental Protection Agency, Region 4 Air Planning Branch, 
61 Forsyth Street, SW, Atlanta, Georgia 30303. Copies of documents 
relative to this action are available for public inspection during 
normal business hours at the following locations. The interested 
persons wanting to examine these documents should make an appointment 
with the appropriate office at least 24 hours before the visiting day. 
Reference file KY108-9904. The Region 4 office may have additional 
background documents not available at the other locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303. Dale Aspy, (404) 562-9041.
Kentucky Natural Resources and Environmental Protection Cabinet, 
Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-
1403. (505) 573-3382.
Jefferson County Air Pollution Control District, 850 Barret Avenue, 
Louisville, Kentucky. (502) 574-6000.

FOR FURTHER INFORMATION CONTACT: Dale Aspy at 404/562-9041.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 6, 1996, the U.S. Environmental Protection Agency (EPA) 
promulgated a final rule that established the minimum requirements for 
inspecting vehicles equipped with OBD systems. Additionally, the OBD 
test program component was to begin January 1, 1998. An approved OBD 
program is required for state and local Inspection/Maintenance (I/M) 
programs by section 203(m)(3) of the Clean Air Act (CAA). Section 
182(a)(2)(B)(ii) of the CAA required a State Implementation Plan (SIP) 
submission by August 6, 1998, for I/M programs to implement an OBD 
system check. However, on May 4, 1998, EPA published a final rule that 
delayed until January 1, 2001, the date by which the OBD test component 
is required to begin. Although EPA delayed the OBD test component date 
by three years, the CAA requirement for submitting a SIP two years 
after promulgation of OBD requirements for vehicle manufacturers was 
not changed. Therefore, in the May 4, 1998, Federal Register preamble 
to the OBD regulation

[[Page 12750]]

revisions, EPA indicated it would accept a ``. . .  brief SIP amendment 
which commits to implementing EPA approved OBD checks, as outlined in 
the I/M OBD rule, by January 1, 2001.'' The Kentucky submission meets 
the EPA requirements.

II. EPA's Analysis of Changes to the Louisville, Kentucky, Basic I/
M Program

    EPA's review of the submitted revisions indicates that the 
Jefferson County I/M program is in accordance with the requirements of 
the Act. Since Kentucky's OBD testing requirement meets the criteria of 
the EPA OBD rule, EPA is approving the Kentucky SIP revision for OBD 
testing in the Jefferson County, Kentucky, basic I/M program.

III. Final Action

    EPA is approving this revision to the Kentucky SIP for a basic I/M 
program in Jefferson County. EPA is publishing this action without 
prior proposal because the Agency views this as a noncontroversial 
amendment and anticipates no adverse public comments. However, in the 
proposed rules section of this Federal Register publication, EPA is 
publishing a separate document that will serve as the proposal to 
approve the SIP revision should relevant adverse comments be filed. 
This rule will be effective May 14, 1999 without further notice unless 
the Agency receives relevant adverse comments by April 14, 1999.
    If EPA receives such comments, then EPA will publish a timely 
withdrawal of the final rule informing the public that the rule will 
not take effect. All public comments received will be discussed in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this rule. Only parties interested 
in commenting on this rule should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on May 14, 1999 and no further action will be taken on the 
proposed rule.

IV. Administrative Requirements

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 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
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 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. 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. 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 final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval 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).

F. Disclaimer Language Approving SIP Revisions in Audit Law States

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Kentucky's audit 
privilege and penalty immunity law, Kentucky KRS 224.01-040, or its 
impact upon any approved provision in the SIP, including the revision 
at issue here. The action taken

[[Page 12751]]

herein does not express or imply any viewpoint on the question of 
whether there are legal deficiencies in this or any other Clean Air Act 
program resulting from the effect of Kentucky's audit privilege and 
immunity law. A state audit privilege and immunity law can affect only 
state enforcement and cannot have any impact on federal enforcement 
authorities. EPA may at any time invoke its authority under the Clean 
Air Act, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a state audit privilege or immunity law.

G. 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 the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

H. 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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

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 May 14, 1999. 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, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: February 23, 1999.
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 S--Kentucky

    2. Section 52.920, is amended by adding paragraph (c)(93) to read 
as follows:


Sec. 52.920  Identification of plan.

* * * * *
    (c) * * *
    (93) Modifications to the existing basic I/M program in Jefferson 
County to implement a check of a vehicle's On-Board Diagnostic system, 
for vehicles of model 1996 and newer that are so equipped, submitted by 
the Commonwealth of Kentucky on August 27, 1998.
    (i) Incorporation by reference. Regulation 8.02, adopted on July 
15, 1998.
    (ii) Other material. None.
 * * * * *
[FR Doc. 99-6253 Filed 3-12-99; 8:45 am]
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