[Federal Register Volume 82, Number 53 (Tuesday, March 21, 2017)]
[Rules and Regulations]
[Pages 14461-14463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05376]



40 CFR Part 52

[EPA-R06-OAR-2011-0695; FRL-9957-41-Region 6]

Approval and Promulgation of Implementation Plans; New Mexico; 
Albuquerque/Bernalillo County; Inspection and Maintenance Program Error 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the 
Environmental Protection Agency (EPA) is taking direct final action to 
correct a previously approved diesel inspection and maintenance (I/M) 
program provision in Albuquerque/Bernalillo County's State 
Implementation Plan (SIP). This action is based on our determination 
that at the time EPA approved the diesel I/M Program the State did not 
have the legal authority to expand its program to require the testing 
of 1998 and newer diesel motor vehicles greater than 1,000 and less 
than 10,001 pounds.

DATES: This rule is effective on May 22, 2017 without further notice, 
unless the EPA receives relevant adverse comment by April 20, 2017. If 
the EPA receives such comment, the EPA will publish a timely withdrawal 
in the Federal Register informing the public that this rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2011-0695, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Mr. John Walser, 214-665-
7128, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. 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 at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. John Walser, 214-665-7128, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Mr. John Walser or Mr. Bill Deese at 214-

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

I. Background

A. Requirements for SIP Submittals and EPA Action on SIP Submittals

    Congress enacted the National Ambient Air Quality Standards (NAAQS) 
and SIP requirements in the 1970 CAA Amendments. CAA section 110(a)(1) 
requires that states adopt and submit to EPA for approval SIPs that 
implement the NAAQS. CAA section 110(a)(2) contains a detailed list of 
requirements that all SIPs must include to be approvable by EPA. Of 
particular relevance to this action is subparagraph (E)(i) of CAA 
section 110(a)(2) which provides that SIPs must provide ``necessary 
assurances that the state . . . will have adequate . . . authority 
under State (and as appropriate, local) law to carry out such [an] 
implementation plan.'' As applicable to inspection and maintenance 
programs, this provision means that EPA may approve the submitted I/M 
provisions as part of the SIP only if EPA is satisfied that the state 
will have adequate legal authority under state law to implement the 

B. Authority for EPA To Revise Previous Action on SIPs

    EPA has authority to revise its previous actions taken on SIP 
submittals. Two mechanisms are available to EPA: The error correction 
mechanism provided under CAA section 110(k)(6), and EPA's general 
administrative authority to reconsider its own actions under CAA 
sections 110 and 301(a), in light of case law. CAA section 110(k)(6) 
provides as follows:

    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 public.

    Therefore, the Administrator has the authority to ``determine[ ]'' 
when a SIP approval was ``in error,'' and may then revise the SIP 
approval ``as appropriate,'' in the same manner as the approval, and 
without requiring any further submission from the state.\1\

    \1\ Please see the ``Legal Support'' document in the docket for 
a more in depth explanations of the EPA's authority to revise 
previous SIP actions.

C. Albuquerque/Bernalillo County Submission

    On August 1, 2012, EPA proposed to approve revisions to the SIP for 
Air Quality submitted by the City of Albuquerque/Bernalillo County (the 
County) area on July 28, 2011 pursuant to the Clean Air Act. (77 FR 
45530). These revisions included provisions that expanded the County's 
I/M program to include 1998 and newer diesel motor vehicles greater 
than 1,000 and less than 10,001 pounds. The County submitted a SIP 
Completeness Checklist pursuant to 40 CFR 51, Appendix V in which it 
certified that it had the necessary legal authority to include 
compression ignition powered (diesel) engine testing in its I/M 
program. We received no comments on this proposal and finalized our 
approval on October 31, 2012. (77 FR 65821).

[[Page 14462]]

II. EPA's Analysis

    Federal law does not require, nor did it require at the time the 
SIP revision was submitted, a diesel I/M program. However, under the 
CAA an agency is free to submit for approval as part of the SIP 
regulations that are more stringent than federal requirements should it 
choose to. On August 19, 2016, we received a letter from the 
Albuquerque Bernalillo County Air Quality Control Board indicating that 
the County did not have the necessary legal authority to require 
testing of diesel engines at the time the SIP was submitted to EPA. The 
County requested that EPA perform an error correction under CAA section 
110(k)(6).\2\ New Mexico statute states that the County may only 
require testing for vehicles powered by spark ignited combustion 
engines.\3\ Diesel engines are not spark ignited but instead rely on 
compression ignition. Further, the State's law provides that the County 
cannot enact any rule that is more stringent than what is federally 
required; every rule enacted by the County must be at least as 
stringent, but no more stringent than what is federally required.\4\

    \2\ See, ``Request for administrative error correction under 40 
U.S.C. 7601(k)(6) to provisions of the New Mexico State 
Implementation Plan regarding emissions testing of certain diesel 
fuel motor vehicles'' dated August 19, 2016.
    \3\ ``Any local authority that is located within a 
transportation-related pollutant nonattainment area or maintenance 
area may provide for a vehicle emission inspection and maintenance 
program for vehicles under twenty-six thousand pounds gross vehicle 
weight powered by a spark-ignited internal combustion engine, which 
program shall be no more stringent than that required under the 
federal act or under federal air quality standards.'' NMSA 74-2-4(E)
    \4\ NMSA 74-2-5(C).

    As explained above, EPA has the authority to correct approvals of 
SIPs should we find that the approval was made in error. Since the 
County did not have the necessary authority to require testing of 
diesel engines at the time the SIP revision was submitted, our approval 
of this diesel I/M provision was made in error. As such, we are taking 
final action to remove this provision from the County's SIP.

III. What action is EPA taking?

    EPA is removing the following provisions related to testing diesel 
vehicles from the County's SIP: NMAC,, and the reference to compression ignition engines 
in, as adopted by the Air Board on May 11, 2011.

IV. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, we are finalizing the incorporation by reference of the 
revisions to the New Mexico regulations as described in the Final 
Action section above. We have made, and will continue to make, these 
documents generally available electronically through 
www.regulations.gov and/or in hard copy at the EPA Region 6 office.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a ``significant regulatory action'' and 
was therefore not submitted to the Office of Management and Budget for 

B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden 
under the PRA because it does not contain any information collection 

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely approves or disapproves a SIP submission as not meeting 
the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it merely approves or disapproves a SIP submission as not 
meeting the CAA.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. This action merely approves or disapproves a 
SIP submission as not meeting the CAA requirements.
    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 action 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. 
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 22, 2017. Filing a

[[Page 14463]]

petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Samuel Coleman was designated the Acting Regional Administrator on 
March 13, 2017, through the order of succession outlined in Regional 
Order R6-1110.1, a copy of which is included in the docket for this 

    Dated: March 13, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:


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

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

Subpart GG--New Mexico

2. In Sec.  52.1620(c), the second table titled ``EPA Approved 
Albuquerque/Bernalillo County, NM regulations'' is amended by revising 
the entry for ``Part 100 (20.11.100 NMAC)'' to read as follows:

Sec.  52.1620   Identification of plan.

* * * * *
    (c) * * *

                           EPA-Approved Albuquerque/Bernalillo County, NM Regulations
          State citation               Title/subject      effective     EPA approval date        Explanation
                                                  * * * * * * *
Part 100 (20.11.100 NMAC)........  Motor Vehicle          08/16/2016  03/21/2017 [Insert,
                                    Inspection--Decentr                Federal Register
                                    alized.                            Citation].            and
                                                                                             are NOT part of the
                                                  * * * * * * *

* * * * *
[FR Doc. 2017-05376 Filed 3-20-17; 8:45 am]