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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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 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: tax.wienke@epa.gov, 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 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.

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 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, 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

Part 52, chapter I, title 40 of the Code of Federal Regulations are 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 D—Arizona

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