ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2008-0705; FRL-____-_    ]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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.

DATE: Any comments must arrive by [Insert date 30 days from the date of
publication in the Federal Register].

ADDRESSES: Submit comments, identified by docket number
EPA-R09-OAR-2008-0705, by one of the following methods:

Federal eRulemaking Portal:   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov .  Follow the on-line instructions.

E-mail: kaplan.eleanor@epa.gov  GOTOBUTTON BM_3_  .

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   HYPERLINK
"http://www.regulations.gov"  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   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  or e-mail.   HYPERLINK "http://www.regulations.gov"
 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   HYPERLINK "http://www.regulations.gov" 
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,   HYPERLINK "mailto:kaplan.eleanor@epa.gov" 
kaplan.eleanor@epa.gov .

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 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. 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 (c), as submitted by NDEP on May 11, 2007.   

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).

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 (Public Law 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 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.

_September 15, 2008	     	________________________

Dated:					Laura Yoshii

Acting Regional Administrator,

Region IX.

  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.   

  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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