03-855. Approval and Promulgation of Air Quality Implementation Plans; Maryland; Motor Vehicle Inspection and Maintenance Program-Request for Delay in the Incorporation of On-Board Diagnostics Testing

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Maryland State Implementation Plan (SIP). Maryland has requested a six-month extension of the Federal deadline to incorporate electronic checks to of On-board Diagnostic (OBD) computer systems of 1996-and-newer vehicles into Maryland's motor vehicle emissions inspection and maintenance (I/M) program. EPA's rules governing I/M programs required states to add OBD checks to their I/M programs by January 1, 2002. However, EPA's same rule provides states the option to submit a request for delay of this deadline by up to one additional year, provided each state making such a request for delay demonstrates to EPA that such a delay was necessary. Maryland has requested a six-month delay provided for by EPA's regulations (i.e., until July 1, 2002) in commencing OBD checks as part of its I/M program. EPA has reviewed Maryland's request, and is proposing through this action to grant Maryland's request for a six-month extension of the OBD testing deadline in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on March 17, 2003 without further notice, unless EPA receives adverse written comment by February 18, 2003. If EPA receives such comments, it 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:

Written comments should be mailed to Robert Kramer, Acting Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of these relevant documents are also available from the Maryland Department of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT:

Janet C. Kremer, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On April 5, 2001, EPA's revised I/M program requirements rule was published in the Federal Register (Amendments to Vehicle Inspection and Maintenance Program Requirements Incorporating the On-board Diagnostics Check; Final Rule (66 FR 18156)). The revised I/M requirements rule requires that electronic checks of the On-board Diagnostics system of applicable 1996-and-newer motor vehicles be conducted as part of states' motor vehicle I/M programs. This revised I/M requirements rule applies only to those areas required to implement an I/M program under the Clean Air Act of 1990. This rule establishes a deadline of January 1, 2002 for states to begin performing OBD checks on 1996-and-newer model OBD-equipped vehicles, and to require repairs to be performed on those vehicles with malfunctions identified by the OBD check. However, the revised I/M rule also provides several options to states to delay implementation of OBD testing, under certain circumstances, beyond the prescribed January 1, 2002 deadline. One such option provides for a one-time, 12-month extension of the deadline for states to begin conducting mandatory OBD checks (to as late as January 1, 2003) provided the state making the request can show just cause to EPA for a delay and that the revised implementation date represents “the best the state can reasonably do”.

EPA's final rule identifies factors that may serve as a possible justification for states considering making a request to EPA to delay implementation of OBD I/M program checks beyond the January 2002 deadline. Potential factors justifying such a delay request that are listed in EPA's rule include: contractual impediments, hardware or software deficiencies, data management software deficiencies, the need for additional training for the testing and repair industries, and the need for public education or outreach.

Maryland has submitted a SIP revision to formally request an extension of the OBD I/M test deadline, per EPA's I/M requirement rule. Maryland's SIP revision lists many of the same factors that are listed in EPA's I/M rule in order to justify the State's request for extension of the OBD testing deadline.

Summary of SIP Revision

On July 9, 2002, Maryland submitted a formal revision to its SIP, which constitutes a request to delay the addition of on-board diagnostic system checks of 1996-and-newer vehicles to Maryland's adopted and SIP-approved I/M program.

Maryland's SIP revision to request delay in adding OBD testing to it I/M program list several factors that effect the State's ability to conduct OBD testing at this time. Maryland's justification for its request of a 6-month delay includes the following factors:

(1) Hardware and software issues pertaining to the transition to new hardware and testing equipment, installation of new communications network, and construction of a new data management system. Also, the time to develop a new formal acceptance testing procedures for equipment and develop quality assurance specifications and procedures for the OBD test equipment that will be incorporated into the State's ongoing assurance audit inspections of the Vehicle Emissions Inspection Program (VEIP) stations,

(2) evaluation of various programmatic options, and the design of an OBD program that will be compatible with the current VEIP program design,

(3) the need to train the contractor inspection, operational, and management personnel, so that all of these personnel have a thorough knowledge of all aspects of the final OBD program design and operation,

(4) the need for additional education and training of the vehicle repair community in the new OBD test procedures as well as the repair of OBD-failed vehicles,

(5) the need for additional outreach and public education in order to increase public acceptance of OBD testing.

II. Final Action

EPA is granting the state of Maryland's request for a six-month extension of the OBD testing deadline, per the guidelines established by EPA in its amended Vehicle Inspection and Maintenance Program Requirements Rule, published in the April 5, 2001 edition of the Federal Register (66 FR 18156). Maryland has adequately justified a six-month extension of the January 1, 2002 Federal OBD I/M testing deadline. EPA therefore proposes to grant a six-month extension of the deadline to commence OBD testing as part of the Maryland I/M program to July 1, 2002. EPA has determined that this delayed implementation schedule represents the timeliest implementation schedule that Maryland can perform, and is “the best the state can reasonably do”.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment as EPA's I/M program requirements regulations allow the Administrator to grant such an extension request if a state provides a justification that meets the factors set forth in EPA's I/M regulations (66 FR 18156).

However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 17, 2003 without further notice unless EPA receives adverse comment by February 18, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Administrative Requirements

A. General Requirements

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 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 pre-existing requirements under 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 tribal implications because it will 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 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, 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 Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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.).

B. 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).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action to extend the deadline for incorporation of On-board Diagnostics checks to the Maryland I/M program by six-months must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2003. 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
• Nitrogen dioxide
• Ozone
• Volatile organic compounds

Dated: December 23, 2002.

Judith M. Katz,

Acting Regional Administrator, Region III.

40 CFR part 52 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 V—Maryland

2. Section 52.1070 is amended by adding paragraph (c)(179) to read as follows:

§ 52.1070

Identification of plan.

* * * * *

(c) * * *

(179) Revisions to the Code of Maryland Administrative Regulation (COMAR) 11.14.08 pertaining to the request for delay in the incorporation of On-board Diagnostics testing in the state's Vehicle Inspection and Maintenance Program submitted on July 9, 2002 by the Maryland Department of the Environment:

(i) Incorporation by reference.

(A) Letter of July 9, 2002 from the Maryland Department of the Environment transmitting amendments to Regulations .03, .06, .09, .12, and .16 under COMAR 11.14.08, Vehicle Emissions Inspection Program.

(B) Additions and revisions to COMAR 11.14.08.03, .06, .09, .12, and .16, effective June 10, 2002:

(1) Added COMAR 11.14.08.03E.

(2) Revised COMAR 11.14.08.06A(3)(r), .09F, .12C(1) through (3) inclusive, and .16D.

(ii) Additional Material.—Remainder of the State submittal(s) pertaining to the revisions listed in paragraph (c)(179)(i) of this section.

3. Section 52.1078 is amended by designating the existing text as paragraph (a) and adding paragraph (b) to read as follows:

§ 52.1078

Extensions.

* * * * *

(b) The Administrator hereby extends by six-months the deadline by which Maryland must incorporate mandatory testing of second generation On-board Diagnostics (OBD-II) equipped motor vehicles as part of its inspection and maintenance (I/M) program. As a result of this deadline extension, Maryland must now incorporate mandatory OBD-II checks (for 1996-and-newer OBD-II equipped vehicles) as an element of the Commonwealth's I/M program in all enhanced I/M program areas by July 1, 2002.