[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19910-19913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9460]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-84-1-7341a; FRL-6324-2]
Approval and Promulgation of Air Quality State Implementation
Plans (SIP); Texas: Motor Vehicle Inspection and Maintenance (I/M)
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves three revisions to the I/M SIP submitted
by the State, thereby removing the conditions for final approval. The
program was initially given conditional interim approval by the EPA on
July 11, 1997 (62 FR 37138). The action is being taken under section
348 of the National Highway System Designation Act of 1995 (NHSDA) and
section 110 of the Clean Air Act (Act). The EPA is removing the
conditions from the interim approval because the State's SIP revisions
correct the major conditions identified in the July 11, 1997,
conditional interim approval action. In today's Federal Register
action, EPA is
[[Page 19911]]
finding that the State has obtained the legislative authority needed to
meet the major conditions contained in EPA's July 11, 1997 action.
Today's action also approves into the SIP the definition of ``primarily
operated,'' the State's commitment to implement On-Board Diagnostic
testing, and removes the requirement for Test-on-Resale from the SIP.
DATES: This direct final rule is effective on June 22, 1999, without
further notice, unless the EPA receives adverse comment by May 24,
1999. If adverse comment is received, the 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: Written comments on this action should be addressed to Mr.
Thomas H. Diggs, Chief, Air Planning Section, at the EPA Regional
Office listed below. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
following locations. Persons interested in examining these documents
should make an appointment with the appropriate office at least 24
hours before the visiting day. Environmental Protection Agency, Region
6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas,
Texas 75202-2733. Texas Natural Resource Conservation Commission, 12100
Park 35 Circle, Austin, Texas 78711-3087.
FOR FURTHER INFORMATION CONTACT: Sandra Rennie, Air Planning Section
(6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733,
telephone (214) 665-7214.
SUPPLEMENTARY INFORMATION:
I. Background
What Are the Previous Actions Related to This Action?
On October 3, 1996 (61 FR 51651), EPA published a Notice of
Proposed Rule Making (NPR) proposing conditional interim approval of
Texas'
I/M program that was submitted to satisfy the applicable requirements
of both the Act and the NHSDA. The formal SIP revision was submitted by
Texas on March 14, 1996. After the NPR was published, EPA received
comments requesting an extension of the comment period for 60 days
which was granted on November 18, 1996 (61 FR 58671).
On July 11, 1997, (62 FR 37138), EPA finalized its conditional
interim approval action and responded to comments made on the action.
The Federal Register Notice stated that EPA was conditionally approving
the Texas I/M program as a revision to the Texas SIP, based upon three
major conditions to be remedied within twelve months of final interim
approval. The State had made a commitment to remedy these conditions
and to support the additional needed legislation to be carried out in
Texas's 75th Legislative Session.
What Are the Conditions That Need To Be Met for the EPA To Grant Final
Interim Approval?
Texas was required to obtain additional legal authority needed to
implement its program. The specific authority needed was outlined in
EPA's NPR (61 FR 51651) and was identified in a February 27, 1996,
Governor's Executive Order that was submitted as part of the Texas I/M
SIP. The major conditions are the legal authority identified in the
Executive Order that includes: (1) The denial of re-registration of
vehicles that have not complied with I/M program requirements, (2) the
establishment of a class C misdemeanor penalty for operating a grossly
polluting vehicle in a nonattainment area (i.e., enforcement of remote
sensing), and (3) the requirement for an inspection within 60 days of
resale and prior to transfer of title to nonfamily member consumers in
Dallas, Tarrant, or Harris counties.
The EPA also was aware that the State of Texas had expressed plans
to remove the ``test-on-resale'' provisions from their I/M plan. In the
FRN, EPA stated that we would not require the State to obtain authority
for and implement the test-on-resale provisions of the current State
plan if the State submitted a SIP revision removing it from the SIP,
since the test-on-resale provision was not required by the Act or the
Federal I/M rule.
What Else Will Be Needed for EPA To Grant a Final Full Approval?
The final conditional interim approval also identified further
requirements for permanent I/M SIP approval, that are not being
considered in this action. In addition to complying with all the major
conditions of its commitment to EPA that is being acted on in this NPR,
the State needs to provide EPA with the following:
(1) A program evaluation to confirm that the appropriate amount of
program credit was claimed by the State and achieved with the interim
program.
(2) Final Texas Department of Public Safety program regulations.
(3) Evidence that the Texas I/M program will meet all of the
requirements of EPA's I/M rule, including those de minimus deficiencies
identified in the October 3, 1996, proposal (61 FR 51651) as minor for
purposes of interim approval.
(4) Evidence that the remote sensing program is effective in
identifying and obtaining repairs on vehicles with high levels of
emissions, or expand the Texas I/M core program area to include the
entire urbanized area for both Dallas/Fort Worth and Houston.
II. EPA Analysis of Texas' Submittals
A. May 29, 1997
The revision included a deletion of the test-on-resale element to
the SIP, the Memorandum of Understanding (MOU) between the Texas
Natural Resource Conservation Commission (TNRCC) and Texas Department
of Public Safety, and revision to the definition of ``primarily
operated'' in the Texas I/M rules. The EPA has reviewed the State's
submittal and finds it acceptable for approval.
Test-on-Resale
The removal of the test-on-resale element from the SIP fulfills one
of the three major conditions required for SIP approval.
Memorandum of Understanding
The MOU outlines and specifies the respective responsibilities
between the TNRCC and the Texas Department of Public Safety. It
fulfills the Federal I/M rule requirement for SIP submissions contained
in 40 CFR 51.372(a)(7).
Definition of ``Primarily Operated''
The State also revised its definition of primarily operated to
require compliance of vehicles that are operated 60 calendar days in
the nonattainment area, instead of 60 continuous days. The revision
will result in a strengthening of the State I/M plan.
B. June 23, 1998
In this revision to the I/M SIP, the State commits to implementing
On-board Diagnostic testing beginning on January 1, 2001. This revision
was required under section 51.358 of the Federal I/M regulation.
C. December 22, 1998
During the 75th Texas legislative session, the State obtained the
authority to implement a program for denial of re-registration of
vehicles that have not complied with I/M program requirements, and the
authority to establish a class C misdemeanor penalty for operating a
grossly polluting vehicle in a nonattainment area (i.e., enforcement of
remote sensing). Senate Bill 1856, signed by the Governor, and
effective on June 19, 1997, revised section 382 of the Texas Health and
Safety Code, and sections 502 and 548
[[Page 19912]]
of the Texas Transportation Code to correct legislative deficiencies
identified in the July 11, 1997, conditional interim approval. A
certified copy of the legislation was submitted to EPA under a letter
from the Governor dated December 22, 1998.
III. Discussion of Rulemaking Action
The EPA review of this material indicates that these supplemental
SIP revisions, with supporting documentation, meet the minimum
requirements of the Act, NHSDA, and Federal I/M regulations. Based upon
the discussion contained in the previous analysis section, EPA
concludes the State's submittals satisfy the conditions established in
the July 11, 1997 conditional interim approval. Therefore, EPA is
granting final interim approval for the Texas I/M program.
Because EPA views the approval of these SIP revisions as non-
controversial, we are taking direct final action to approve these
revisions to the I/M SIP.
IV. Explanation of the Interim Approval
In the July 11, 1997, notice the 18-month interim approval was set
to lapse on February 11, 1999. Prior to that date, Texas submitted a
program effectiveness demonstration. The EPA is reviewing that
submittal and will take action in the near future.
V. Further Requirements for Permanent I/M SIP Approval
Final approval of the State's plan will be granted based upon the
criteria outlined in the background section and explained in the July
11, 1997 notice. This Federal Register action does not change the
requirements for permanent I/M SIP approval.
VI. Final Action
The EPA is approving the State's May 29, 1997, June 23, 1998, and
December 22, 1998, submittals. By this approval, EPA is giving final
interim approval to the Texas I/M program. As discussed above, the
State submitted the required program demonstration prior to lapse of
the program approval. The EPA will take a separate action on that
demonstration.
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial submittal and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision should adverse
comments be filed. This rule will be effective June 22, 1999, without
further notice unless we receive adverse comments by May 24, 1999.
If EPA receives such comments, we will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. A second comment
period will not be instituted. Parties interested in commenting should
do so at this time. If no such comments are received, the public is
advised that this rule will be effective on June 22, 1999, and no
further action will be taken.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
VII. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under 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 EPA complies by consulting, E.O. 12875 requires EPA to
provide to OMB a description of the extent of EPA's prior consultation
with representatives of affected State, local, and tribal governments,
the nature of their concern, 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 government ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's proposed 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 proposed 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.
The proposed rule is not subject to E.O. 13045 because it is not
economically significant under E.O. 12866, and 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 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, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to OMB, 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, E.O. 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. Accordingly, the requirements
of section 3(b) of E.O. 13084 do not apply to this proposed rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an
[[Page 19913]]
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 proposed rule will not have a significant impact on
a substantial number of small entities because conditional approval of
SIP submittals under section 110 and subchapter I, part D of the Act
does not create any new requirements but simply approves requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose 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 Act, preparation of flexibility analysis
would constitute Federal inquiry into the economic reasonableness of
State action. The Act forbids EPA to base its actions concerning SIPs
on such grounds. See Union Electric Co., v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
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 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.
The EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated 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
preexisting 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.
G. 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. The 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 U.S. comptroller General 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).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 22, 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,
Volatile organic compounds.
Dated: March 30, 1999.
Jerry Clifford,
Acting Regional Administrator, Region 6.
Part 52, chapter I, title 40 of the 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. 7401-7671q.
Subpart SS--Texas
2. Section 52.2270 is amended by adding new paragraph (c)(120) to
read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
(120) Revisions submitted by the Governor on May 29, 1997, June 23,
1998, and December 22, 1998, that change the definition of ``primarily
operated,'' commit to on-board diagnostic testing, remove the test-on-
resale of vehicles subject to the inspection and maintenance program,
and provide the legal authority for denial of re-registration of
vehicles that have not complied with the I/M program requirements, and
the establishment of a class C misdemeanor penalty for operating a
grossly polluting vehicle in a nonattainment area.
(i) Incorporation by reference:
(A) Narrative of State Implementation Plan revision submitted May
29, 1997, by the Governor.
(B) Narrative of State Implementation Plan revision submitted June
23, 1998, by the Governor.
(C) Letter from the Governor dated December 22, 1998, submitting
Senate Bill 1856.
(ii) Additional material:
(A) Senate Bill 1856.
(B) Memorandum of Agreement between the Texas Natural Resource
Conservation Commission and the Texas Department of Public Safety
adopted November 20, 1996, and signed February 5, 1997.
Sec. 52.2310 [Removed]
3. Section 52.2310, Conditional approval, is removed.
[FR Doc. 99-9460 Filed 4-22-99; 8:45 am]
BILLING CODE 6560-50-P
