[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-17375] [[Page Unknown]] [Federal Register: July 18, 1994] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [NH14-1-6483; A-1-FRL-5014-6] Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Enhanced Inspection and Maintenance in Hillsborough, Merrimack, Rockingham, and Strafford Counties AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: In this action, EPA proposes to conditionally approve or, in the alternative, disapprove the New Hampshire Enhanced Inspection and Maintenance (I/M) State Implementation Plan (SIP) which was submitted to EPA for approval on March 1, 1994, April 20, 1994, and April 28, 1994. These submittals were supplemented by letters dated May 19, 1994 and June 28, 1994 providing additional information and specific assurances regarding changes New Hampshire is making to the program and stating the State's intent to submit further information to EPA by August 19, 1994. The content of the State's letters is described in detail in this notice. If such information is submitted for inclusion in the SIP on or before that date, EPA proposes to conditionally approve the New Hampshire I/M SIP. If such information is not submitted by August 19, 1994, EPA proposes to disapprove the SIP. Since the August 19, 1994 submittal will not be included in the docket for this notice in time to provide adequate public review and comment during the normal comment period, the comment period will remain open only for comments concerning the August 19, 1994 submittal until August 29, 1994. Conditional approval is based on the state's commitment to satisfy specified conditions by July 29, 1995. If such conditions are not met by July 29, 1995, the conditional approval automatically will convert to a disapproval. New Hampshire submitted this I/M SIP revision to EPA to satisfy the requirements of sections 182(b)(4), 182(c)(3) and 184(b)(1)(A) of the Clean Air Act, and EPA's I/M rule at 40 CFR Part 51, Subpart S. These SIP revisions will require vehicle owners to comply with the New Hampshire I/M program in four New Hampshire counties that are part of the Northeast Ozone Transport Region namely, Hillsborough, Merrimack, Rockingham and Strafford. This action is being taken under Section 110 of the Clean Air Act. DATES: Comments must be received on or before August 17, 1994. Only public comments on the submittal due on August 19, 1994 by the state of New Hampshire may be received after August 17, 1994 but not later than August 29, 1994. Public comments on these documents are requested and will be considered before taking final action on this SIP revision. ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, New England Region, JFK Federal Bldg. (AAA), Boston, MA 02203. Copies of the State submittal and EPA's technical support document are available for public inspection during normal business hours, by appointment at the Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, New England Region, One Congress Street, 10th floor, Boston, MA and the New Hampshire Department of Environmental Services, Air Resources Division, 64 North Main Street, Concord, NH 03302-2033. FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3224. SUPPLEMENTARY INFORMATION: I. Clean Air Act Requirements The Clean Air Act, as amended in 1990 (CAA or Act), requires certain States to revise and improve existing I/M programs or implement new ones. All ozone nonattainment areas classified as moderate or worse must implement a basic or enhanced I/M program depending upon its nonattainment classification, regardless of previous requirements. In addition, Congress directed the EPA in section 182(a)(2)(B) to publish updated guidance for State I/M programs, taking into consideration findings of the Administrator's audits and investigations of these programs. The States must then incorporate this guidance into the SIP for all areas required by the Act to have an I/M program. Metropolitan statistical areas with populations of 100,000 or more that are within the Northeast Ozone Transport Region are required to meet EPA guidance for enhanced I/M programs. II. Background The EPA has designated three areas as nonattainment for ozone in the State of New Hampshire. The New Hampshire portion of the Boston- Lawrence-Salem Consolidated Metropolitan Statistical Area is classified serious for ozone, the Portsmouth-Dover-Rochester Metropolitan Statistical Area (MSA) also is classified serious for ozone, and the Manchester MSA is classified marginal for ozone. The designations for ozone were published in the Federal Register (FR) on November 6, 1991 (56 FR 56694) and November 30, 1992 (57 FR 56762) and have been codified in the Code of Federal Regulations (CFR) at 40 CFR sections 81.300-81.437. Based on these nonattainment designations, an enhanced I/M program is required in Hillsborough, Rockingham, Strafford. In addition, these MSAs have populations of over 100,000 or more and are included in the Ozone Transport Region. Although parts of Merrimack County are in the Manchester MSA, the county could be exempted since, in New England, MSAs are defined by town, not by county and more than fifty percent of the MSA population would be in the I/M program and the population density is less than 200 persons per square mile. Under EPA's I/M rule 40 CFR 51.350(b)(1) such portions of Merrimack county are not required to implement I/M. However, all of Merrimack County is included to generate emission reductions which may be used as offsets or trading credits. By this action, EPA is proposing to conditionally approve and in the alternative, disapprove the New Hampshire I/M SIP revision. EPA has reviewed the State submittals against the statutory requirements under the Act and for consistency with EPA regulations. In letters dated May 19, 1994 and June 28, 1994, New Hampshire indicated its intent to address a number of outstanding issues discussed further in this notice and to submit necessary revisions to EPA by August 19, 1994. If such revisions are submitted in a timely manner, are consistent with this notice and fully meet the requirements of the I/M rule, EPA will conditionally approve the SIP. Three parts of the program, on-road testing, compliance via diagnostic inspection, and enforcement against inspectors require more time to resolve and provide the basis for today's proposed conditional approval. As requested by New Hampshire, the state will have until July 29, 1995 to submit these revisions to address these three areas. If such revisions are submitted by that date, fulfill the conditions set forth in this notice, and fully meet the requirements of the I/M rule, the state will have met the specified conditions and the I/M SIP will be fully approved. A summary of EPA's analysis is provided below. In addition, more detailed support for conditionally approving the State submittal is contained in the technical support document (TSD), dated June 28, 1994, which is available from the New England Regional Office, listed above. On November 5, 1992 (57 FR 52950), EPA published a final regulation establishing the I/M requirements, pursuant to sections 182 and 187 of the Act. The I/M regulation was codified at 40 CFR Part 51, Subpart S, and requires States to submit, by November 15, 1993, an I/M SIP revision including all necessary legal authority and the items specified in 40 CFR 51.350 (a)(1) through 51.373. III. State Submittal On March 1, 1994, April 20, 1994, and April 28, 1994, the State of New Hampshire submitted an I/M SIP for its three nonattainment areas. Public hearings for the submittals were held on January 5 and 6, 1994, for the March 1, 1994 SIP submittal, and on March 8, 1994 for the April 20, 1994 SIP submittal. The April 28, 1994 submittal contained only administrative materials to supplement the April 20 submission. EPA submitted written comments to the state on March 18, 1994. EPA's primary comments concerned the State's modeling analysis demonstrating achievement of the performance standard, and the motorist compliance enforcement program. In letters dated May 19, 1994 and June 28, 1994, the state agreed to submit by August 19, 1994 additional information to address these and other areas identified in this notice and discussed further below. The submittals provide for the implementation of an enhanced I/M program in four counties in New Hampshire beginning on January 1, 1995. New Hampshire will be implementing a biennial, test-only I/M program meeting the requirements of the I/M performance standard and other requirements contained in EPA's I/M rule. Testing will be overseen by the New Hampshire Department of Safety (NHDOS) and the New Hampshire Department of Environmental Services (NHDES), with actual testing done by a contractor. Other aspects of the New Hampshire I/M program include: testing of 1968 and later light duty vehicles and trucks, and heavy duty trucks, evaporative emission testing for 1975 and later model year vehicles, a test fee to ensure the State has adequate resources to implement the program, enforcement by registration suspension, a repair effectiveness program, contractual requirements for testing convenience, quality assurance, data collection, minimum expenditure, time extension and hardship waivers, reporting, test equipment and test procedure specifications, public information and consumer protection, inspector training and certification, and penalties against inspector incompetence. In addition, the enhanced I/M program will include: IM240 testing for 1981 and newer vehicles, an on- road testing program, and emission recall enforcement. A section-by- section analysis of how the New Hampshire I/M program meets the SIP requirements of the federal I/M rule is provided below. A. Applicability Under EPA's I/M rule, the SIP must describe the applicable areas in detail and, consistent with 40 CFR Section 51.372, must include legal authority necessary to establish program boundaries and implement the program. The New Hampshire I/M legislation in Chapter 353 of the Laws of 1993 specifies that vehicles registered in Hillsborough, Merrimack, Rockingham, and Strafford counties be subject to an enhanced I/M program. EPA's I/M regulation requires that the state program shall not terminate prior to the attainment deadline for each applicable area. The New Hampshire program has no sunset date. B. Enhanced I/M Performance Standard Under EPA's I/M rule, an I/M SIP must meet the enhanced I/M performance standard for pollutants that cause the affected area to come under I/M requirements. The performance standard sets an emission reduction target that must be met by a program in order for the SIP to be approvable. The SIP also must provide that the program will meet the performance standard in actual operation, with provisions for appropriate adjustments if the standard is not met. New Hampshire has submitted a modeling demonstration using the EPA computer model MOBILE5a showing that the enhanced performance standard will be met. This demonstration will need to be revised since the assumptions for gasoline Reid Vapor Pressure (RVP) and vehicle refueling emissions used in the model program were not the same as those used in the New Hampshire proposed program. In addition, the State used national average vehicle age data because the existing registration data is believed to be unreliable, and the State assumed a 99% compliance rate and waiver rate of 1%. EPA agreed to allow the use of national vehicle age data but questioned the use of the 99% compliance and 1% waiver rates given the unreliable registration model year data and the lack of an adequate description of the motorist enforcement system. EPA believes that a 96% compliance rate and 3% waiver rate are achievable for a well operated program, but rates in excess of these require measures which go beyond normal enforcement and quality control measures. EPA has evaluated these matters and determined that the program will meet the performance standard with the correct RVP and vehicle refueling emissions assumptions and with either a 99% compliance rate and 1% waiver rate or with the rates provided in EPA's I/M rule, namely, a 96% compliance rate and a 3% waiver rate. In a letter dated May 19, 1994, the State agreed to reconsider the compliance and waiver rates and submit additional information by August 19, 1994 justifying these rates, or revising them to lower rates. At a minimum, the state intends to meet a 96% compliance rate and 3% waiver rate as required by the EPA rule. New Hampshire has submitted a separate SIP submittal for the 15% rate of progress demonstration required by the Act. That SIP is being evaluated by EPA and will be discussed in a separate Federal Register notice. Any implications of New Hampshire's decision on compliance and waiver rates on their 15% rate of progress SIP will be discussed in that notice. C. Network Type and Program Evaluation Under EPA's I/M rule, the SIP must include a description of the network to be employed, the required legal authority, and, in the case of areas making claims for case-by-case equivalency, the required demonstration. Also, for enhanced I/M areas, the SIP must include a description of the evaluation schedule and protocol, the sampling methodology, the data collection and analysis system, the resources and personnel for evaluation and related details of the evaluation program, and the legal authority enabling the evaluation program. New Hampshire has chosen to implement a test-only I/M network program design utilizing a contractor to implement the inspection portion of the program. Legal authority contained in Chapter 353 of the Laws of 1993 authorizes the NHDOS to implement this contractor operated test-only program and conduct the program evaluation. The contractor will be required to use a computer program to randomly select 0.1% of the vehicles for evaluation testing. The state has indicated in the May 19, 1994 letter that these tests will be monitored by either a NHDOS referee at the station, the station manager, or a representative of the NHDES. The required data will be collected by the contractor. NHDES will analyze this data with the resources assigned to the program. The May 19, 1994 letter also indicates that the August 19, 1994 submittal will include provisions with appropriate penalties in the contract to bar employees of the contractor from referring motorists to particular repair shops. D. Adequate Tools and Resources Under EPA's I/M rule, the SIP must include a description of the resources that will be used for program operation and must discuss how the performance standard will be met including: (1) a detailed budget plan describing the source of funds for personnel, program administration, program enforcement, purchase of necessary equipment (such as vehicles for undercover audits), and other requirements discussed throughout, for the period prior to the next biennial self- evaluation required by the Federal I/M rule, and (2) a description of personnel resources, the number of personnel dedicated to overt and covert auditing, data analysis, program administration, enforcement, and other necessary functions and the training attendant to each function. Within the New Hampshire I/M SIP revision, Chapter 353 of the New Hampshire Laws of 1993 authorizes the collection of $2.75 in addition to the cost of each inspection to cover the administration, oversight, and enforcement of the I/M program. The SIP narrative describes the budget, staffing support, and equipment needed to implement the program. The State expects to dedicate a staff of 12.5 full-time equivalent employees to support the program. EPA is concerned that the resources identified may not be sufficient to administer and oversee the program properly. The resources identified are significantly lower than resources other states have planned which will be implementing programs of approximately the same size. EPA will monitor the program closely during the first year to determine if administration, enforcement and oversight are adequate. The submittal also calls for audit gases (gases used to calibrate emission analyzers) for state audits to be supplied by the contractor. These gases should be independently named. In its letter dated June 28, 1994 the state has agreed to have audit gases independently named by sending them to EPA. EPA will also ensure that this requirement is met during audits of the New Hampshire program. E. Test Frequency and Convenience Under EPA's I/M rule, the SIP must describe the test schedule in detail, including the test year selection scheme if testing is other than annual. Also, the SIP must include the legal authority necessary to implement and enforce the test frequency requirement and explain how the test frequency will be integrated with the enforcement process. In addition, in enhanced I/M programs, the SIP must demonstrate that the network of stations providing test services is sufficient to insure consumer convenience including short waiting times to get a test and short driving distances to get to a test center. The New Hampshire SIP requires biennial inspections for all subject motor vehicles that are at least one year old. The inspections will be conducted on odd or even years corresponding to the model year of the vehicle and timed with the registration process explained in the SIP. The authority for the enforcement of the testing frequency is contained in the Chapter 353 of the Laws of 1993. Short waiting times and short driving distances relating to network design are required by Chapter 353 and are addressed in the RFP and will be required of the chosen contractor under the contract. The State is requiring, by contract, a 15 minute average waiting time and short driving distances such that 80% of the vehicle population is located within five miles of an inspection facility, and 95% of the vehicle population is located within twelve miles of an inspection facility. F. Vehicle Coverage Under EPA's I/M rule, the SIP must include a detailed discription of the number and types of vehicles to be covered by the program, and a plan for identifying vehicles, including vehicles that are routinely operated in the area but may not be registered in the area. Also, the SIP must include a description of any special exemptions authorized by the program, along with an estimate of the percentage and number of affected vehicles. Such exemptions need to be accounted for in the emission reduction analysis. In addition, the SIP must include the legal authority necessary to implement and enforce the vehicle coverage requirement. The New Hampshire program includes coverage of all 1968 and newer model year gasoline powered light-duty vehicles and light-duty and heavy-duty trucks, registered, or required to be registered, within the above-mentioned four county area, and of fleets primarily operated within an I/M program area. Vehicles will be identified by the NHDOS vehicle registration database. The NHDOS computer system and registration data base needs to be updated. In its letter dated May 19, 1994 New Hampshire stated it's intention to update this information with a table of subject vehicles by model year by August 19, 1994. Diesels, motorcycles and vehicles over 26,000 lbs Gross Vehicle Weight Rating GVWR are exempt from the emission testing program. Legal authority for the vehicle coverage is contained in the New Hampshire Chapter 353 of the Laws of 1993. G. Test Procedures and Standards Under EPA's I/M rule, the SIP must include a description of each test procedure. The SIP also needs to include the rule, ordinance or law describing and establishing the test procedures. The New Hampshire I/M SIP requires IM240 (transient) testing in accordance with EPA's guidance document entitled, ``High-Tech I/M Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications'' dated April 1994 (Technical Guidance). New Hampshire referenced an older version of this document but in its May 19, 1994 letter to EPA confirmed that the state already has notified potential vendors of this change through the April 25, 1994 communication the state advised all potential contractors that the most recent version of EPA specifications and guidelines should be used. The State requires IM240 and evaporative purge tests on 1981 and later model year vehicles up to and including 10,000 lbs gross vehicle weight rating (GVWR). All 1968 thru 1980 vehicles up to, and including, 10,000 lbs GVWR and all 1968 and newer vehicles 10,001-26,000 lbs will be tested with a two-speed test. All 1979 and newer vehicles will receive a pressure test. A visual tampering inspection will be conducted on all 1975 and newer vehicles. The test procedures are authorized by Chapter 353 of NH Laws of 1993 and further defined in the NHDOS Enhanced Emissions Inspection and Maintenance Program Rules (NH Enhanced I/M Rules). The May 19, 1994 letter stated that the State will establish the cutpoints necessary to achieve a 20% stringency rate for vehicles being idle tested in 1999. The need to revise the final cutpoints will be assessed once actual test data is available from the New Hampshire program. The results of such assessment could require revision of the State's regulations prior to the 1999 testing cycle. H. Test Equipment Under EPA's I/M rule, the SIP must include written technical specifications for all test equipment used in the program and must address each of the requirements in 40 CFR 51.358. The specifications must describe the emission analysis process, the necessary test equipment, the required features, and written acceptance testing criteria and procedures. The New Hampshire I/M SIP requires the use of the equipment specifications in EPA's Technical Guidance. As previously stated, New Hampshire referenced an older version of this document but updated the reference in the State's May 19, 1994 letter to EPA. The New Hampshire SIP and RFP address the requirements in 40 CFR 51.358 and include descriptions of performance features and functional characteristics of the computerized test systems. The necessary test equipment, required features, and acceptance testing criteria are mandated by contract through the RFP. I. Quality Control Under EPA's I/M rule, the SIP must include a description of quality control and recordkeeping procedures. The SIP must include the procedures manual, rule, and ordinance or law describing and establishing quality control procedures and requirements. The New Hampshire I/M SIP narrative and RFP contain descriptions and requirements establishing the quality control procedures in accordance with the Federal I/M rule. These requirements will help ensure that equipment calibrations are properly performed and recorded and that compliance document security is maintained. The quality control procedures manual will be developed as part of the contract and is required by New Hampshire in the RFP. New Hampshire's May 19, 1994 letter to EPA states its intent to follow specifications for quality control per EPA's Technical Guidance. The August 19, 1994 submittal will address this. J. Waivers and Compliance via Diagnostic Inspection Under EPA's I/M rule, the SIP must include a maximum waiver rate expressed as a percentage of initially failed vehicles. This waiver rate is used for estimating emission reduction benefits in the modeling analysis. Also, the State must take corrective action if the waiver rate exceeds that estimated in the SIP or revise the SIP accordingly and the emission reductions claimed. In addition, the SIP must describe the waiver criteria and procedures, including cost limits, quality assurance methods and measures, and administration. Lastly, the SIP must include the necessary legal authority, ordinance, or rules to issue waivers, set and adjust cost limits as required, and carry out any other functions necessary to administer the waiver system, including enforcement of the waiver provisions. Cost limits for the minimum expenditure waivers must be in accordance with the CAA and EPA's PI/M rule. In the New Hampshire I/M SIP revision, legal authority for waivers is set forth in Chapter 353 of the Laws of 1993. Consistent with EPA's I/M rule, waiver cost limits are established at $450 and adjusted annually in the New Hampshire enhanced I/M the program. The SIP revision also includes a 1% waiver rate expressed as a percentage of initially failed vehicles. This 1% waiver rate was used in the New Hampshire modeling demonstration. The state is reconsidering this rate as discussed in section B. above, and will provide additional justification to support it or revise it in the August 19, 1994 submittal. The SIP provides that, if the waiver rates are higher than estimated, NHDES will take corrective action to address the deficiency. The SIP describes three types of waivers the State may allow. Such waivers include a minimum expenditure waiver, a time extension waiver, and a one-time hardship waiver. These waivers are consistent with EPA's I/M rule. The proper criteria, procedures, quality assurance and administration for issuing waivers is ensured by the NHDOS and its managing contractor and are described in the SIP narrative, Section 6 of the New Hampshire Enhanced I/M rules and the RFP. Compliance via diagnostic inspections were allowed for all model years in the original submission, but in a letter dated May 19, 1994, the state indicated that it will establish procedures and a policy which will allow compliance by this mechanism only on 1981 and newer vehicles subject to IM240 tests at final cutpoints or lower. The state commits to submitting this revision by July 29, 1995. This part of the New Hampshire SIP provides one basis for EPA's proposal of a conditional approval of this SIP revision. K. Motorist Compliance Enforcement Under EPA's I/M rule, the SIP must provide information concerning the motorist compliance enforcement process, including: (1) A description of the existing compliance mechanism if it is to be used in the future, and the demonstration that it is as effective, or more effective, than registration-denial enforcement; (2) an identification of the agencies responsible for performing each of the applicable activities in this section; (3) a description of and accounting for all classes of exempt vehicles; and (4) a description of the plan for testing fleet vehicles, rental car fleets, leased vehicles, and any other special classes of subject vehicles, for example, those operated in (but not necessarily registered in) the program area. Also, the SIP must include a determination of the current compliance rate based on a study of the system that includes an estimate of compliance losses due to loopholes, counterfeiting, and unregistered vehicles. Estimates of the effect of closing such loopholes and otherwise improving the enforcement mechanism need to be supported with detailed analyses. In addition, the SIP needs to include the legal authority to implement and enforce the program. Lastly, the SIP needs to include a commitment to an enforcement level to be used for modeling purposes and to be maintained, at a minimum, in practice. The State has chosen to use registration suspension as its primary enforcement mechanism. Motorists will have 45 days from the registration date to comply with the I/M program requirements or their vehicle registration will be suspended. The motorist compliance enforcement program will be implemented by the NHDOS. The SIP does not describe the computer matching system necessary to implement this system. Motorcycles and diesel vehicles are exempt from this program as permitted by the I/M rule. Fleet vehicles, rental car fleets, and leased vehicles are required to meet the same program requirements as all other subject vehicles. The State has not yet developed a plan for fleet vehicles, but requires this as part of the contract. The State has not addressed tracking out-of-state exemptions. The State has estimated a 99% compliance rate without a detailed description of how this will be accomplished. The legal authority to implement and enforce the program is included in Chapter 353 of the Laws of 1993. In its letters of May 19, 1994 and June 28, 1994, the State submitted a detailed description of the enforcement process and committed to justifying the compliance rate, or revising the compliance rate in the SIP and to address the other deficiencies described in this section by August 19, 1994. L. Motorist Compliance Enforcement Program Oversight Under EPA's I/M rule, the SIP must include a description of enforcement program oversight and information management activities. The New Hampshire I/M SIP did not address this area specifically. However, in its letter dated June 28, 1994, New Hampshire committed to comply with 40 CFR 51.362, motorist compliance enforcement oversight and explained that the SIP committed to achieving the highest quality assurance and quality control to meet this requirement. M. Quality Assurance Under EPA's I/M rule, the SIP must include a description of the quality assurance program, and written procedures manuals covering both overt and covert performance audits, record audits, and equipment audits. This requirement does not include materials or discussion of details of enforcement strategies that would ultimately hamper the enforcement process. The New Hampshire I/M SIP revision includes a description of its quality assurance program. The program includes overt and covert audits of all emission inspectors and emission inspection lanes and will be conducted by the NHDOS. Procedures and techniques for overt and covert performance, record, and equipment audits will be developed by the state or a contractor, given to auditors and updated as needed. The SIP does not indicate whether audit results will be recorded and retained in station and inspector files, whether records are of sufficient detail to support civil and administrative hearings, whether stations and inspectors suspected of violating program regulations will be audited more frequently, or whether covert auditors will be rotated. By its letter dated May 19, 1994, the state commits to addressing these points by August 19, 1994. The state has assured EPA that all required training elements are included in the auditor training program and that this will be detailed in the SIP submission of August 19, 1994. N. Enforcement Against Contractors, Stations and Inspectors Under EPA's I/M rule, the SIP must include the penalty schedule and the legal authority for establishing and imposing penalties, civil fines, license suspension, and revocations. In the case of state constitutional impediments to immediate suspension authority, the state Attorney General must furnish an official opinion for the SIP explaining the constitutional impediment as well as relevant case law. Also, the SIP must describe the administrative and judicial procedures and responsibilities relevant to the enforcement process, including which agencies, courts, and jurisdictions are involved; who will prosecute and adjudicate cases, and other aspects of the enforcement program. In addition, the SIP must describe the resources to be allocated to this enforcement function and the source of funding for such resources. In states without immediate suspension authority, the SIP needs to demonstrate that sufficient resources, personnel, and systems are in place to meet the three day case management requirement for violations that directly affect emission reductions. The New Hampshire I/M SIP includes specific penalties in its enforcement against contractors, stations and inspectors in accordance with EPA's I/M rule. The SIP includes the State's enforcement procedures which can be pursued through either contract provisions or Section 16 of the NH Enhanced I/M Rules. The NHDOS has the authority to immediately suspend a station inspector for violations that directly affect emission reduction benefits. Legal authority for establishing and imposing penalties, civil fines, license suspension, and revocations are contained in the New Hampshire Chapter 353 of the Laws of 1993, and Enhanced Emissions Inspection and Maintenance Program Rules (NHDOS). In addition, contractual enforcement mechanisms are contained in the RFP. As discussed in the I/M SIP in Section M. NHDOS referees will spend 20 hours per week in each inspection station. NH Enhanced I/M Rule, Section 16 does not require imposition of substantial penalties as required by EPA's I/M rule (six month suspension) or equivalent retainage on the first offense by inspectors for violations that directly affect emission reduction benefits. Section M. of the New Hampshire narrative indicates that mandatory retraining will be required of inspectors for violations, however, this is not stated in the regulation. In its letter to EPA dated June 28, 1994 New Hampshire stated that mandatory retraining will be a requirement of the contract, and that Section 16 will be revised to be consistent with the penalty required by the EPA rule. The state commits to submitting the revision to Section 16 by July 29, 1995. This part of the New Hampshire SIP provides another basis for EPA's proposal of a conditional approval of this SIP revision. O. Data Analysis and Reporting Under EPA's I/M rule, the SIP must describe the types of data to be collected. The New Hampshire I/M SIP narrative, Section O, and Section 18 of the NH Enhanced I/M Rule provides for collecting data required by EPA regulation and submitting required reports. P. Inspector Training and Licensing or Certification Under EPA's I/M rule, the SIP must include a description of the training program, the written and hands-on tests, and the licensing or certification process. The New Hampshire I/M SIP provides for the implementation of training, certification, and refresher programs for emission inspectors. The SIP describes this program and curriculum, including written and hands-on testing required at least every two years. All inspectors will be required to be certified to inspect vehicles in the New Hampshire I/M program. In the letter of May 19, 1994, New Hampshire describes the written and hands-on tests, how they will be developed, and how the State will audit contractor administered tests. Q. Improving Repair Effectiveness Under EPA's I/M rule, the SIP must include a description of the technical assistance program to be implemented, a description of the procedures and criteria to be used in meeting the performance monitoring requirements of this section for enhanced I/M programs, and a description of the repair technician training resources available in the community. The New Hampshire SIP includes a description of the technical assistance, performance monitoring and repair technician training programs to be implemented. The State did not specify a mechanism to regularly inform repair facilities regarding changes to the inspection program, training course schedules, common problems, potential solutions for particular engine families, diagnostic tips, repairs, and other assistance issues. In a letter dated May 19, 1994 the state agreed to provide a plan to EPA by August 19, 1994 that will provide the means to transmit the above-referenced information to the repair community. The NHDOS, as described in the SIP, will also ensure that a repair technician hotline will be available for repair technicians. Performance monitoring statistics of certified repair facilities will be provided to motorists whose vehicles fail the I/M tests in enhanced I/M areas. The State will also ensure that adequate repair technician training exists through the establishment of an advisory workgroup. R. Compliance With Recall Notices Under EPA's I/M rule, the SIP must describe, for enhanced I/M programs, the procedures used to incorporate vehicle recall lists provided by EPA into the inspection or registration database, the quality control methods used to ensure that recall repairs are properly documented and tracked, and the method (inspection failure or registration denial) used to enforce the recall requirements. The NH RFP Section 6.9 requires the contractor to notify vehicle owners of recalls in accordance with EPA requirements, NH Enhanced I/M Rules Section 4.F.1.h., requires that vehicle owners whose vehicle is included in an emission recall, comply with the recall requirement in order to be inspected. Motorists with unresolved recall notices will be required to show proof of compliance or will be denied the opportunity for inspection. In the May 19, 1994 submission, New Hampshire explains that the RFP requires tracking and verification of recall repairs. Such data will include reference to the recall campaign number. S. On-Road Testing Under EPA's I/M rule, the SIP must include a detailed description of the on-road testing program required in enhanced I/M areas, including the types of testing, test limits and criteria, the number of vehicles (the percentage of the fleet) to be tested, the number of employees to be dedicated to the on-road testing effort, the methods for collecting, analyzing, utilizing, and reporting the results of on- road testing and, the portion of the program budget to be dedicated to on-road testing. Also, the SIP must include the legal authority necessary to implement the on-road testing program, including the authority to enforce off-cycle inspection and repair requirements. In addition, emission reduction credit for on-road testing programs can only be granted for a program designed to obtain significant emission reductions over and above those already predicted to be achieved by other aspects of the I/M program. The SIP must include technical support for the claimed additional emission reductions. The New Hampshire I/M SIP includes a description of its on-road testing program. The testing program will include no less than 0.5% of the subject vehicles as required by Section 9 of the NH Enhanced I/M Rules. The program will be included as part of the testing contract and the contractor will provide data collection analysis and utilize this data to identify high emitting vehicles. The state has not established standards for this program or identified the type of testing that will be conducted. The legal authority for this program is contained in the New Hampshire I/M Chapter 353 of the Laws of 1993. In a letter dated May 19, 1994, the state commits to develop and submit standards to EPA. The state commits to submitting this revision by July 29, 1995. This part of the New Hampshire SIP provides the third basis for EPA's proposal of a conditional approval of this SIP revision. T. Concluding Statement A more detailed analysis of the State's I/M SIP submittal and how it meets the Federal requirements is contained in the EPA's technical support document dated June 28, 1994, which is available from the EPA- New England Regional office listed above. The criteria used to review the SIP revision submitted are based on the requirements of Section 182 of the CAA and EPA's I/M regulations. Based on these requirements, EPA developed a detailed I/M approvability checklist to be used nationally to assist in determining whether I/M programs meet the requirements of the CAA and the federal I/M rule. The checklist is formatted by stating the Federal requirement by each section, and followed by information indicating whether or not the New Hampshire program meets the criteria and where in the New Hampshire SIP submittal the requirements are addressed. This checklist, the CAA and EPA's I/M regulations formed the basis for EPA's technical review. EPA has reviewed the I/M SIP revision submitted by New Hampshire. Using the criteria stated above, the New Hampshire regulations and accompanying materials contained in the SIP represent an acceptable plan to comply with the I/M requirements and meet all the criteria required for conditional approval of such SIP revision. IV. New Hampshire I/M Committal SIP On September 27, 1993, EPA proposed conditional approval of the New Hampshire I/M committal SIP submitted on January 12, 1993, including a schedule for implementation of the program. At that time, EPA believed that conditional approvals were appropriate for I/M committal SIPs because the States could not be expected to begin developing an I/M program meeting the requirements of the CAA and the I/M regulations until the I/M regulations were adopted as a final rule which occurred on November 5, 1992. In a letter dated October 21, 1993, the Natural Resource Defense Council (NRDC) commented on the proposed approval of the committal SIP arguing that States should have submitted full I/M SIPs by November 15, 1992. In addition, in a Court order dated May 6, 1994, the United States Circuit Court of Appeals for the District of Columbia concluded, in the context of an NRDC lawsuit concerning I/M, that EPA's acceptance of I/M committal SIPs was contrary to law and improperly delayed SIP submissions beyond the statutory deadlines. Further, the Court directed EPA to review and either approve or disapprove by no later that September 15, 1994 all I/M SIPs already received. As a result of that court order, EPA is taking this action on the New Hampshire SIP submitted on March 1, 1994, April 20, 1994, April 28, 1994, May 19, 1994, and June 28, 1994 and will not be taking further action on the ``committal'' I/M SIP submitted by the State of New Hampshire on January 12, 1993. The conditional approval proposed today is based upon New Hampshire's commitment to develop and submit on-road testing standards, compliance via diagnostic procedures, and revised inspector penalties by July 29, 1995. If this commitment is not met, the conditional approval will convert to a disapproval. In the alternative, EPA proposes to disapprove the New Hampshire I/M SIP revision if the submittals described in this package are not revised by August 19, 1994 or are incomplete. Proposed Action EPA is proposing to conditionally approve or in the alternative disapprove New Hampshire's enhanced inspection and maintenance SIP. Pursuant to Section 110(k)(4) of the Act, the conditional approval is based on the commitment articulated by New Hampshire in its May 19, 1994 and June 28, 1994 letters to submit a revised SIP revision by July 29, 1995, that complies with the requirements for on-road testing, compliance via diagnostic inspection, and inspector penalties. Section 110(k)(4) of the CAA provides that, if a state fails to comply with its commitment, such conditional approval will convert to a disapproval. In the alternative, this action proposes to disapprove the New Hampshire I/M SIP revision if New Hampshire does not adequately address the issues articulated in this notice by on or before August 19, 1994. Under 5 U.S.C. 605(b), I certify that this SIP revision will not have a significant economic impact on a substantial number of small entities. (See 46 FR 8709.) The EPA requests comments on this proposal including the EPA's proposal to conditionally approve or, in the alternative, disapprove the I/M SIP for New Hampshire as meeting the requirements of the CAA and EPA's Federal I/M rule. As indicated at the outset of this notice, the EPA will consider any comments received by August 17, 1994 and will make the TSD available upon request. EPA will also consider any comments received by on or before August 29, 1994 regarding the information specified herein that is due by August 19, 1994 from New Hampshire. This action has been classified as a Table 1 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. A future notice will inform the general public of these tables. Under 5 U.S.C. Section 605(b), the Administrator certifies that SIP approvals under Sections 107, 110 and 172 of the Clean Air Act will not have a significant economic impact on a substantial number of small entities. SIP approvals (or redesignations) do not create any new requirements but simply approve requirements that are already state law. SIP approvals (or redesignations), therefore, do not add any additional requirements for small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of a flexibility analysis for a SIP approval would constitute Federal inquiry into the economic reasonableness of the State actions. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 96 S. Ct. 2518 (1976); 42 U.S.C. Section 7410(a)(2). If EPA issues a final disapproval or if the conditional approval is converted to a disapproval under section 110(k), based on the state's failure to meet the commitment, it will not affect any existing state requirements applicable to small entities. Federal disapproval of the state submittal does not affect its state-enforceability. Moreover, EPA's disapproval of the submittal does not impose a new federal requirement. Therefore, EPA certifies that in the event EPA disapproves the state submittal, this disapproval action would not have a significant impact on a substantial number of small entities because it would not remove existing state requirements nor does it substitute a new federal requirement. Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 and is therefore not subject to OMB review. The Administrator's decision to approve or disapprove the SIP revision will be based on whether it meets the requirements of Section 110(a)(2) (A)-(K) and 110(a)(3) of the Clean Air Act, as amended, and EPA regulations in 40 CFR part 51. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401-7642. Dated: June 27, 1994. John P. DeVillars, Regional Administrator, Region I. [FR Doc. 94-17375 Filed 7-15-94; 8:45 am] BILLING CODE 6560-50-P