[Federal Register Volume 62, Number 3 (Monday, January 6, 1997)]
[Rules and Regulations]
[Pages 646-648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-194]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH69-2-6680a; FRL-5646-2]


Approval and Promulgation of Air Quality Implementation Plans 
Ohio; Revision to the Enhanced Motor Vehicle Inspection and Maintenance 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA approves submitted changes to Ohio's enhanced vehicle 
inspection and maintenance program (known as E-Check) as a revision to 
the State Implementation Plan (SIP) for ozone in all areas where the 
State's inspection and maintenance (I/M) program is operated. The EPA's 
action is based upon a request for a revision which was received by EPA 
from Ohio on August 29, 1996. The revision includes a vehicle repair 
spending cap and a temporary hardship extension of time for automobile 
owners with failed vehicles to perform necessary repairs on vehicles 
which fail the E-Check test. The repair spending cap does not affect 
vehicles which require repairs and are under manufacturer warranty; it 
also does not apply to owners whose vehicles have been mal-maintained 
or whose emission control devices have been tampered with. The 
extension of time applies to the automobile owner to which the 
immediate repair of the failed vehicle would present a hardship.
    The changes to the E-Check program are the result of concerns 
expressed by citizens affected by the program in the areas where E-
Check has been implemented, and by Ohio legislators representing them. 
The rule changes do not affect the emission reduction potential of the 
measure, and, therefore, do not affect the expected emission reductions 
in the maintenance plan for Cleveland and Dayton or in the 15 percent 
reasonable further progress plan for Cincinnati. Therefore, the EPA is 
approving the changes to the rule.

DATES: This action is effective March 7, 1997 unless adverse or 
critical comments are received by February 5, 1997. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer, 
Chief, Regulation Development Section, Air Programs Branch (A-18J), 
United States Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    Copies of the SIP revision request and EPA's analysis are available 
for public inspection during normal business hours at the following 
address: United States Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard (A-18J), Chicago, 
Illinois 60604

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Air Programs Branch, 
Regulation Development Section (A-18J), United States Environmental 
Protection, Region 5, Chicago, Illinois 60604, (312) 886-6084.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

    On August 29, 1996, the Director, Ohio Environmental Protection 
Agency, (Ohio EPA) submitted a revision to the previously approved 
1 E-Check program. The submittal was reviewed for completeness and 
was found to meet all of the requirements of appendix V necessary to 
obtain EPA approval under section 110 of the Clean Air Act. The SIP 
revision included: copy of the rule changes, notice of public hearing, 
transcripts, analysis of impact, and

[[Page 647]]

responses to public comments. The legal authority was previously 
established, and a schedule for implementation was not required since 
the State had already begun to implement the changes. The revision, 
which is expected to provide for broader consumer acceptance of the E-
Check program, is expressed in two of the State's rules: Ohio 
Administrative Code (OAC) 3745-26-01 and OAC 3745-26-12.
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    \1\ Enhanced Motor Vehicle Inspection and Maintenance Program, 
60 FR 16989, dated April 4, 1995.
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II. Analysis of State Submittal

    The rule amendments include: broadening the definition of 
``extension certificate'' which has the effect of providing a temporary 
hardship extension of time for qualified vehicle owners to perform 
necessary repairs on failed vehicles, and adds a vehicle repair 
spending cap. The amendments also define ``low income'' in the context 
of the E-Check program in order to qualify for the temporary hardship 
extension.
    The Director of the Ohio EPA issued a notice to amend rule 3745-26-
01 and rule 3745-26-12 which govern the E-Check I/M program in the 14 
affected counties in the State. The rule amendments are intended to 
address the concerns of citizens affected by the I/M program and are a 
result of the opinions expressed by the public in the State's outreach 
program. Public hearings were announced and held in the three affected 
areas of Cincinnati, Cleveland and Dayton.
    The USEPA reviewed the proposed amendments to determine the impact 
the changes will have on emissions in the affected areas. Further, the 
EPA reviewed the proposed changes for their impact on the maintenance 
plan in the Cleveland and Dayton areas and the 15 percent plan in the 
Cincinnati area. The amendments include a vehicle repair spending cap 
and a temporary hardship extension of time for automobile owners to 
perform necessary repairs on vehicles which fail the E-Check test. 
Neither of the changes have a direct impact on the emission reductions 
available from the program. The only emissions assessment method 
available at present is the MOBILE5a model. This model does not 
accommodate the program changes in this case and therefore changes in 
emissions, if any, cannot be determined by its use. Indirectly, the 
amendments may have some impact on the ability of the program to 
achieve total reductions expected as discussed below. However, there 
are no data available to show the effect of these indirect results.
    The repair spending cap applies in situations where an automobile 
owner is required to obtain repairs because of failure of the vehicle 
to pass an I/M test. The spending cap, which is set at $300, represents 
the maximum dollar amount required to be spent for emission related 
repair. It includes the diagnostic fees, labor and parts, as well as 
any costs incurred prior to the test if performed within 60 days prior 
to the test and if related to the vehicle's emission control equipment. 
The spending cap does not include the cost of repair of tampering, nor 
does it include the cost of repair of any item covered by a dealer or 
manufacturer recall or warranty.
    The temporary hardship extension is available to a vehicle owner 
whose vehicle fails the emissions test and meets certain criteria. The 
extension allows an extra six months from the date of the test to have 
the repairs performed. The hardship extension is not available for gas 
cap failures nor is it available for vehicles covered by warranty or if 
the failure is covered by a recall. The ``low income'' test is met if 
the applicant for a hardship extension can demonstrate the household 
income for the previous 12 months is not more than one-hundred fifty 
percent of the poverty threshold level established by the U.S. 
Department of Health and Human Services.
    The Ohio EPA contacted EPA for assistance in assessing the impact 
of the amendments. However, the changes proposed by Ohio EPA do not 
lend themselves to assessment of emission impacts in the traditional 
manner using the MOBILE5a emission factor model. The extent of the 
temporary hardship extension cannot be accurately determined or 
estimated because Ohio EPA has no historical data with respect to the 
number of vehicle owners or lessees who would be eligible for this 
delay in compliance. However, the compliance extension is for a short 
duration relative to the compliance period, and vehicles in this 
category will eventually be repaired. Although delayed, vehicle 
emission reductions are assured. Further, the scarcity of available 
information on the number of vehicle owners who would take advantage of 
the limit to the spending cap prevents Ohio EPA from making a useful 
estimate of the effect on emissions. This spending cap does not affect 
vehicles which require repairs and are under manufacturer emissions 
warranty; it also, does not apply to owners whose vehicles have been 
mal-maintained or tampered. All tampering or mal-maintenance are to be 
repaired by the owner.
    The EPA believes that the rule changes proposed by Ohio EPA will 
not have a significant impact on the emission reduction potential of 
the E-Check program and will improve citizen acceptability of this 
mobile source emission reduction program. The EPA finds there is good 
cause for this direct final approval to become effective thirty days 
from date of publication, and that a delayed effective date is 
unnecessary due to the noncontroversial nature of the changes.

III. Rulemaking Action

    The EPA is publishing this action without prior proposal because 
EPA views this action as a noncontroversial revision and anticipates no 
adverse comments. The changes were made to address concerns expressed 
by citizens and legislators in Ohio and are expected to be received 
favorably. Since this action is in response to previously expressed 
public concerns, no adverse comments are expected. However, EPA is 
publishing a separate document in this Federal Register publication, 
which constitutes a ``proposed approval'' of the requested SIP revision 
and clarifies that the rulemaking will not be deemed final if timely 
significant adverse or critical comments are filed. The ``direct 
final'' approval shall be effective on March 7, 1997, unless EPA 
receives adverse or critical comments (which have not been already 
addressed) by February 5, 1997.
    If EPA receives such comments adverse to or critical of the 
approval discussed above, EPA will publish a Federal Register document 
which withdraws this final action. All public comments received will 
then be addressed in a subsequent rulemaking action.
    Any parties interested in commenting on this action should do so at 
this time. If no such comments are received, EPA hereby advises the 
public that this action will be effective on March 7, 1997.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. EPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of

[[Page 648]]

Management and Budget (OMB) has exempted this regulatory action from 
Executive Order 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the Clean Air Act, preparation of a 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must undertake various actions 
in association with 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 the private sector, of $100 million 
or more. This Federal action approves pre-existing requirements under 
state or local law, and imposes no new Federal requirements. 
Accordingly, no additional costs to state, local, or tribal 
governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a major rule as defined by 5 U.S.C. 
804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 7, 1997. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Volatile organic compounds.

    Dated: October 16, 1996.
William E. Muno,
Acting Regional Administrator.

    Title 40 of the Code of Federal Regulations, chapter I, part 52, 
subpart KK, 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 KK--Ohio

    2. Section 52.1870 is amended by adding paragraph (c)(112) to read 
as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (112) On August 29, 1996, the United States Environmental 
Protection Agency received from the Ohio Environmental Protection 
Agency, changes to the approved vehicle inspection and maintenance (I/
M) program which control the release of volatile organic compounds from 
vehicles. These changes provide a repair spending cap of $300 and a 
temporary hardship extension of time up to 6 months for owners to 
perform needed repairs on vehicles which fail the I/M program test.
    (i) Incorporation by reference.
    (A) Rule 3745-26-01--Definitions effective May 15, 1996.
    (B) Rule 3745-26-12--Requirements for motor vehicle owners in the 
enhanced or opt-in enhanced automobile inspection and maintenance 
program, effective May 15, 1996.

[FR Doc. 97-194 Filed 1-3-97; 8:45 am]
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