[Federal Register Volume 62, Number 93 (Wednesday, May 14, 1997)]
[Rules and Regulations]
[Pages 26401-26405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ23-1-164, FRL-5823-9]


Approval and Promulgation of Implementation Plans; New Jersey; 
Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: EPA is granting conditional interim approval of a State 
Implementation Plan (SIP) revision submitted by New Jersey. This 
revision establishes and requires the implementation of an enhanced 
inspection and maintenance (I/M) program in the State. There are two 
intended effects of this action. One effect is to give conditional 
approval to the State's proposed enhanced I/M program under section 110 
of the Clean Air Act. The other intended effect is to grant interim 
approval incorporating provisions authorized by section 348 of the 
National Highway System

[[Page 26402]]

Designation Act, where applicable, to last a period of 18 months. 
Application of section 348 may result in some program adjustments 
during the 18-month period to ensure efficacy of the I/M program is 
achieved.

EFFECTIVE DATE: This rule will be effective June 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations: Environmental Protection Agency, Region II Office, 
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 
10007-1866 and New Jersey Department of Environmental Protection, East 
State Street, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Rudolph K. Kapichak, Mobile Source 
Team Leader, Air Programs Branch, Environmental Protection Agency, 290 
Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 31, 1996 (61 FR 56172), EPA published a notice of 
proposed conditional interim approval of New Jersey's enhanced I/M 
program. New Jersey submitted changes to the existing program on March 
27, 1996 to satisfy the applicable requirements of both the Clean Air 
Act (CAA) and the National Highway System Designation Act (NHSDA).
    As described in the October 31, 1996 document, the NHSDA directs 
EPA to grant interim approval for a period of 18 months to approvable 
I/M submittals. The NHSDA also directs EPA and the states to review the 
program results at the end of the 18-month interim period and to make a 
determination as to the effectiveness of the program. Following this 
demonstration, EPA will adjust any credit claims made by the state in 
its good faith estimate to reflect the emissions reductions actually 
measured by the state during the program evaluation period. The NHSDA 
is clear that the interim approval shall last for only 18 months and 
that the program evaluation is due to EPA at the end of that period. 
Therefore, EPA believes that Congress intended for these programs to 
start up as soon as possible, which EPA believes should be on or before 
November 15, 1997, so at least six months of operational program data 
can be collected to evaluate the programs. EPA believes that in setting 
such a strict timetable for program evaluations under the NHSDA, 
Congress recognized and attempted to mitigate any further delay with 
the start-up of these programs. If New Jersey fails to start its 
program by November 15, 1997, the interim approval granted under the 
provisions of the NHSDA, which EPA believes allows the State to take 
full credit in its 15 percent plan for all the emission reduction 
credits in its proposal, will convert to a disapproval after a finding 
letter is sent to the State by EPA. Therefore, New Jersey would be 
required to include additional provisions in its SIP to provide the 
necessary emission credit reductions. Because the start date is not 
being imposed pursuant to a commitment to correct a deficient SIP under 
section 110(k)(4), the failure to start the program by this date will 
not convert the SIP approval to a disapproval automatically. EPA is 
imposing the start date under its general SIP approval authority of 
section 110(k)(3), which does not require automatic conversion; 
therefore, the approval will be converted to a disapproval only upon 
EPA's notification of the State by letter.
    EPA recognizes New Jersey's intent to start up the program on or 
prior to November 15, 1997 but no later than February 1, 1998.
    The program evaluation to be used by the state during the 18-month 
interim period must be acceptable to EPA. The Environmental Council of 
States (ECOS) group has developed such a program evaluation process 
which includes both qualitative and quantitative measures and has been 
deemed acceptable to EPA. The core requirement for the quantitative 
measure is that a mass emission transient test (METT) be performed on 
0.1% of the subject fleet, as required by the I/M Rule at 40 CFR 51.353 
and 51.366. EPA believes that METT evaluation testing is not precluded 
by the NHSDA, and therefore, is still required to be performed by 
states implementing I/M programs under the NHSDA and the CAA.
    As per the NHSDA requirements, this interim approval of the program 
will expire on December 14, 1998. A full approval of New Jersey's final 
I/M SIP revision, which will include the State's program evaluation and 
final adopted State regulations, is still necessary under sections 110, 
182, 184 and 187 of the CAA. After EPA's review of the State's 
submitted program evaluation and final regulations, any necessary 
additional rulemaking on New Jersey's SIP revision will occur. If the 
State's program evaluation demonstrates a shortfall, the State must 
find additional emission reductions.
    Specific requirements of the New Jersey enhanced I/M SIP and the 
rationale for EPA's proposed action are explained in the October 31, 
1996 notice and will not be restated here.

II. Public Comments/Response to Comments

    This section discusses the content of the comments submitted to the 
docket during the Federal comment period for the notice of proposed 
rulemaking, published in the October 31, 1996 Federal Register, and 
provides EPA's responses to those comments. Comments were received from 
only the State of New Jersey. Copies of the original comment letter, 
along with EPA's summary and response to comments, are available at 
EPA's Region II office at the address listed in the ADDRESSES section 
of this notice.

Comment--Functional Evaporative System Testing

    New Jersey commented that underlying uncertainties remain with the 
functional evaporative system pressure and purge testing procedures as 
indicated in a draft report by the New Jersey Institute of Technology 
and in EPA's November 5, 1996 guidance. The State also commented that 
these uncertainties are carried through the MOBILE model used to 
determine compliance with the I/M performance standard requirement.

Response to Comment

    On November 5, 1996, EPA issued a policy memorandum from Margo Oge, 
Director of EPA's Office of Mobile Sources (OMS), entitled ``I/M 
Evaporative Emissions Tests''. This memo outlines the difficulties 
related to pressure and purge functional testing, in practice in I/M 
programs. The memo provides that EPA will accept states' credit claims 
for the benefits from implementing purge testing, although many states 
are not expected to begin using this test for 12-18 months.
    On December 20, 1996, EPA issued an addendum to the November 5, 
1996 memo. This memorandum from Leila Cook, Regional and States Program 
Group Leader of EPA's OMS, serves to clarify the policy set forth in 
the November 5, 1996 memo. Specifically, this memo requires states to 
actually perform an available pressure test to receive credits claimed 
for such a program in their SIP revision. Full modeled credit (i.e., 
from the MOBILE model) for the performance of pressure testing is 
available only if a state performs an Arizona-like pressure test from 
the fill pipe and a separate gas cap check. States performing only a 
gas cap check will receive only 40% of the available MOBILE-modeled 
credits for pressure testing.

[[Page 26403]]

    EPA has acknowledged problems with the current purge test. 
Therefore, states such as New Jersey that have indicated that they will 
perform a purge test when one is available may continue to take 100% of 
the credit for the purge test, without actually performing such 
testing, until such time as EPA develops a viable purge test procedure. 
New Jersey has also indicated that they will be performing a gas cap 
check and an Arizona-like pressure test as part of the enhanced I/M 
program.

Comment--Implementation Date

    New Jersey anticipates that implementation of the enhanced I/M 
program will begin on or before November 15, 1997. However, full 
program start-up will probably not occur until early 1998. New Jersey 
believes that this schedule will allow them enough time to collect at 
least six months of operational data consistent with EPA guidance under 
the NHSDA.
    New Jersey cites section 348(c) of the NHSDA which states that 
interim approval expires 18 months from the date of final interim 
approval or on the date of final approval, whichever is earlier and 
that final approval will be granted after the state demonstrates that 
the I/M program credits are appropriate. New Jersey also cites the EPA 
December 12, 1995 guidance which states that to obtain at least six 
months of program operation to evaluate performance, programs must 
start as soon as possible but no later than 12 months after final 
interim approval.

Response to Comment

    As stated earlier in this notice, the NHSDA is clear that the 
interim approval shall last for only 18 months and that the program 
evaluation is due to EPA at the end of that period. This interim 
approval will expire on December 14, 1998. While EPA is in agreement 
with the State that start-up in early 1998 would allow New Jersey to 
collect sufficient data for program evaluation prior to the expiration 
of this conditional interim approval, EPA continues to believe that 
under the NHSDA the program should start up as soon as possible, which 
EPA believes is on or before November 15, 1997. If the State fails to 
start its program by this date, this interim approval will convert to 
disapproval after a finding letter is sent to the State, as addressed 
above.

III. Conditional Interim Approval

a. Major Deficiencies

    Under the terms of EPA's October 31, 1996 proposed conditional 
interim approval notice, the State was required to make commitments 
within 30 days to correct two major deficiencies with the I/M program 
SIP by dates certain. On November 27, 1996, New Jersey submitted a 
letter to EPA from Robert C. Shinn, Jr., Commissioner of the New Jersey 
Department of Environmental Protection, committing to satisfy the major 
deficiencies cited in the October 31, 1996 notice by dates certain 
specified in the letter. On April 22, 1997, Commissioner Shinn 
submitted a letter amending the date by which the required performance 
standard modeling would be submitted. A discussion of New Jersey's 
deficiencies follows below.
Enhanced I/M Performance Standard Modeling
    States must submit modeling demonstrating that the proposed I/M 
program achieves the required emission reductions by the relevant dates 
to determine whether the state I/M program meets the enhanced I/M 
performance standard. New Jersey did not include modeling results or 
assumptions in its submittal, but in its April 22, 1997 letter has 
committed to submit them no later than February 1, 1998.
Test Procedures, Standards and Equipment
    Written test procedures and pass/fail standards and equipment 
specifications shall be established and followed for each model year 
and vehicle type included in the I/M program. New Jersey's I/M program 
will be using a one-mode ASM emissions test for most of its fleet. New 
Jersey has been working with other states and the equipment 
manufacturers, in coordination with EPA, to develop their own 
procedures, specifications and standards for one and-two-mode ASM 
testing. EPA must receive the State's test procedures, standards and 
equipment specifications well before testing begins since finalization 
of these program elements is critical to the program beginning 
operation as planned. New Jersey committed to submit the final test 
procedures, standards and equipment specifications by January 31, 1997. 
EPA has received the State's final test equipment, specifications and 
standards. Therefore, this condition has been met.
    EPA is taking final conditional approval action upon the New Jersey 
I/M SIP, under section 110 of the CAA on the condition that the State 
performs and submits modeling results to EPA no later than February 1, 
1998. As discussed in detail later in this notice, this approval 
program is also being granted an interim approval for an 18-month 
period, under the authority of the NHSDA.

b. De Minimus Deficiencies

    In addition to the above, the State must correct eight minor, or de 
minimus, deficiencies related to the CAA requirements for enhanced I/M. 
Although satisfaction of these deficiencies does not affect the 
conditional interim approval status of the State's program, these 
deficiencies must be corrected in the final I/M SIP revision to be 
submitted at the end of the 18-month interim period:
    (1) New Jersey must submit proof that adequate funding will be 
available throughout the life of the program as per 40 CFR 51.354.
    (2) New Jersey must submit final requirements for inspection of 
fleet vehicles as per 40 CFR 51.356.
    (3) New Jersey's quality control measures must be in accordance 
with the requirements set forth in 40 CFR 51.359.
    (4) New Jersey must provide a detailed description of its motorist 
compliance enforcement program as per 40 CFR 51.361.
    (5) New Jersey must provide a description of the procedures that 
will ensure program quality; such as audits, and training requirements 
as set forth in 40 CFR 51.363.
    (6) New Jersey must provide final program requirements for data 
collection as set forth in 40 CFR 51.365.
    (7) New Jersey must provide final procedures for analyzing and 
reporting program data as per 40 CFR 51.366.
    (8) New Jersey must complete the public information program, 
including the repair station report card as set forth in 40 CFR 51.368.

IV. Explanation of the Interim Approval Process

    At the end of the 18-month period, the interim approval for this 
program, which satisfies the requirements of CAA section 182(c)(3), 
will automatically expire pursuant to the NHSDA. It is expected that 
the State will at that time be able to make a demonstration of the 
program's effectiveness using an appropriate evaluation criteria. EPA 
expects the State will have at least six months of program data that 
can be used for the demonstration. If the State fails to provide a 
demonstration of the program's effectiveness to EPA at the end of the 
18-month interim approval period, the interim approval will expire, and 
EPA may disapprove the emission credits claimed for the State's I/M SIP 
revision. If the State's program evaluation demonstrates a lesser 
amount

[[Page 26404]]

of emission reductions actually realized than were claimed in the 
State's previous submittal, EPA will adjust the State's credits 
accordingly, and use this information to act on the State's final I/M 
program.

V. Final Rulemaking Action

    EPA is conditionally approving New Jersey's enhanced I/M program 
based upon the conditions described in Section III(a) of this notice. 
Unlike the start date condition, which was addressed above, should the 
State fail to fulfill the performance standard modeling condition by 
February 1, 1998, this conditional interim approval will convert to a 
disapproval pursuant to CAA section 110(k)(4). In that event, EPA would 
issue a letter to notify the State that the condition has not been met, 
and the approval has converted to a disapproval. EPA clarifies that it 
is taking both a limited conditional approval of the New Jersey 
enhanced I/M program under section 110 which strengthens the SIP, as 
well as a conditional interim approval under section 348 of the NHDSA 
for purposes of compliance with the CAA section 182(c)(3). The limited 
approval of the enhanced I/M program will not expire at the time the 
interim approval of the 15 percent and 9 percent plans and the interim 
approval of the enhanced I/M program under the NHSDA expire. Thus, 
although an approved I/M program satisfying all of the requirements of 
section 182(c)(3) may no longer be in place, the I/M program will 
remain an enforceable SIP requirement. As explained above, the credits 
provided by the I/M program on an interim basis for those plans may be 
adjusted based on EPA's evaluation of the I/M program's performance.

VI. Further Requirements for Permanent I/M SIP Approval

    This approval is being granted on an interim basis for a period of 
18 months, in order for an evaluation of emission reduction credits, 
under the authority of section 348 of the NHSDA. At the end of this 
period, the interim approval of the emission credits will expire and 
the credits will be adjusted accordingly based on the evaluation. At 
that time, EPA must take action regarding the efficacy of the State's 
SIP under the authority of sections 110 and 182 of the CAA. EPA will 
evaluate New Jersey's I/M program based upon the following criteria:
    (1) The State has complied with all the conditions of its 
commitment to EPA,
    (2) EPA's review of the State's program evaluation confirms that 
the appropriate amount of program credit was claimed by the State and 
achieved with the program during the interim period,
    (3) Final program regulations are submitted to EPA, and
    (4) The State's I/M program meets all of the requirements of EPA's 
I/M rule, including those de minimus deficiencies identified in Section 
III(b) above as minor for purposes of interim approval.

    The State will be required to meet all conditions of this approval. 
In addition, the emission credits obtained will be evaluated for their 
adequacy for attainment, maintenance and other requirements of the CAA.

VII. Administrative Requirements

    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.

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 Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 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.
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the CAA 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, I certify 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 CAA, 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).
    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 this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), 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 
annual 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.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual 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 
pre-existing 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.

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

[[Page 26405]]

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 July 14, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule to 
conditionally approve the New Jersey I/M SIP, on an interim basis, 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) of the 
Administrative Procedures Act).

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.

    Dated: April 28, 1997.
William J. Muszynski,
Deputy Regional Administrator, Region II.

    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 FF--New Jersey

    2. Section 52.1580 is added to read as follows:


Sec. 52.1580   Conditional approval.

    (a) The State of New Jersey's March 27, 1996 submittal for an 
enhanced motor vehicle inspection and maintenance (I/M) program, as 
amended on November 27, 1996 and April 22, 1997, is conditionally 
approved based on certain contingencies, for an interim period to last 
18 months. If New Jersey fails to start its program by November 15, 
1997, the interim approval granted under the provisions of the NHSDA, 
which EPA believes allows the State to take full credit in its 15 
percent plan for all of the emission reduction credits in its proposal, 
will convert to a disapproval after a finding letter is sent to the 
State by EPA. If the State fails to submit to EPA the final modeling 
demonstrating that its program will meet the relevant enhanced I/M 
performance standard by February 1, 1998, the conditional approval will 
automatically convert to a disapproval as explained under Section 
110(k) of the Clean Air Act.
    (b) In addition to the above condition, the State must correct 
eight minor, or de minimus, deficiencies related to the CAA 
requirements for enhanced I/M. The minor deficiencies are listed in 
EPA's conditional interim final rulemaking on New Jersey's motor 
vehicle inspection and maintenance program published on May 14, 1997. 
Although satisfaction of these deficiencies does not affect the 
conditional interim approval status of the State's rulemaking, these 
deficiencies must be corrected in the final I/M SIP revision to be 
submitted at the end of the 18-month interim period.
    (c) EPA is also approving this SIP revision under Section 110(k), 
for its strengthening effect on the plan.

[FR Doc. 97-12628 Filed 5-13-97; 8:45 am]
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