[Federal Register Volume 62, Number 133 (Friday, July 11, 1997)]
[Rules and Regulations]
[Pages 37138-37144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18245]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-55-1-7335; FRL-5856-3]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: The EPA is granting conditional interim approval of a State
Implementation Plan (SIP) revision submitted by Texas. This revision
establishes and requires the implementation of an enhanced inspection
and maintenance (I/M) program in the Houston/Galveston and El Paso
areas and a basic I/M program in the Dallas/Fort Worth area. The effect
of this action is to conditionally approve Texas's I/M program for an
interim period to last 18 months, based upon the good faith estimate of
the program's performance. This action is being taken under section 110
of the Clean Air Act (Act) and section 348 of the National Highway
Systems Designation Act (NHSDA).
DATES: This interim final rule is effective on August 11, 1997.
ADDRESSES: 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: Mr. James F. Davis, Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7584.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Public Comments/Response to Comments
III. Interim Final Rulemaking Action
IV. Conditional Interim Approval
V. Further Requirements for Permanent I/M SIP Approval
VI. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Act
D. Submission to Congress & the General Accounting Office
E. Petitions for Judicial Review
I. Background
On October 3, 1996 (61 FR 51651), EPA published a Notice of
Proposed Rulemaking (NPR) for the State of Texas. The NPR proposed
conditional interim approval of Texas' I/M program, submitted to
satisfy the applicable requirements of both the Act and the NHDSA. The
formal SIP revision was submitted by Texas on March 14, 1996.
As described in that notice, 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 interim program
results at the end of that 18-month period, and to make a determination
as to the effectiveness of the interim program. Following this
demonstration, EPA will adjust any credit claims made by the state in
its good faith effort, 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 Congress intended for these programs to start
up as soon as possible, which EPA believes should be on or before
November 15, 1997, so that at least six months of operational program
data can be collected to evaluate the interim programs. The 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 this program. If Texas
fails to fully start its program according to this schedule, this
conditional interim approval granted under the provisions of the NHSDA
will convert to a disapproval after a finding letter is sent to the
state. Unlike the other specified conditions of this rulemaking, which
are explicit conditions under section 110(k)(4) of the Act and which
will trigger an automatic disapproval should Texas fail to meet its
commitments, the startdate provision will only trigger a disapproval
upon EPA's notification to the State by letter that the startdate has
been missed. This letter will not only notify Texas that this
rulemaking action has been converted to a disapproval, but also that
the sanctions clock associated with this disapproval has been triggered
as a result of this failure. Because the startdate condition is not
imposed pursuant to a commitment to correct a deficient SIP under
section 110(k)(4), EPA does not believe it is necessary to have the SIP
approval convert to a disapproval automatically if the startdate is
missed. The EPA is imposing the startdate condition under its general
SIP approval authority of section 110(k)(3), which does not require
automatic conversion. It should be noted that the State of Texas has
already started major elements of its program in all three program
areas.
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 short term qualitative and long term quantitative
measures, and this process has been deemed acceptable to EPA. The core
requirement for the long term quantitative measure is that a Mass
Emission Transient Test be performed on 0.1 percent of the subject
fleet, as required by the I/M Rule at 40 CFR 51.353 and 366.
Per the NHSDA requirements, this conditional interim rulemaking
will expire on February 11, 1999. A full approval of Texas final I/M
SIP revision (which will include Texas' 18-month program evaluation) is
still necessary under section 110 and under sections 182, 184 or 187 of
the Act. After EPA reviews Texas' submitted program evaluation and
other required elements for final approval, final rulemaking on the
Texas' I/M SIP revision will occur.
[[Page 37139]]
Specific requirements of the Texas I/M SIP and the rationale for
EPA's proposed action are explained in the NPR 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 3, 1996 Federal Register, and
provides EPA's responses to those comments. On November 18, 1996, EPA
granted a 60-day extension of the comment period which was requested by
four parties. The extended comment period closed on January 3, 1997.
Four sets of comments were received by the Region. The comments were
from the Texas Natural Resource Conservation Commission (TNRCC), the
Environmental Defense Fund (EDF), the Sierra Club (SC) and by the law
firm Bickerstaff, Heath, Smiley, Pollan, Kever, & McDaniel, L.L.P
(BHS). Copies of the original comment letters are available at EPA's
Region 6 office at the address listed in the ADDRESSES section of this
notice. The EPA has first grouped similar comments and summarized them,
followed by EPA's response to specific comments. For clarity, in some
cases EPA has provided background information within a comment on its
requirements or its proposed action relevant to Texas' SIP, prior to
summarizing the comment itself.
Comment--Legal Authority of Texas I/M Plan
The SC and BHS commented that the State program does not have
adequate authority to implement the program. The law firm BHS commented
that the State law (Senate Bill 178) the State is using to implement
the program is unconstitutional. The law firm BHS commented that a
written decision in favor of Texas is forthcoming and will be forwarded
to EPA when issued, thus EPA should not be considering approving the
State's program. The law firm BHS commented that even if Senate Bill
178 were constitutional it does not give the State authority to
implement major portions of its program including, reregistration
denial, enforcement of remote sensing, and test on resale provisions of
the program. Thus, EPA cannot approve the program based on the NHSDA
which requires that ``all'' authority be present for EPA to approve the
program. It is argued that EPA's proposal does not address whether the
State's submission meets the requirements of the NHSDA while other EPA
actions on NHSDA submittals do. The law firm BHS contends the NHSDA
only allows a brief window of 120 days for a submittal which is
required to include all authority. Since this window has already
passed, EPA cannot extend the deadline. The SC similarly noted that EPA
cannot postpone the deadline by using a conditional approval following
the Natural Resource Defense Council case of 1994.
Response to Comment
The EPA's proposal explicitly identified the lack of authority as a
deficiency which required correction by the imposition of major
conditions which if not fulfilled would convert the action to a
disapproval. Thus, EPA agrees that the State submittal does not meet
all of the requirements of the NHSDA and is deficient in this regard.
We also stated that the SIP contained enabling legislation that would
allow the State to implement ``most'' of its program and that the State
could get the legislative authority in the next legislative session. To
support the State's commitment on obtaining the additional required
authority the SIP included a Governor's Executive Order stating the
intention of the Governor to support the needed legislation in the 1997
legislative session. The Texas legislature meets only once every two
years and therefore obtaining the additional legislation four months
after passage of the NHSDA was impractical. Also, it is EPA's
understanding that the Texas legislature has recently passed
legislation during the 1997 session addressing legislative deficiencies
in the SIP. The EPA will be evaluating the legislation over the next
several months. The EPA is authorized to promulgate conditional
approvals under the Clean Air Act and does not believe the action
postpones the deadlines contained in the NHSDA. The NRDC case involved
postponing of a deadline by the use of a ``committal SIP'' which did
not include a substantive submittal of legislation, regulations, SIP
narrative, etc. Due to the substantive nature of the Texas submittal
EPA does not believe the submittal constitutes merely a ``committal
SIP.''
Texas has submitted a substantive I/M SIP, and has adequate legal
authority to adopt and implement that SIP. The SIP has several
deficiencies, which Texas has committed to remedy. It will require the
adoption of additional legislative authority to remedy the
deficiencies. The EPA believes it is authorized to conditionally
approve a substantive SIP submittal under the Act section 110(k)(4) in
these circumstances, and that such approval is consistent with the
holding of the court interpreting the Act section 110(k)(4), NRDC v.
EPA, 22 F.3d 1125, 1134 (D.C. Cir. 1994). The EPA further believes that
this action is consistent with the requirements of the NHSDA. The EPA
believes that so long as a state submits a substantative I/M SIP with
underlying statutory authority during the 120-day period specified in
the NHSDA, EPA can conditionally approve that SIP even if it contains
some deficiencies that require additional legislative authority to
remedy. Such authority must be obtained before EPA can give full final
approval to the I/M SIP.
Regarding the constitutionality of the State's authority, a Texas
Court ruled that the two laws creating the Texas Motorists' Choice
program, Texas Senate Bills 19 and 178, were in violation of both the
Texas and Federal Constitution. The Court ruled that those laws were an
unconstitutional ``taking'' and an unconstitutional interference with
contract, Tejas Testing Technologies I, et al, v. The State of Texas,
No. 95-1462 (126th Dist. Court, Travis County, Texas) (April 21, 1997).
The State has filed a Notice of Intent to Appeal the ruling. Texas
Rules of Appellate Procedure, Rule 47 and associated case law seem to
indicate that such a filing supersedes the finding of the lower court
pending determination by the Court of Appeals. See, Ammex Warehouse Co.
v. Archer, 381 S.W. 2d 478, 481 (Tex. 1964), Porth v. Currie, 613 S.W.
2d 534 (Tex. Civ. App., Austin 1981), and Texas Workers' Compensation
Commission v. Garcia, 893 S.W. 2d 504, 517 (Texas 1995). However, EPA
is not basing today's action on Senate Bill 19 and 178 because of the
uncertainty regarding the constitutionality of those laws after the
Court's ruling. In order to determine whether the program is supported
by adequate legislative authority, EPA reviewed the statute submitted
by Texas excluding the language added by Senate Bills 19 and 178. Based
on that review, EPA has determined that Texas has sufficient authority
to implement the program with the exception of remote sensing and
registration denial (as discussed in the conditions for final interim
approval).
Title 5 of the Texas Health and Safety Code, Section 382.037(a)
(Vernon's 1995) authorizes the promulgation of rules to ``establish,
implement and administer a program requiring emissions-related
inspections of motor vehicles to be performed at inspection facilities
consistent with the requirements of the Federal Clean Air Act.'' This
gives very broad authority to establish any type of vehicle inspection
[[Page 37140]]
program so long as that program is consistent with the Federal
requirements.
Enforcement of the program is authorized by Title 5 of the Texas
Health and Safety Code, Section 382.037(d), by a ``sticker-based''
program. As discussed elsewhere, a sticker-based program is not
acceptable without an adequate demonstration that the State's pre-1990
Act mechanism was more effective than its registration denial system.
Texas has not made such a demonstration, and either an adequate
demonstration must be submitted or authority for registration denial
must be submitted within one year to fulfill one of the conditions of
this approval. It is EPA's understanding that the Texas Legislature has
recently passed a law allowing for a registration denial program upon
EPA's finding that the State has not made a adequate demonstration that
sticker enforcement is more effective than registration denial. Section
382.037(n) authorizes audits to determine compliance, but was added by
the laws determined unconstitutional and, therefore, was not considered
by EPA. However, Sections 382.038(a) and 382.038(d) authorize the State
to pass appropriate regulations to conduct compliance audits.
Comment--Low Enhanced Performance Standard Issues
The TNRCC commented that although the Dallas/Fort Worth area is
only required to implement a basic I/M program the State submitted
modeling showing that the program also meets the low enhanced
performance standard. The SC and BHS commented that EPA cannot allow
the use of a ``low enhanced'' I/M program for areas such as Houston/
Galveston that need more effective I/M programs to meet air quality
goals. The law firm BHS cites EPA's proposed disapproval of the State's
original 15% Plan. They also note that EPA cannot approve the revised
15% Plan since it does not achieve the required reductions by 1996, and
that EPA cannot extend the deadline of the original November 15, 1993,
submittal date for a revision to the 15% Plan. The law firm BHS
commented that the revised program does not even start up prior to the
end of 1996, and notes the rising contribution of mobile sources to the
air quality problem in the area.
Response to Comment
The EPA agrees with the TNRCC's comment that the State's modeling
shows that the low enhanced performance standard is met in the Dallas/
Fort Worth area. However, the Dallas/Fort Worth area is only required
to implement a basic I/M program and all the elements of an enhanced I/
M program are not being implemented in the Dallas/Fort Worth program.
Therefore, EPA is approving the Dallas/Fort Worth program only as a
basic I/M program.
The EPA disagrees with the comment that the State is not eligible
for the low enhanced performance standard. While EPA proposed
disapproval of the State's original 15% Plan, the EPA has already
proposed an approval action on the State's revised 15% Plan. The Texas
I/M NPR stated that EPA would not finalize an interim action on the I/M
SIP unless an approval action was proposed on the 15% Plan which has
now been done. The I/M flexibility rules define eligibility and only
require that the State have an approved 15% Plan and not received
disapprovals on the other Rate of Further Progress or attainment plans.
Issues regarding the approval of the 15% Plan including late start up
dates for I/M programs are addressed in the proposed approval of the
State's revised 15% Plan. Those are issues relevant to approval of the
15% Plan and will not be further addressed in this notice on the I/M
plan. In the case of Texas, the State has already started most of the
major elements of its I/M Plan and no further reductions are possible
by the end of 1996 since this date already is historical. Also, States
may, and often do, make revisions to previously submitted SIPs as part
of the SIP process. Section 110 of the Act allows for and contemplates
revisions to SIPs.
The EPA agrees that mobile source pollution is a continuing and
significant source of pollution in the I/M nonattainment areas. The EPA
also believes that it may be necessary to expand the geographic
coverage or to improve effectiveness of the State's I/M Program in the
future. Additional emission reductions may be required in the Texas
nonattainment areas due to a continuing nonattainment status, or that
the reductions claimed as a ``good faith estimate'' are not achieved in
practice.
Comment--Geographic Coverage Requirements
The SC and BHS commented that the Beaumont/Port Arthur area should
be in the I/M program. The SC commented that the redesignation was not
completed and the area is an influence on the air quality of the
Houston/Galveston area. The law firm BHS commented that the 1990
urbanized area population for Beaumont/Port Arthur is 232,434 and
exceeds EPA's cutoff of 200,000.
The SC, BHS, and EDF commented that the Texas I/M program does not
adequately cover the entire urbanized area for Dallas/Fort Worth and
Houston/Galveston. The SC commented that remote sensing is not complete
coverage and incompletely evaluated for effectiveness. The law firm BHS
commented that exclusion of some of the urban population is allowed if
an equal number of residents is included and the State used vehicles
not residents in their analysis. The law firm BHS noted the uncertain
feasibility and effectiveness of remote sensing and the delay in the
State's data collecting phase of its remote sensing plan. The law firm
BHS also commented on the lack of enforcement authority for remote
sensing in the State's plan. The EDF commented that the exclusion of
the rapidly growing counties of Collin and Denton County will result in
dirtier air for the Region. The EDF commented that this exclusion will
result in the failure to inspect 147,000 commuting vehicles and an
additional 304,000 noncommuting vehicles.
Response to Comment
The Beaumont/Port Arthur area was reclassified from a serious to
moderate ozone nonattainment area on April 2, 1996 (61 FR 14496). While
the Beaumont/Port Arthur area is one moderate ozone nonattainment area
it is composed of at least two separate urbanized areas each with a
1990 urbanized area population of under 200,000. According to the
report entitled ``1990 Census of Population and Housing: Population and
Housing Unit Counts: Texas'' issued in March 1993 by the U.S. Bureau of
the Census, the 1990 population of the Beaumont urbanized area is
122,841. The 1990 population of the urbanized area population for Port
Arthur is 109,560. The I/M flexibility rule only requires that for
moderate ozone nonattainment areas outside the ozone transport region,
basic I/M programs be implemented in any 1990 Census-defined urbanized
area of 200,000 or more (40 CFR 51.350(a)(4)). Since the Beaumont/Port
Arthur area is a moderate area and contains no 1990 urbanized areas of
over 200,000, EPA does not require that I/M be implemented in the
Beaumont/Port Arthur nonattainment area.
The EPA agrees that the State's exclusion of counties in both the
Houston/Galveston area and the Dallas/Fort Worth area results in a less
effective I/M program which hinders each of the areas reaching
attainment of the National Ambient Area Quality Standard for ozone.
Specifically, the exclusion of heavily populated portions
[[Page 37141]]
of the nonattainment areas, such as portions of Collin and Denton
Counties, from the regular testing I/M program in the Dallas/Fort Worth
area in our view is hindering the State from reaching attainment of air
quality standards. However, in the proposed Federal Register notice
(FRN), EPA made allowance for the State's use of remote sensing to make
up deficiencies in the State's area of coverage plans. Nevertheless,
recognizing the uncertainty of the remote sensing program, EPA included
a provision in the proposed FRN that for permanent I/M SIP approval,
the remote sensing program must be demonstrated to be effective in
identifying and obtaining repairs on vehicles with high levels of
emissions, or the Texas I/M core program must be expanded to include
the entire urbanized area for both Dallas/Fort Worth and Houston. Also,
since I/M programs are designed to reduce emissions from vehicles, and
populations or persons do not directly equate to vehicle population,
EPA also allowed for an interpretation of its I/M rule which would
apply a ratio to the population shortfall to determine the minimum
number of vehicles required to be tested by the State from commuting
vehicles outside the I/M core program areas.
The EPA's proposal also identified the lack of authority for
enforcement of remote sensing as a deficiency which required correction
by the imposition of major conditions which if not fulfilled would
convert the action to a disapproval. We also stated that the State
could get the legislative authority in the next legislative session. To
support the State's commitment the SIP included a Governor's Executive
Order stating the intention of the Governor to support the needed
legislation in the 1997 legislative session. It is EPA's understanding
that the Texas legislature recently passed legislation for enforcement
of a remote sensing program.
Comment--Enforcement of Texas I/M Program
The TNRCC commented that the Texas Motorist Choice inspection
program is a sticker-based enforcement program with computer matching
enhancements. The State commented that it believes that it has
demonstrated that sticker-based enforcement is more effective than
registration denial. The State included a sticker survey from the I/M
areas which indicated that most vehicles (95 percent) had stickers
showing appropriate dates of compliance. The SIP also states that
unregistered vehicles range from 2 to 15 percent. The SC commented that
the lack of registration denial is a major inadequacy. The SC also
commented that the State's program to deter fraud and assure accuracy
is not adequate. The law firm BHS also commented that the State does
not have an effective enforcement system and does not have authority
for registration denial and had questions about exactly how the State's
plan would work. The law firm BHS argued that a sticker based program
without a demonstration of greater effectiveness with a vague undefined
threat of reregistration denial does not meet the requirements of the
Act. Also, BHS cited the EPA proposed disapproval for the District of
Columbia for its lack of similar but more comprehensive deficiencies in
its enforcement program. The District of Columbia program also did not
have authority for registration denial, and no penalty schedule
accompanying the SIP.
Response to Comment
The EPA's proposed approval was based upon the State commitment in
the SIP and specifically the commitment in the Governor's Executive
Order which specified the State's intention to support legislation for
the authority to enforce the program with reregistration denial. The
Clean Air Act and Federal I/M regulations specify that registration
denial must be the enforcement mechanism for a state unless an
alternative enforcement mechanism of a pre-1990 Act program is
demonstrated to be more effective. The demonstration is further
specified in the Federal I/M rule (40 CFR 51.361(b)). The State's
demonstration fails in relation to these requirements in two general
areas, the failure to tie stickers issued to tests given and more
accurate and substantiated data on the number of vehicles in compliance
with the registration requirements. The demonstration was also
deficient since it is required to be comprehensive, which the State's
current demonstration was not.
The EPA agrees that the lack of authority for enforcement through
registration denial is a major deficiency in the plan. The EPA's
proposal also identified the lack of authority for registration denial
as a deficiency which required correction by the imposition of a major
condition which if not fulfilled would convert the action to a
disapproval. We also stated that the State could get the legislative
authority in the 1997 legislative session. To support the State's
commitment the SIP included a Governor's Executive Order stating the
intention of the Governor to support the needed legislation in the 1997
legislative session. It is EPA's understanding that the Texas
Legislature has recently passed a law allowing for a registration
denial program upon EPA's finding that the State has not made a
adequate demonstration that sticker enforcement is more effective than
registration denial. The State's quality control and consumer
protection portions of the I/M plan were consistent with the I/M rule
(Secs. 51.360 and 51.368(b)). Regarding the District of Columbia's
proposed disapproval notice for enforcement deficiencies similar to the
Texas program, EPA was required to propose disapproval on this issue
because it did not have a commitment from the State to correct the
deficiencies in the District's plan. In the case of Texas, EPA had the
commitment in the Governor's Executive Order and the SIP narrative to
correct the major deficiencies and thus was able to propose conditional
interim approval of the plan.
Comment--Waivers in the Texas I/M Modeling
The TNRCC commented that, since the low income time extension is
not a waiver, it should not be required to be included in the projected
waiver rate.
Response to Comment
The EPA concurs with the State comment that the low income time
extension is not legally a waiver. However, the numbers of time
extensions granted by the State may impact the air quality benefits of
the program and should therefore be accounted for in the State's
modeling estimates if significant. If low income time extensions are
granted after a vehicle fails the emissions test, the emissions
characteristics of the vehicle for the purposes of emissions modeling
are identical to a vehicle that has received a waiver. If such time
extensions were granted prior to an initial test they should be
accounted for in the compliance rate estimates if significant.
Comment--Texas Good Faith Credit Estimates
The EDF commented that while the NHSDA removes EPA's 50 percent
credit discount for test-and-repair programs, it does not grant
presumptive equivalency between test-and-repair and test-only programs.
The SC also commented that the decentralized program fails to
demonstrate equivalency with the centralized program. The EDF commented
that TNRCC's claim of 100 percent effectiveness is not consistent with
other states implementing decentralized
[[Page 37142]]
programs and are not based on ``good faith estimates'' with a basis in
fact, but rather unsubstantiated assumptions. Additional features to
the program such as the electronically connected testing system may
increase effectiveness but do not substantiate the State's claim. The
law firm BHS similarly also commented that the State's credit estimates
are not made in good faith. The law firm BHS commented that the
estimates must have a ``basis in fact'' and cites EPA's position
contained in the I/M flexibility amendments that all the data gathered
from previously running I/M programs justify EPA's previously imposed
50 percent credit discount for test-and-repair programs. The law firm
BHS also notes EPA's December 12, 1995, guidance on the NHSDA, which
suggested that good faith estimates could be based upon innovative
program designs where no data, per se, exists but where the State can
make a reasonable argument that the level of enforcement and oversight,
and the innovative features included in the program to prevent or
eliminate improper testing will together achieve the claimed
reductions. In its guidance, EPA stated examples of such innovative
designs and BHS commented that the State's program did not include any
of these examples.
Response to Comment
The EPA agrees that the NHSDA does not grant presumptive
equivalency between test-only and test-and-repair programs, but rather
it calls upon the State to make a ``good faith estimate'' which has a
basis in fact of its program's effectiveness. The EPA is required by
the NHSDA to allow for such an estimate on an interim basis. The NHSDA
further specifies that EPA shall grant final approval to a program if
data collected from the operation of the program demonstrates the
credits are appropriate and the revision is otherwise in compliance
with the Act. The EPA agrees that a claim of 100 percent credit for the
test-and-repair network may be difficult to justify in the State's
program demonstration for final full approval. However, EPA believes it
is appropriate under the NHSDA to grant interim approval to the credit
based on the State's good faith estimate until the data collected from
the program is analyzed by the State and EPA.
In the State's response to comment from its public comment period
on this issue, the State cited the electronic data link, the use of
remote sensing technology, the test-on-resale component of the program,
recognized repair technicians, and the testing of heavy duty vehicles
as measures to be implemented which would help to improve the
effectiveness of the program. The EPA believes that of these items the
electronic data link, use of remote sensing technology, and the
recognized repair technician program offer the greatest potential of
substantially improving the program's effectiveness with regard to
network design. The EPA believes that credit obtained from these
enhanced features provides a basis in fact for the interim credit
claimed under the NHSDA. Thus, EPA will allow for the State's estimates
to be used on an interim basis. Permanent SIP approval of the credit
claim however, will be subject to the data collected during the program
demonstration.
Comment--Contingency Measures
The EDF commented that contingency measures should be identified
and immediately implemented in the likely event that the TNRCC will not
achieve the emission reductions claimed.
Response to Comment
The 15% Plan contains contingency measures equal to at least 3
percent reductions for each area required to submit a 15% SIP. If the
State's reduction estimates are not achievable by Texas, the State
would have to implement contingency measures in the event that a
shortfall exists in the State's 15% Plan. In addition, if the State's
I/M plan achieves less than the reductions required to meet the
appropriate I/M performance standards corrections to the State's I/M
plan would be required by EPA. Neither the Act nor the NHSDA require
contingency measures to support interim approval of an I/M program. If
credit is not demonstrated through the program evaluation, additional
control strategies or I/M program enhancements have to be adopted to
support final full approval.
Comment--Compliance Rate of Texas I/M Program
The EDF commented that a 96 percent compliance rate will be
difficult to achieve. The EDF cites an estimate by Texas Department of
Transportation that as many as 15 percent of the vehicles may fail to
meet registration requirements and thus effectiveness of the Texas
program is overstated.
Response to Comment
The EPA agrees that a 96 percent compliance rate may overstate the
State's actual I/M effectiveness. However, the State's estimates on
vehicles not meeting registration requirements is given in the SIP as
between 2 and 15 percent. Also, the State's SIP includes provisions to
help improve the current compliance rate such as the real time data
link of all test stations, remote sensing to catch vehicles with high
emissions, and computer matching of testing and registration data bases
to supplement an improved sticker enforcement program. These
enhancements hold the potential to make the State's enforcement
mechanism comparable to traditional registration denial. The EPA
assumes that a well-run registration denial based program will achieve
a compliance rate of 96 percent based upon prior experience with such
programs. For SIP purposes, states are required to commit to a
compliance rate which will be used in their modeling. States must also
commit to corrective actions should the actual compliance rate fall
below the modeled level.
Comment--Adequate Oversight of Texas I/M Program
The law firm BHS commented that the State's SIP does not provide
adequate oversight to protect against improper testing which is cited
as inherent in decentralized I/M programs. The law firm BHS also argues
that Texas's plan relies on an unproven data link and an inadequate
number of auditing staff. The law firm BHS also notes that the State
oversight test fee is only $1.75 per inspection, while in California
$7.00 is needed per inspection. Thus, a logical conclusion is that
Texas is underfunding its program.
Response to Comment
The EPA rules do not specify the exact oversight test fee or number
of employees each State is required to use in support of its I/M
program. Rather each State is required to assess and use sufficient
resources needed to support the program consistent with the SIP, and
identify the dedicated resources for I/M program implementation. The
EPA believes the State is in a better position to assess its specific
resource needs and fulfill EPA's general resource requirements. The EPA
believes that the oversight resources cited in the Texas SIP are
sufficient for the purposes of interim approval. As the Texas program
operates and undergoes evaluation, EPA will be better able to assess
the adequacy of the State resources. For example, the State commits in
the SIP to meet the numbers of EPA required covert and overt audits and
reporting requirements. If the State is unable to meet the EPA
requirements contained in the SIP, EPA could require the State to
correct the deficiency.
[[Page 37143]]
III. Interim Final Rulemaking Action
The EPA is conditionally approving the Texas I/M program as a
revision to the Texas SIP, based upon certain conditions. This
conditional approval satisfies the requirements of section 182 and the
NHSDA for low enhanced and basic I/M programs. For the purposes of
strengthening the SIP, EPA is also giving a limited approval under
section 110 if the State fulfills all of its commitments within 12
months of this final rulemaking. This limited approval under section
110 will not expire at the end of the 18 month interim period. Thus,
although an approved I/M SIP satisfying the requirements of section 182
may no longer be in place after the termination of the interim SIP
approval period provided by the NHSDA, this program will remain a part
of the Federally enforceable SIP. Should the State fail to fulfill the
conditions by the deadlines contained in each condition, the latest of
which is no more than one year after the date of EPA's final interim
approval action, this conditional interim approval will convert to a
disapproval pursuant to the Act section 110(k)(4). In that event, EPA
would issue a letter to notify the State of Texas that the conditions
had not been met and that the approval had converted to a disapproval.
IV. Conditional Interim Approval
Under the terms of EPA's October 3, 1996, proposed interim
conditional approval rulemaking, the State of Texas was required to
remedy three major deficiencies with the I/M program SIP (as specified
in the NPR), within twelve months of final interim approval. The
State's commitment to support the additional needed legislation was to
be carried out in Texas's 75th Legislative Session. The EPA will be
evaluating the I/M legislation that was passed during this session. As
discussed in detail later in this notice, this approval is being
granted on an interim basis, for an 18-month period under authority of
the NHDSA.
The major conditions for approvability of the SIP are as follows:
Texas must obtain all of the legal authority needed to implement
its program. The specific authority needed was outlined in EPA's
proposed approval action (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 legal authority identified in the Executive Order
includes: (1) The denial of reregistration 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 is aware that the State of Texas has expressed plans to
remove the ``test-on-resale'' provisions from their I/M plan. In
addition, EPA has recently received a SIP submission to remove the
``test-on-resale'' provision from the SIP. The EPA will be evaluating
the submission for completeness and approvability. Regarding the
``test-on-resale'' provisions of the State plan, EPA included a
condition for obtaining legal authority to implement this provision
based on the requirement in the NHSDA's that states have all of the
statutory authority needed for program implementation. While the
``test-on-resale'' provision was not required by the Act or the Federal
I/M rule, the provision was intended to improve program effectiveness
and consumer protection. Texas has stated that certain program changes
have made the program unnecessary and that the State is therefore
taking no credit for this particular element. The EPA agrees with the
State's assessment of the creditable impact of such a component. While
the EPA still believes that the ``test-on-resale'' authority may prove
to be beneficial for consumer protection and program effectiveness
should loaded mode testing develop as the program proceeds, EPA will
not require the State to obtain authority for and implement the ``test-
on-resale'' provisions of the current State plan if the State submits a
SIP revision.
V. Further Requirements for Permanent I/M SIP Approval
This approval is being granted on an interim basis for a period of
18 months, under the authority of section 348 of the National Highway
Systems Designation Act of 1995. At the end of this period, the
approval will lapse. At that time, EPA must take final rulemaking
action upon Texas' SIP, under the authority of section 110 of the Act.
Final approval of Texas' plan will be granted based upon the following
criteria:
(1) Texas has complied with all the major conditions of its
commitment to EPA,
(2) The EPA's review of Texas' program evaluation confirms that the
appropriate amount of program credit was claimed by the State of Texas
and achieved with the interim program,
(3) Final Texas Department of Public Safety program regulations are
submitted to EPA, and
(4) The Texas I/M program meets 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.
(5) The remote sensing program proves to be effective in
identifying and obtaining repairs on vehicles with high levels of
emissions, or the Texas I/M core program area is expanded to include
the entire urbanized area for both Dallas/Fort Worth and Houston.
VI. 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
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility Analysis
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
prepares a regulatory flexibility analysis assessing the impact of any
proposed or final rule on small entities. See 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 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, 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 Act, preparation of a 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. Union Electric Co. v. U.S. EPA, 427
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
[[Page 37144]]
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,
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 promulgated 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.
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 September 9, 1997.
Filing a petition for reconsideration by the Administrator of this
interim final rule to conditionally approve the Texas 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, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Dated: July 1, 1997.
Jerry Clifford,
Acting Regional Administrator.
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 52.2310 is added to read as follows:
Sec. 52.2310 Conditional approval.
The State of Texas' March 14, 1996, submittal for an motor vehicle
inspection and maintenance (I/M) program, is conditionally approved
based on certain contingencies, for an interim period to last eighteen
months. If the State of Texas fails to fully start its program by
November 15, 1997, at the latest, this conditional approval will
convert to a disapproval after EPA sends a letter to the State. If the
State of Texas fails to satisfy the following conditions within 12
months of August 11, 1997, this conditional approval will automatically
convert to a disapproval as explained under section 110(k) of the Clean
Air Act. The conditions for approvability are as follows:
Texas must obtain all of the legal authority needed to implement
its program. The specific authority needed was outlined in EPA's
proposed approval action and was identified in a February 27, 1996,
Governor's Executive Order that was submitted as part of the Texas I/M
SIP. The legal authority identified in the Executive Order includes:
The denial of reregistration of vehicles that have not complied with I/
M program requirements; the establishment of a class C misdemeanor
penalty for operating a gross polluting vehicle in a nonattainment
area; and 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 (or regarding the third major condition,
the removal of the test-on-resale program element from the SIP). Texas
has committed to support additional needed legislation in Texas's 75th
Legislative Session. Should Texas fail to fulfill these conditions by
the end of the 75th Legislative Session, this approval will convert to
a disapproval. Texas must also fully start its I/M program by November
15, 1997, or this action will covert to a disapproval.
[FR Doc. 97-18245 Filed 7-10-97; 8:45 am]
BILLING CODE 6560-50-P