[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Rules and Regulations]
[Pages 40938-40945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20219]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD037-3015; FRL-5864-8]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Maryland; Enhanced Motor Vehicle Inspection and Maintenance 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final conditional approval.

-----------------------------------------------------------------------

SUMMARY: EPA is granting conditional approval of a State Implementation 
Plan (SIP) revision submitted by the State of Maryland. This revision 
establishes and requires the implementation of an enhanced motor 
vehicle inspection and maintenance (I/M) program in the counties of 
Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, 
Harford, Howard, Montgomery, Prince George's, Queen Anne's, Washington, 
and the City of Baltimore. The intended effect of this action is to 
conditionally approve the Maryland enhanced motor vehicle I/M program. 
EPA is conditionally approving Maryland's SIP revision based on the 
fact that: Maryland's SIP is deficient in certain aspects with respect 
to the requirements of the Act and EPA's I/M program regulations, and 
Maryland has made a commitment in a letter, dated December 23, 1996, to 
work with EPA to address and correct all deficiencies as necessary to 
ensure full compliance with I/M requirements by a date certain within 
one year from September 2, 1997. This action is taken under section 110 
of the 1990 Clean Air Act (CAA, or the Act).

EFFECTIVE DATE: This final rule is effective on September 2, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building,

[[Page 40939]]

Philadelphia, Pennsylvania 19107 and the Maryland Department of the 
Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti at 215-566-
2174 or Jeffrey M. Boylan at 215-566-2094 at the EPA Region III address 
above, or via e-mail at [email protected]. or 
[email protected]

SUPPLEMENTARY INFORMATION:

I. Background

    On October 31, 1996, (61 FR 56183), EPA published a notice of 
proposed rulemaking (NPR) for the State of Maryland. The NPR proposed 
conditional approval of Maryland's enhanced inspection and maintenance 
program, submitted on July 11, 1995 and amended on March 27, 1996, by 
the Maryland Department of the Environment (MDE). A description of 
Maryland's submittal and EPA's rationale for its proposed action were 
presented in the NPR and will not be restated here.

II. Public Comments/Response to Public Comments

    EPA received comments from two citizens, and from the Maryland 
Department of the Environment. The individual comments are listed 
below, followed by EPA's response.
    Comment #1: One citizen disagreed with the idea of car emission 
testing in general, stating that he thought that money budgeted to EPA 
could be better spent elsewhere.
    Response #1: EPA maintains that enhanced vehicle emission 
inspection programs, such as the one designed by Maryland, are one of 
the most cost-effective air pollution control technologies available 
today. Mobile sources contribute significantly to the ozone 
nonattainment problem in the State of Maryland, and citizens can 
contribute to improving air quality by keeping their vehicles well 
maintained. The Vehicle Emissions Inspection Program, or VEIP, 
developed by Maryland will help decrease the amount of ozone-forming 
pollutants in the state at a modest cost to the consumer. 
Administration and implementation of the VEIP is funded at the state 
level, from transportation funding and from the collection of 
inspection fees by the state and its contractor. In addition, vehicle 
testing is required by the Clean Air Act for serious and severe ozone 
nonattainment areas, such as those in Maryland.
    Comment #2: Another citizen commented that Maryland's VEIP should 
be delayed until inspection & maintenance programs in the neighboring 
states of Pennsylvania, Virginia, Delaware, and West Virginia are put 
into effect.
    Response #2: Under the Clean Air Act (the Act), Pennsylvania, 
Virginia and Delaware were all originally required to develop and 
implement inspection & maintenance programs similar to the program 
developed in Maryland as of 1995. West Virginia is not currently 
required to implement an inspection & maintenance program under the 
requirements of the Act since the entire state has met the national 
ambient air quality standards for ozone and carbon monoxide.
    Pennsylvania, Virginia, and Delaware are all moving forward with 
inspection & maintenance programs and each of these states has 
submitted I/M program revisions to their respective State 
Implementation Plans, as required by the Act. EPA has issued final 
rulemakings granting conditional, interim approvals to Pennsylvania and 
Virginia's I/M plans (PA published on January 28, 1997 at 62 FR 4004; 
and VA published on May 15, 1997 at 62 FR 26745), and Delaware received 
a final conditional approval for its plan on May 19, 1997 at 62 FR 
27195. Programs in Pennsylvania and Virginia are required to start by 
November 1997 under the terms of the relevant conditional approvals. 
EPA anticipates full start-up of both programs in October of 1997. 
Delaware's I/M program enhancements have been implemented since January 
of 1995.
    The following comments were submitted by MDE. In those places where 
clarification or background on a comment is necessary in order to 
understand the comment, EPA has summarized what the state is required 
to do as a condition of the rulemaking:
    Comment #3: In the notice of proposed rulemaking, EPA cited a 
deficiency under 40 CFR 51.350 regarding the interpretation of 
Maryland's enabling legislation to run the inspection & maintenance 
program. As a condition for approval, EPA stated that Maryland must 
either provide an opinion from the State Attorney General's Office that 
offers the State's interpretation on the sunset date as being no 
earlier than November 15, 2005; or in the absence of such an opinion, 
provide EPA with new legislative authority that allows for such an 
extended sunset date for the program.
    MDE commented that it maintains that legal authority exists for the 
program to continue for so long as is required by federal law, and that 
the sunset provision allows for the State to revisit the program and 
enact any needed legislative actions at the time of program extension. 
However, MDE has committed to asking the Attorney General's Office for 
a confirmation of the matter.
    Response #3: Despite MDE's comment, EPA still needs confirmation 
from the State's Attorney General on this subject, as conditioned in 
the notice of proposed rulemaking. As specified in the notice, if the 
Attorney General, the state official authorized to interpret state law, 
does not hold a similar interpretation of the statute, new legislative 
authority will be required.
    Comment #4: MDE commented that EPA and MDE need to reach agreement 
on whether all of the procedures and assumptions used in Maryland's 
modeling demonstration, for fulfillment of the requirements under 40 
CFR 51.351 of the I/M rule, were appropriate and consistent with EPA 
regulations and guidelines. MDE may require clarification on some 
issues since EPA policy has been changing in response to evolving 
technology (e.g., recent developments in evaporative system testing). 
Maryland expects confirmation that I/M modeling and program 
requirements are being equitably applied to all states.
    Response #4: EPA will continue to work with MDE with regard to the 
appropriate assumptions and inputs for the modeling of the performance 
standard demonstration. For clarification regarding EPA's policy on 
evaporative testing, MDE should refer to guidance issued on November 5, 
1996, entitled, I/M Evaporative Emissions Tests, and December 23, 1996 
guidance, entitled, I/M Evaporative Emissions Tests--An Addendum, which 
outline EPA's current testing and modeling methodologies.
    EPA hereby confirms that I/M program and modeling requirements are 
being equitably applied to all states, and further verifies that 
Maryland is not being held to a higher standard for purposes of 
modeling the program performance standard.
    Comment #5: MDE will provide an explanation of how subject vehicles 
in the program area are identified. MDE also requests clarification and 
guidance from EPA on the requirements for identification of vehicles 
routinely operated in, but not necessarily registered in the program 
area.
    Response #5: EPA anticipates clarification from MDE as to how 
vehicles operating on Federal Facilities will be identified, and the 
protocol that

[[Page 40940]]

will be used by the State in order to assure that vehicles operating on 
federal installations are covered by the program. In addition, EPA will 
provide MDE with additional guidance on the identification of other 
vehicles routinely operated, but not registered in the program area 
(i.e. rental vehicles, fleet vehicles, etc).
    Comment #6: MDE commented that its regulations specifically 
prohibit the inspection contractor from performing emissions-related 
repairs. Since the inspection contractor is the only entity performing 
initial tests in Maryland, the State believes this requirement has been 
satisfied. Further, Maryland questions the applicability of this 
requirement to a centralized I/M program.
    Response #6: Under 40 CFR 51.357 of the I/M rule, initial tests 
must be performed without repair or adjustment at the inspection 
facility, prior to the test. EPA agrees with MDE's comment, and 
believes that since the inspection contractor is prohibited from 
performing emissions-related repairs under the State's regulation, that 
this requirement of the federal regulation has been satisfied.
    Comment #7: Also under 40 CFR 51.357, EPA has conditioned approval 
of the I/M program on MDE's providing EPA with all applicable State 
regulations addressing the testing of vehicles with switched engines, 
and vehicles with no certified engine configuration. MDE commented that 
its State's laws and regulations prohibit tampering and the applicable 
sections will be provided to EPA confirming that this section of the 
federal I/M rule has been fulfilled.
    Response #7: Based on Maryland's response, no changes are necessary 
to this part of the condition. EPA anticipates documentation from the 
state to be provided. EPA reiterates that the State should specifically 
delineate the areas of its anti-tampering laws and regulations that 
address engine switching and testing of vehicles with no certified 
engine configuration.
    Comment #8: Under 40 CFR 51.360, EPA asked Maryland to fully 
document the criteria that will be used in the State for granting 
hardship exemptions or extensions for the program. MDE commented that 
Maryland will continue its current practice of granting short 
extensions for persons whose financial situations do not allow for 
repairs to be conducted immediately. Maryland will provide a 
description of this practice to EPA.
    Response #8: EPA accepts MDE's above explanation as sufficient for 
fulfilling this condition, so long as a ``short'' extension period is 
clearly defined and reasonable to EPA. EPA awaits MDE's description of 
its practice, consistent with this response.
    Comment #9: MDE will provide EPA with a description of Maryland's 
program to handle out-of-state exemptions, and MDE's mechanism to 
enforce vehicle transfer requirements when motorists move into the I/M 
area. MDE will also provide documentation on the citing of motorists 
for noncompliance with the vehicle registration requirement. MDE also 
reiterated its need for further guidance from EPA on how to identify 
vehicles operating in, but not registered in an I/M area.
    Response #9: EPA anticipates the documentation referred to by MDE 
for out-of-state exemptions, and for noncompliance citations. Please 
see Comment 5 for EPA's response on MDE's guidance request.
    Comment #10: MDE will provide EPA with clarification on the State's 
practice of vehicle impoundment when a motorist is cited for driving 
with a suspended registration.
    Response #10: EPA anticipates this documentation.
    Comment #11: MDE commented that Maryland will continue to use its 
system of month/year registration stickers as a visible means of 
compliance with registration in the State. MDE will alert EPA if any 
changes to this procedure occur in the future.
    Response #11: EPA accepts MDE's discussion on this procedure, and 
no further action is required of MDE with respect to this aspect of the 
condition.
    Comment #12: MDE requests additional information and guidance from 
EPA as to exactly what exemption triggering elements need examination.
    Response #12: EPA needs confirmation from MDE that any exemptions 
that would allow vehicles to by-pass an inspection test, such as the 
diesel exemption and the electric car exemption, are either checked by 
confirmation of the VIN, or by physical examination of the vehicle. If 
VIN records cannot confirm exemption status of the vehicle, MDE should 
confirm the exemption by physically examining the vehicle before the 
exemption is granted.
    Comment #13: MDE questions the applicability of some or all of the 
requirements under 40 CFR 51.362 of the federal I/M rule to a 
registration-based enforcement program. EPA has asked Maryland to 
demonstrate that an acceptable enforcement program exists, and that 
this program should include the procedures used for auditing the 
program and a penalty schedule for missing documentation from the 
program's inspection stations.
    Response #13: EPA views the requirements under this section as 
appropriate and reasonable measures that states are required to 
implement in both centralized and decentralized I/M programs. The 
intent of this section of the I/M rule is to control and eliminate 
fraudulent acts by those most closely responsible for implementation of 
the I/M program. In Maryland's specific situation, these requirements 
are meant to provide another means of verifying proper conduct by the 
State's contractor, and its employees, who are responsible for dealing 
with customers in the inspection lanes. EPA expects that Maryland will 
fulfill this condition, as described in the NPR.
    Comment #14: MDE commented that it has instituted an auditing 
program that is likely the costliest and strictest in the nation. MDE 
will provide a description to EPA.
    Response #14: EPA anticipates MDE's description of its auditing 
program.
    Comment #15: MDE will review its enforcement authority under its 
contract with the inspection contractor and provide EPA with 
information regarding the penalty structure set up to make sure the 
contractor is in compliance with the State's regulations.
    Response #15: EPA anticipates this documentation from the State.
    Comment #16: Maryland will ensure that the inspector certification 
program includes recertification requirements. Maryland proposes to 
accomplish this administratively, rather than by adopting regulations.
    Response #16: EPA accepts Maryland's proposal for fulfilling this 
requirement; however, MDE must provide EPA with the administrative 
procedures manual, or description of this practice as part of the SIP 
support material, in order to comply with this requirement for approval 
purposes. Recertification need not be done through regulation, but must 
be an explicit, enforceable SIP requirement.
    Comment #17: In response to EPA's condition under 40 CFR 
Sec. 51.368, Maryland will review the State provision for protection of 
whistle blowers and provide the information to EPA. With regard to 
public complaints, Maryland is very responsive to all complaints 
received and provides prompt investigation and corrective action as 
required. The State will document this aspect of the program in the 
form of a complaint response plan.
    Response #17: EPA anticipates MDE's response to this condition.
    Comment #18: MDE commented that a copy of the final regulation 
revision

[[Page 40941]]

and documentation of the public hearing process will be submitted to 
EPA.
    Response #18: EPA anticipates receipt of this documentation.
    Comment #19: MDE commented that confounding factors in the State 
could potentially affect the current program start-up schedule, 
previously slated for June 1, 1997.
    Response #19: EPA recognizes that potential problems with the 
State's program and its contractor may affect timely implementation of 
the program. As is stated in the NPR, Maryland must start mandatory 
testing of all subject vehicles as soon as possible or by November 15, 
1997 at the latest.
    Comment #20: Maryland does not understand the rationale for 
requiring a county-by-county analysis of the performance standard. MDE 
states that the federal I/M rule requires that ``Areas shall meet the 
performance standard for the pollutants which cause them to be subject 
to enhanced I/M requirements.'' Since its inclusion in the Ozone 
Transport Region causes Maryland to be subject to enhanced I/M 
requirements, Maryland believes that the EPA rule should be interpreted 
to treat the I/M counties as one area in calculating emissions factors 
relative to the performance standard.
    Response #20: EPA agrees with MDE's interpretation of this 
requirement, and will allow MDE to submit an amalgamated performance 
standard analysis.
    Comment #21: In the Technical Support Document, EPA explained that 
MDE must use the default compliance rate of 96% for modeling purposes, 
or provide EPA with documentation supporting the 100% rate used in its 
current analysis. MDE responded that it believes documentation 
supporting a compliance rate greater than 96% can be provided to EPA.
    Response #21: EPA welcomes such supporting documentation from the 
State, and advises MDE to use whatever the appropriate compliance rate 
is, as supported by State-generated evidence.
    Comment #22: Maryland commented that it believes that it followed 
EPA guidance in calculating RSD reductions. Maryland does not know of 
any requirement to ``subtract out'' the minimum RSD component in 
calculating RSD credits for an I/M program.
    Response #22: MDE should refer to EPA's guidance on RSD credit 
issuance, User Guide and Description for Interim Remote Sensing Program 
Credit Utility. As is stated in this guidance, programs can only 
receive extra credit for a remote sensing component if the State's 
program goes above and beyond what is already required in the federal 
I/M rule. EPA is not requiring MDE to ``subtract out'' the minimum RSD 
component. Rather, EPA is stating that additional credit for a remote 
sensing program will only be granted if the State follows the EPA 
guidance and institutes testing above and beyond what is already 
required in the federal I/M rule. A state such as Maryland, that is 
only complying with the minimum on-road testing requirements, as 
explained at 40 CFR 51.371, is not eligible for more credit under the 
performance standard. Should MDE chose to expand its RSD component, 
additional credit could be claimed, as explained in the above-named 
guidance document.
    Comment #23: MDE commented that it commits to adopting and using 
EPA non-invasive pressure testing procedures when they become 
available, and MDE will therefore take full credit for pressure testing 
in the performance standard. MDE will revise the SIP revision language 
to reflect this commitment.
    Response #23: In June of 1996, EPA issued draft technical guidance 
which included draft procedures and specifications for a fuel-fill pipe 
pressure test. EPA will soon issue final, revised technical guidance on 
the fuel-fill pipe pressure procedures, and expects that Maryland will 
adopt this test under the above referenced commitment, and use this 
``non-invasive'' procedure to test the integrity of the vehicle's fuel 
system. MDE should refer to the High-Tech I/M Test Procedures, Emission 
Standards, Quality Control Requirements, and Equipment Specifications: 
IM240 and Functional Evaporative System Tests, (Revised Technical 
Guidance, DRAFT), dated June 1996, the November 5, 1996 memo from Margo 
Oge, I/M Evaporative Emissions Tests, and the December 23, 1996 memo 
from Leila Cook, I/M Evaporative Emissions Tests--An Addendum. EPA also 
cautions the state that the full pressure test must be in place for at 
least one full test cycle before the evaluation year, in order for MDE 
to take credit for 100% pressure credit in modeling the performance 
standard.
    Comment #24: MDE would like clarification from EPA as to whether 
the requirements of 40 CFR 51.355--Test Frequency & Convenience--have 
been met. It is noted that EPA did not cite any deficiencies in the NPR 
for this section, however, the TSD did include a discussion on 
Maryland's enforcement system safeguards, and the need for further 
action by the state with respect to the penalty for noncompliance with 
the program.
    Further, MDE commented that it is unclear as to whether EPA expects 
MDE to correct another deficiency cited in the TSD under this section, 
but not in the NPR. In the TSD, EPA stated that it was unclear from 
Maryland's regulations whether or not the inspection contractor is 
required to give out-of-cycle inspections to those other than used 
vehicle dealers, or new residents of the State. This was cited as a 
deficiency in the TSD, but not the NPR.
    Response #24: As is mentioned in the TSD discussion on this 
section, this problem is also addressed under the Motorist Compliance 
Enforcement Section--40 CFR 51.361. In the NPR, EPA chose not to 
duplicate conditions relating to the same failure, even though the TSD 
may have discussed the same problem under multiple sections. EPA does 
have a condition relating to the cited failure on enforcement 
safeguards and penalties (as discussed in the TSD and reiterated by MDE 
in its comment letter), however, MDE should address this deficiency 
under the Motorist Compliance Enforcement Section.
    With respect to out-of-cycle testing, EPA did not place a condition 
on the State to make a correction for this TSD-cited deficiency. 
Furthermore, EPA here clarifies that the TSD erroneously stated that 
provisions need to be made to test these types of vehicles. In fact, 
EPA's regulation requires only that stations be required to adhere to 
regular testing hours and to test any subject vehicle presented for a 
test during its test period. EPA believes this requirement has been met 
by the State's SIP revision.
    Therefore, for the purposes of this rulemaking, MDE does not have 
any conditions placed on the State under 40 CFR 51.355, and no remedy 
is required by the State under this section.
    Comment #25: MDE has requested clarification of the requirements 
under 40 CFR 51.356 for SIP approval. Specifically, clarification is 
requested regarding the I/M rule requirement that the program provide 
for allowing inspections of vehicles registered in other program areas, 
and for issuance of certificates of compliance or waiver.
    Response #25: As stated in the TSD, EPA could not find any 
provisions in the SIP that explicitly allow for inspections of vehicles 
outside of the program area, and for the issuance of certificates of 
compliance or waiver. However, since EPA understands that Maryland is 
investigating the idea of reciprocity with surrounding states for 
purposes of compliance with the program requirements, EPA assumes that 
Maryland intends on extending the

[[Page 40942]]

option of out of state inspections to those requesting it. For the 
purposes of rulemaking, EPA has not placed any conditions on the State 
therefore, with respect to this component of the I/M program at this 
time. If however EPA discovers problems with the reciprocity issue in 
the future, EPA will commence a SIP call to remedy this problem.
    Comment #26: Also under 40 CFR 51.356, MDE would like clarification 
as to what is required in order to meet the federal fleet installations 
testing requirement. MDE will provide an update on the discussions with 
US GSA and US DoD, however, MDE would like to know what further is 
required for SIP approval.
    Response #26: The TSD states that Maryland's SIP revision does not 
speak to the requirement that specifically the Federal installation 
managers show proof of inspection for all Federal employee-owned 
vehicles operated on the installation. However, the Maryland SIP 
revision does state that ``the federal agency has the responsibility of 
ensuring that its employees comply, with MVA's guidance.'' EPA believes 
that this statement satisfies this intent of this section of the rule, 
and no further action is required by MDE in order for SIP approval. EPA 
would however, welcome any further information that the Department can 
provide with respect to federal fleet testing issues, specifically 
relating to discussions with US GSA and US DoD. EPA here notes that the 
District of Columbia is also engaging US GSA and US DoD in discussions 
on fleet testing in the Washington Metropolitan area, and that it may 
be instructive for Maryland, the District of Columbia and the 
Commonwealth of Virginia to engage in these discussions together at 
this time.
    Comment #27: MDE has also asked for clarification under 40 CFR 
51.356, as to what is required for SIP approval in relation to special 
exemptions. MDE noted that it will quantify the special exemptions 
extended to motorists under the VEIP program, however, MDE would like 
clarification as to what is required for SIP approval.
    Response #27: EPA anticipates MDE's clarifications of the special 
exemptions categories, and believes that this clarification can be made 
under the enhanced performance standard section, 40 CFR 51.351. There 
are no further SIP requirements for special exemptions, provided that 
the program meets the performance standard, taking exemptions into 
account.
    Comment #28: MDE commented that under 40 CFR 51.358, it has 
satisfied the dual exhaust sampling requirements. In the TSD, EPA cited 
a deficiency for this section, stating that the SIP does not contain 
provisions for sampling dual exhaust vehicles. MDE cited Appendix G of 
SIP revision 95-06, page RFP38.
    Response #28: EPA has reviewed the cite provided by MDE and concurs 
that the simultaneous testing requirement has indeed been met under the 
SIP. EPA notes that the TSD will be amended to correct this oversight, 
however no conditions are affected since none were cited in the NPR for 
this element.
    Comment #29: MDE has asked for clarification under 40 CFR 51.358 as 
to whether or not the SIP is deficient with respect to the requirement 
to update test equipment to accommodate new technology vehicles and 
changes to the program. Under this section of the TSD, EPA commented 
that the SIP does not appear to address this element. However the NPR 
cites this requirement as being met through the annual reporting 
requirement.
    Response #29: EPA believes that the above reference requirement has 
been met by Maryland through its annual reporting requirement, as found 
in the SIP revision under Section II.P.2.. EPA will amend the TSD to 
reflect this, however, no changes will be made to the NPR conditions, 
since none were imposed under this section.
    Comment #30: MDE commented that the NPR discussion under 40 CFR 
51.358 notes that all requirements of this section are approvable, 
however, the TSD notes that Quality Assurance requirements and 
procedures for the evaporative system functional test equipment are not 
included in the SIP revision. MDE further commented that it will 
provide EPA with the appropriate requirements and procedures when EPA 
approved specifications for the pressure test become available.
    Response #30: EPA expects that the requirements under this section 
will be met when the state is able to provide revised pressure testing 
procedures for the SIP. MDE can fulfill the Quality Assurance 
requirements for the pressure test specifications when the pressure 
test specification is approved by EPA, adopted by Maryland and 
submitted to EPA as a revision to the SIP.
    Comment #31: MDE would like clarification as to whether or not a 
deficiency exists with respect to counterfeit resistancy of vehicle 
inspection reports. No deficiency was cited in the NPR, however, the 
TSD reported that Maryland does not have a specific requirement aimed 
at making documents counterfeit resistant, and that the program 
certificates do not carry an official seal. MDE further commented that 
this requirement should not be applicable to a state with registration 
denial as the enforcement mechanism.
    Response #31: As is cited in the NPR, EPA believes that Maryland 
has an adequate measure to ensure counterfeit resistance, i.e., unique 
identification numbers given on each Vehicle Inspection Report (VIR), 
coupled with accountability of the lane inspectors for each numbered 
VIR. EPA notes that the official seal requirement has not been met by 
the state, however, EPA believes the unique serial number method is 
adequate for maintaining counterfeit resistantancy. EPA also concurs 
with MDE's assessment regarding applicability of this requirement 
(i.e., offical seal) to programs using registration denial. Nothing 
further is required by the state in order to meet this section of the 
rule.
    Comment #32: MDE commented that the TSD cites a deficiency 
regarding ensuring that compliance documents cannot be stolen or 
removed without being damaged. The NPR does not cite such deficiency. 
MDE would like clarification as to what is required of Maryland to 
comply with this section. Further MDE questioned the applicability of 
this section to a program using registration denial as the enforcement 
mechanism.
    Response #32: EPA concurs with MDE's assessment regarding 
applicability of this requirement to programs using registration 
denial. Nothing further needs to be done by the state to meet the 
requirements of this section.
    Comment #33: MDE commented that under the section relating to 
Waivers and Compliance via Diagnostic Inspections (40 CFR 51.360), all 
of the vehicles that are the subject of extensions for the program are 
actually inspected in the biennial test cycle and neither the 
compliance rate, nor emissions reductions are affected by this 
practice. Maryland requests clarification regarding what deficiency, if 
any exists for this section.
    Response #33: EPA agrees with MDE's rationale regarding compliance 
rate calculations, and emissions reductions. EPA further accepts MDE's 
clarification contained in its comment letter, that hardship extensions 
do not actually constitute compliance waivers from the program, and 
therefore do not excuse the motorist from meeting the requirements of 
the program, but merely extend the amount of time afforded to the 
motorist for compliance with the program. EPA accepts this explanation 
as sufficient for purposes of satisfying this condition under this 
section of the rule. No further documentation needs to be provided by 
MDE for this condition.

[[Page 40943]]

    Comment #34: MDE commented that the TSD cites the quality control 
section of waiver issuance as being unapprovable. MDE requests 
clarification from EPA regarding this TSD cited deficiency.
    Response #34: EPA has reviewed the TSD and believes this citation 
of a deficiency is a typographical error. EPA will amend the TSD to 
reflect an approvable citation for this requirement. EPA notes that no 
change is necessary for the NPR, since no condition was cited for this 
section.
    Comment #35: MDE commented that it will address the evaporative 
system total purge flow check when the evaporative system tests are 
implemented. MDE requests that EPA clarify what is required under this 
section for approval.
    Response #35: EPA noted in the TSD that the purge system pass/fail 
results did not include the evaporative test total purge flow achieved 
during the test. However, EPA did not cite this as a deficiency in the 
NPR since MDE has committed to changing its purge specifications when 
EPA makes non-invasive purge procedures available. EPA will reassess 
the requirements of this section when the non-invasive procedures 
become available. This requirement may or may not be a part of the 
revised non-invasive testing specifications, and so EPA did not cite a 
lack of this data as a deficiency at this time. EPA will clarify what 
exactly is required when non-invasive specifications become available, 
and MDE is instructed to consult EPA guidance on pressure testing 
specifications for SIP revision purposes.
    Comment #36: MDE notes that the NPR cites all requirements of 40 
CFR 51.370 as having been met. However, the TSD cites a deficiency with 
regard to recall campaign number for vehicles with unresolved recalls. 
MDE wants clarification as to whether this is a SIP deficiency, and 
what is required of Maryland under this section. MDE further requests 
guidance from EPA on complying with the recall provisions of the I/M 
rule.
    Response #36: MDE should ensure that the data system includes the 
recall campaign number for vehicles with unresolved recalls, however, 
under the NPR, no further documentation needs to be submitted to EPA to 
demonstrate that this requirement has been met at this time, and no 
condition has been placed on the State for this deficiency since 
guidance does not currently exist on how to accomplish this task at 
this time. EPA will assist MDE in developing methods for ensuring that 
this data be included in Maryland's system in the future.

III. Conditional Approval

    Under the terms of EPA's October 31, 1996 notice of proposed 
conditional approval rulemaking (61 FR 56183), Maryland was required to 
make commitments to remedy deficiencies with the I/M program SIP (as 
specified in the above notice) within twelve months of the effective 
date of today's final conditional approval notice. On December 23, 
1996, Jane T. Nishida, Secretary of the MDE, submitted a letter to 
David L. Arnold, Chief, Ozone/CO and Mobile Source Section, EPA Region 
III, committing to address and correct, by a date certain, all of the 
deficiencies listed in EPA's October 31, 1996 NPR.
    Because Maryland has submitted the commitment letter called for in 
EPA's October 31, 1996 NPR, EPA is today taking final conditional 
approval action upon the Maryland I/M SIP, under section 110 of the 
CAA.

IV. Final Rulemaking Action

    EPA is conditionally approving Maryland's enhanced I/M program as a 
revision to the Maryland SIP, based upon certain conditions. Should the 
State fail to fulfill the conditions by the deadline of no more than 
one year from September 29, 1997, this conditional approval will 
convert to a disapproval pursuant to CAA section 110(k). In that event, 
EPA would issue a letter to notify the State that the conditions had 
not been met, and that the approval had converted to a disapproval.

V. 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 delegated to the Regional Administrator for 
decision-making and signature. 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, EPA 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 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 
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.

[[Page 40944]]

    EPA has determined that the conditional 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 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 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 29, 1997.
    Filing a petition for reconsideration by the Administrator of this 
final rule to conditionally approve the Maryland enhanced I/M SIP 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, Nitrogen dioxide, Ozone, Reporting and record keeping 
requirements.

    Dated: July 18, 1997.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
    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 V--Maryland

    2. Section 52.1072 is added to read as follows:


Sec. 52.1072  Conditional approval.

    (a) The State of Maryland's July 11, 1995 submittal for an enhanced 
motor vehicle inspection and maintenance (I/M) program, and the March 
27, 1996 amendment to the original SIP revision is conditionally 
approved based on certain contingencies. The following conditions 
listed in paragraphs (a)(1) through (a)(15) of this section must be 
addressed in a revised SIP submission. Along with the conditions listed 
in paragraphs (a)(1) through (a)(15) of this section is a separate 
detailed I/M checklist explaining what is required to fully remedy the 
deficiencies found in the proposed notice of conditional approval. This 
checklist is found in the Technical Support Document (TSD), located in 
the docket of this rulemaking, that was prepared in support of the 
proposed conditional I/M rulemaking action for Maryland. By no later 
than one year from September 29, 1997, Maryland must submit a revised 
SIP that meets the following conditions for approvability:
    (1) Fully adopt and submit to EPA as a SIP revision, final 
regulations and documentation of the public hearing process addressing 
Maryland's March 27, 1997 amendment to the SIP pertaining to proposed 
regulatory changes to the VEIP, as a result of the flexibility afforded 
to Maryland from federal and state legislative changes.
    (2) Provide confirmation from the State Attorney General's Office 
clearly stating that Maryland's interpretation of the sunset date of 
the program is no earlier than November 15, 2005, or in the absence of 
such an opinion, submit to EPA new legislative authority allowing for 
such an extended sunset date of the program.
    (3) Submit to EPA a modeling demonstration of the program using the 
appropriate assumptions and methodology (see TSD and the Response to 
Public Comments section of this rule for detailed discussions) 
demonstrating compliance with the I/M performance standard for the 
years 2002 and 2005 (excluding the year 1999, as recommended by EPA).
    (4) Obtain and/or demonstrate to EPA that adequate funding and 
tools exist for the years 1997 and 1998, including a detailed 
explanation of the number of personnel dedicated to quality assurance, 
data analysis, program administration, and enforcement. In addition, 
Maryland needs to provide budget allotments for equipment resources. 
EPA notes that an update of the budget information is adequate to 
satisfy this condition.
    (5) Provide an explanation to EPA of how all subject vehicles in 
the program will be identified, which includes an estimate of the 
number of unregistered vehicles operated in the program area. 
Subsequent to EPA issuing guidance, Maryland needs to document how 
vehicles that are routinely operated in the program but not registered 
in the program area are identified.
    (6) Provide to EPA applicable sections of state laws and 
regulations specifically addressing engine switching and testing of 
vehicles with no certified engine configuration. Maryland needs to 
commit to adopting non-invasive purge test procedures when EPA 
specifications become available. In addition, EPA expects Maryland to 
submit written procedures for the gas-cap check and to adopt the non-
invasive fuel-fill pipe pressure specifications and procedures when EPA 
issues the final technical guidance.
    (7) Submit to EPA written specifications for the gas cap check 
procedures referenced in Maryland's regulations.
    (8) Provide to EPA a description of how Maryland's current practice 
of issuing short term extensions because of economic hardship is 
granted, which reasonably and clearly defines the time frame of the 
extension period.
    (9) Submit to EPA documentation of how Maryland will handle out-of-
state exemptions, employ mechanisms to enforce vehicle transfer 
requirements when owners move into the program area, and cite motorists 
for noncompliance with the registration requirement. Maryland will need 
to clarify its practice on vehicle impoundment when a motorist is cited 
for driving with a suspended registration. In addition, EPA needs 
verification on vehicle exemption triggering elements which allow the 
subject vehicle to by-pass an inspection test. Confirmation by VIN 
check or physical examination of the subject vehicle needs to be 
included in the SIP revision, as a means of ensuring validation of the 
exemption triggering elements.
    (10) Demonstrate to EPA that enforcement program oversight is 
quality controlled and quality assured. Maryland needs to provide a 
procedures document that details the specifics of the implementation of 
the enforcement program oversight including information management 
activities, activities of enforcement involved in

[[Page 40945]]

monitoring the program, and auditing the enforcement. Quality control 
and assurance needs to address penalty structures, periodic auditing 
and analysis, program effectiveness, and in use fleet compliance via 
parking lot surveys and road side pullovers.
    (11) Provide a description to EPA of Maryland's auditing program 
that will include a minimum number of covert vehicles that are used for 
auditing purposes, covert and overt performance audits of inspectors, 
audits of stations and inspectors records, equipment audits, and formal 
training of all state I/M enforcement officials and auditors.
    (12) Submit to EPA documentation regarding the set up of Maryland's 
penalty structure used to ensure the contractor is in compliance with 
State regulations. The penalty schedule must be applied to the 
contractor, stations, and inspectors. Information should include 
administrative & judicial responsibilities & procedures, and a 
description of the funding allocations.
    (13) Submit to EPA an administrative procedures manual or 
description of the practice of inspector recertification which must 
occur at least every two years.
    (14) Submit to EPA State regulations documenting provisions for the 
protection of whistle blowers. In addition, Maryland needs to provide 
documentation of how it investigates and responds to complaints made by 
the public.
    (15) Maryland must start mandatory testing of all subject vehicles 
as soon as possible, or by November 15, 1997 at the latest.
    (b) [Reserved]

[FR Doc. 97-20219 Filed 7-30-97; 8:45 am]
BILLING CODE 6560-50-P