[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49150-49152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24945]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA-056-5023; FRL-5895-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Virginia; Interim Final Determination for the Enhanced 
Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: Elsewhere in today's Federal Register, EPA has published a 
proposed rule to amend the Inspection/Maintenance (I/M) Program 
Requirements (the I/M rule). That document proposes, in part, revisions 
to the Motor Vehicle I/M requirements by replacing the I/M rule 
requirement that the tailpipe portion of the mandatory program 
evaluation be performed using only an IM240 or equivalent mass-emission 
transient test with a requirement that states use a sound evaluation 
methodology capable of providing accurate information about the overall 
effectiveness of an I/M program. In addition, the proposal would amend 
the conditions relating to the program evaluation testing requirements 
that were part of the conditional interim approval actions taken on the 
I/M State Implementation Plans (SIPs) for the Commonwealths of 
Pennsylvania and Virginia and the State of Delaware, consistent with 
the proposed rule change. Based on the proposed rule and for the 
reasons discussed below, EPA is making an interim final determination 
by this action that the commitment dates concerning the major 
deficiencies in Virginia's I/M SIP should be extended out to June 16, 
1998. The June 16, 1998 date is one year from the effective date of the 
final conditional interim approval of the I/M program, the outside date 
allowed under the Clean Air Act (CAA) for conditional approvals. 
Although this action is effective upon publication, EPA will take 
comment on whether this interim final determination should remain in 
place. In addition, this action will amend the commitment dates 
pertaining to the major deficiencies cited in the rulemaking section of 
the final conditional interim approval for the Commonwealth of 
Virginia's I/M program.

DATES: Effective Date: September 19, 1997. Comment Date: October 20, 
1997.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO & 
Mobile Sources Section, Mailcode 3AT21, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107. 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, Philadelphia, Pennsylvania 19107.

FOR FURTHER INFORMATION CONTACT: Jeffrey M. Boylan,(215) 566-2094, at 
the EPA Region III office or via e-mail at boylan.jeffrey@
epamail.epa.gov. While information may be requested via e-mail, 
comments must be submitted in writing to the above Region III address.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 6, 1996, (61 FR 57343) EPA proposed conditional interim 
approval of the Northern Virginia Enhanced Inspection and Maintenance 
program. In response to that proposal, the DEQ submitted a letter dated 
December 4, 1996, to EPA with a commitment to correct all of the major 
deficiencies cited in the proposal by September 15, 1997. After 
receiving this commitment letter, EPA proceeded with final rulemaking 
on the Virginia I/M program and published an interim final rule on May 
15, 1997 (62 FR 2674). The three major deficiencies conditioned in the 
final rulemaking tasked Virginia to accomplish the following by 
September 15, 1997: (a) Perform and submit the new modeling 
demonstration illustrating how its program will meet the enhanced 
performance standard; (b) submit as a SIP amendment a final Virginia I/
M regulation which requires a yearly mass-emission transient test based 
evaluation on 0.1% of the subject fleet; and (c) adopt and submit a 
final Virginia I/M regulation which requires and specifies detailed 
approvable test procedures and equipment specifications for all the 
evaporative and exhaust tests used in the enhanced I/M program.
    EPA is proposing elsewhere in today's Federal Register, to further 
revise the rule related to state air quality implementation plans for 
Motor Vehicle Inspection and Maintenance (I/M) programs (40 CFR part 
51, subpart S) (hereafter referred to as the I/M rule; see 57 FR 52950) 
to provide greater flexibility to states in conducting program 
evaluation. That proposed rulemaking proposes to: (1) Amend the I/M 
program evaluation requirements at 40 CFR 51.353(c) to remove the 
current requirement that the tailpipe portion of the program evaluation 
can be performed only by conducting mass emission transient testing 
(METT), (2) create a new evaluation requirement at 40 CFR 51.353(c) 
that will instead require states to conduct program evaluation testing 
using a sound evaluation methodology capable of providing accurate 
information about I/M program effectiveness, such evaluation to begin 
no later than November 30, 1998, (3) amend the requirement that the 
program evaluation tests be conducted ``at the time initial test is 
due'' to clarify that states are not barred from using alternative 
sample gathering methods like roadside pullovers by defining ``the time 
of initial test'' as any time prior to repairs during the inspection 
cycle under consideration, (4) delete the current conditions on 
Pennsylvania's and Virginia's conditional interim I/M approvals and 
Delaware's conditional approval (40 CFR part 52, subpart NN, 
Sec. 52.2026(a)(2), 40 CFR part 52, subpart V, Sec. 52.2450(b)(2), and 
40 CFR part 52, subpart I, Sec. 52.424(b), respectively) that require 
submission of program

[[Page 49151]]

evaluation regulations under the existing I/M rule, and (5) impose a 
new condition on Pennsylvania's, Virginia's, and Delaware's I/M 
approvals that will require them to submit I/M regulations which 
include a requirement to perform a program evaluation using a sound 
evaluation methodology meeting the amended requirements of 40 CFR 
51.353(c) by November 30, 1998, if commitments are submitted by October 
15, 1997 to submit such regulations within such time frame.
    Since today's proposed amendments broaden the program evaluation 
requirement to include other sound evaluation methodologies, it is also 
appropriate to propose withdrawing these METT-based program evaluation 
conditions on the interim approval notice for Virginia. In place of 
these original conditions, EPA proposes to impose new conditions that 
will require the commonwealths instead to submit program evaluation 
regulations that meet the more flexible requirements of the amended 40 
CFR 51.353(c). Virginia must submit a commitment by October 15, 1997, 
to adopt and submit the required evaluation methodology requirements by 
November 30, 1998 in order to support EPA's imposition of the new 
proposed conditions under section 110(k)(4) of the Act. However, 
Virginia's final conditional interim approval requires the Commonwealth 
to meet its METT-based program evaluation condition before EPA will be 
able to finalize today's proposed action. The current deadline for 
Virginia's meeting this condition is September 15, 1997, which is based 
upon a commitment made by the Commonwealth prior to EPA's decision to 
revise the program evaluation requirement. The September 15, 1997 date 
does not reflect the full twelve month period available under section 
110(k)(4) of the statute for meeting conditions which, in the case of 
Virginia, would be June 16, 1998. Virginia has recently committed to 
submit program evaluation provisions meeting the existing I/M rule by 
June 16, 1998 should EPA fail to take final action on today's proposal. 
For these reasons, EPA is taking an interim final action to extend the 
deadline for Virginia's existing program evaluation condition to June 
16, 1998. EPA believes it is appropriate to take such action without 
prior public notice and comment because it would be contrary to the 
public interest to require Virginia to comply with a condition based on 
a requirement that EPA has proposed to amend, and because Virginia's 
recent commitment is consistent with the statute.
    On September 2, 1997, the DEQ submitted a recommitment letter 
officially requesting that the EPA extend all the commitment dates 
relevant to the major deficiencies as cited in the December 4, 1996 
letter to June 16, 1998. This date represents a time frame one year 
from the effective date of the final conditional interim approval of 
Virginia's I/M program published on May 15, 1997. In light of the delay 
in the program evaluation, occasioned by EPA's proposal, EPA believes 
that it is appropriate to extend all the commitment dates to June 16, 
1998, consistent with section 110(k)(4) of the CAA.

II. EPA Action

    Based on the proposed rule to amend the I/M Program Requirements 
set forth in today's Federal Register and to properly satisfy the 
conditions in its final interim conditional approval, DEQ submitted a 
recommitment officially requesting that the September 15, 1997 deadline 
to remedy the major deficiencies of the I/M program be extended to June 
16, 1998. EPA believes that the Commonwealth of Virginia is justified 
in its request. Furthermore, prior to the time EPA can take final 
action on today's proposed rule to amend the I/M rule, Virginia would 
be required to comply with a condition in the final I/M rulemaking, 
which EPA has proposed to alter. For all the above reasons, EPA is 
taking this interim final action finding that it is appropriate to 
allow the Commonwealth of Virginia to remedy all the major deficiencies 
within 12 months of the effective date of the I/M interim final rule. 
In addition, this action will amend the commitment dates pertaining to 
the major deficiencies cited in the rulemaking section of the final 
conditional interim approval for the Commonwealth of Virginia's I/M 
program.
    Today EPA is also providing the public with an opportunity to 
comment on this interim final action. If based on any comments on this 
action EPA determines that this final action was inappropriate EPA will 
take further action to withdraw this interim final action, thereby 
reimposing the September 15, 1997 deadline for meeting the commitments. 
The final conditional interim approval would then convert to a 
disapproval based on the State's failure to timely comply with the 
conditions.

III. Administrative Requirements

    In order to remedy conditions of their I/M program for the reasons 
described above, EPA has determined that the Commonwealth of Virginia 
is justified in its extension request and that the State is being 
afforded a time frame which is no longer than other States with pending 
final conditional approvals. Therefore, EPA is invoking the good clause 
exception under the Administrative Procedure Act (APA) in not providing 
an opportunity for comment before this action takes effect.1 
The EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest as EPA would be requiring Virginia to comply with the 
condition in question based on a requirement that EPA has proposed to 
amend. Moreover the section 110(k)(4) of the CAA allows states up to 
one year after the date of approval of a SIP revision to adopt specific 
enforceable measures to meet its commitments. Therefore, EPA believes 
it is necessary to use the interim final rulemaking process to extend 
the commitment dates from September 15, 1997 to June 16, 1998 while EPA 
completes its rulemaking processes on Virginia's I/M program and on the 
proposed I/M rule change.
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    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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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.

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 subject to notice and comment procedure 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.
    Because this action is not subject to prior notice and comment 
requirements (see above), it is not subject to RFA. In any event, 
today's action merely extends the commitment dates to June 16, 1998 for 
the Commonwealth of Virginia to satisfy the major deficiency conditions 
already cited in I/M final conditional interim rule. Therefore, this 
action will not have a significant impact on a substantial number of 
small entities.

[[Page 49152]]

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.
    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 pre-
existing requirements under state or local law, and imposes no new 
federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector, result from this 
action.

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 interim final determination regarding the 
Commonwealth of Virginia I/M SIP is not a ``major rule'' as defined by 
5 U.S.C. 804(2).

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 November 18, 1997.
    Filing a petition for reconsideration by the Administrator of this 
interim final determination of Virginia's 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: September 12, 1997.
W. Michael McCabe,
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 VV--Virginia

    2. Section 52.2450 is amended by revising the first sentence of 
paragraphs (b)(1), paragraph (b)(2), and the first sentence of 
paragraph (b)(3) to read as follows:


Sec. 52.2450  Conditional Approval.

* * * * *
    (b) * * *
    (1) The Commonwealth must perform and submit the new modeling 
demonstration that illustrates how its program will meet the relevant 
enhanced performance standard by June 16, 1998. * * *
    (2) The Commonwealth must submit to EPA as a SIP amendment, by June 
16, 1998, the final Virginia I/M regulation which requires a METT-based 
evaluation be performed on 0.1% of the subject fleet each year as per 
40 CFR 51.353(c)(3) and which meets all other program evaluation 
elements specified in 40 CFR 51.353(c), including a program evaluation 
schedule, a protocol for the testing, and a system for collection and 
analysis of program evaluation data.
    (3) By June 16, 1998, Virginia must adopt and submit a final 
Virginia I/M regulation which requires and which specifies detailed, 
approvable test procedures and equipment specifications for all of the 
evaporative and exhaust tests to be used in the enhanced I/M program. * 
* *
* * * * *
[FR Doc. 97-24945 Filed 9-18-97; 8:45 am]
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