[Federal Register Volume 63, Number 27 (Tuesday, February 10, 1998)]
[Rules and Regulations]
[Pages 6651-6653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3175]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX35-1-6168; FRL-5962-3]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Texas; Disapproval of Revisions to the State 
Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action on disapproval of SIP revisions 
Texas submitted for Regulation IV, 30 TAC Chapter 114, sections 114.1 
``Maintenance and Operation of Air Pollution Control Systems or Devices

[[Page 6652]]

Used to Control Emissions from Motor Vehicles'' and 114.5 ``Exclusions 
and Exceptions'' on February 24, 1989, September 6, 1990, and July 13, 
1993.
    The EPA is disapproving these revisions that relate to Statewide 
antitampering provisions and exemptions to antitampering provisions for 
motor vehicles or motor vehicle engine emission control systems. The 
EPA is taking final disapproval action because the State's 
antitampering rules are not consistent with the Clean Air Act (the 
Act), section 203(a)(3) and EPA's tampering prohibition as outlined in 
EPA's antitampering Enforcement Policy, Mobile Source Enforcement 
Memorandum No. 1A.

EFFECTIVE DATE: This action is effective as of March 12, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Scoggins, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7354 or via E-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    This document announces EPA's final action regarding disapproval of 
three revisions that relate to Statewide antitampering provisions and 
exceptions to antitampering provisions for motor vehicles or motor 
vehicle engine emission control systems. On February 24, 1989, 
September 6, 1990, and July 13, 1993, EPA received revisions to the 
Texas SIP for changes to Regulation IV, 30 TAC Chapter 114, sections 
114.1 and 114.5, 114.5, and 114.1 and 114.5 respectively. In their 
regulations, Texas adopted specific measures restricting emission 
control equipment removal/modifications (antitampering) and exempting 
or providing exclusions for vehicles from antitampering requirements.
    The Federal tampering prohibition for emission control equipment 
for motor vehicles and motor vehicle engines is contained in section 
203(a)(3) of the Act, 42 U.S.C. 7522(a)(3). Section 203(a)(3)(A) of the 
Act prohibits ``any person from removing or rendering inoperative any 
emission control device or element of design installed on or in a motor 
vehicle or motor vehicle engine prior to its sale and delivery to an 
ultimate purchaser'' and prohibits ``any person from knowingly removing 
or rendering inoperative any such device or element of design after 
such sale and delivery to the ultimate purchaser.'' Mobile Source 
Enforcement Memorandum No. 1A, dated June 25, 1974, provides guidance 
on what is a violation of section 203(a)(3).
    The State revision, received February 24, 1989, made the following 
changes. Section 114.1 prohibits: (1) The removal of or render 
inoperative any system or device used to control emissions from a motor 
vehicle or motor vehicle engine or any part thereof; (2) specifies the 
conditions for the acceptable removal and/or installation of vehicle 
engines, catalytic converters, or other emission control components; 
(3) prohibits leasing, sale, or offer to sale motor vehicles that have 
tampered emission control equipment; (4) and finally, establishes sign 
posting requirements for prohibitions.
    Section 114.5 exempts from the provisions of 114.1: (1) Dual-fuel 
conversions specified by the Department of Public Safety (DPS); (2) 
vehicles belonging to persons being transferred to a foreign country 
and specifies associated documentation requirements; (3) sales or 
offers for sale motor vehicles for wholesale transaction and for sales 
or trade-ins from an individual to a vehicle dealer; (4) Federal, State 
and local agencies that sell abandoned, confiscated, or seized vehicles 
and vehicle auction facilities if specific conditions are satisfied.
    The State revision, received September 9, 1990, to section 114.5 
exempts all dealer transactions that do not result in the sale of a 
tampered vehicle to an individual for operation on a public highway.
    The State revision, received on July 13, 1993, made the following 
changes. Section 114.1 addresses the replacement or installation of 
aftermarket alternative fuel conversions equipment and any other system 
or device relating to emissions, safety concerns and antitampering. 
Section 114.5 specifies conditions for granting motor vehicle and motor 
vehicle engine exclusions from the provisions of section 114.1, deletes 
original text in section 114.5(c) to improve consistency with section 
114.1, and redesignates original paragraphs. For further discussion, 
please refer to the proposal for this action (62 FR 48033, September 
12, 1997).

II. Final Action

    The EPA is taking final disapproval action on Texas SIP revisions 
for Texas Regulation IV, 30 TAC Chapter 114, sections 114.1 and 114.5, 
based on the following inconsistencies with the Clean Air Act and EPA's 
tampering prohibition. Section 114.1(b)(4) allows replacement or 
installation of any system or device (other than catalytic converters, 
engines and the conversion of the vehicle to alternative fuels, which 
are handled under separate subsections) if: The system or device can be 
demonstrated to be at least as effective in reducing emissions as the 
original equipment. This rule does not provide how the above 
demonstration will be made nor the criteria for the demonstration. 
Section 114.5(a)(1) allows registered farm vehicles used primarily on a 
farm or ranch to remove or make inoperable the farm vehicles air 
pollution control system or device used to control emissions from the 
farm vehicle. This exemption is contrary to section 203(a)(3)(A) of the 
Act and EPA tampering prohibition as outlined in Memorandum No. 1A. 
Section 114.5(c) allows exclusion from tampering laws by petition to 
the State for danger to person or property. The EPA has never 
recognized any circumstances that merit removal of a catalytic 
converter or other emissions controls because of a fire hazard or other 
problem. Again, this is contrary to the Act and EPA tampering 
prohibition. In addition, section 114.1(b)(3) references a deleted 
section and section 114.1(e) allows dispensing of leaded gasoline if 
properly labeled. The Act banned the dispensing of leaded gasoline on 
January 1, 1996.
    These inconsistencies and the basis of EPA's action were published 
as a proposed disapproval action on September 12, 1997, in the Federal 
Register (62 FR 48033). No comments were received during the public 
comment period.
    Texas' statewide tampering prohibitions are part of the state SIP 
but are not required under section 179(a) of the Act. Even though there 
is a federal law which provides for EPA enforcement, many states do 
have such rules and use them successfully as enforcement tools for 
resolutions of consumer complaints involving tampered vehicles, 
deterrence of tampering, deterrence of selling tampered vehicles, and 
enforcement of tampering violations. Federal law in section 203(a) of 
the Act, which prohibits tampering, will continue to be in effect. 
Since State tampering rules are not required by the Act, this final 
disapproval action does not impose sanctions for failure to meet Act 
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.

[[Page 6653]]

III. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget 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. 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.
    The EPA's disapproval action of the State request under section 110 
and subchapter I, part D of the Act does not affect any existing 
requirements applicable to small entities. Any preexisting Federal 
requirements remain in place after this final disapproval. Federal 
disapproval of the State submittal does not affect its State-
enforceability. Moreover, EPA's final disapproval of the submittal does 
not impose any new Federal requirements. Therefore, EPA certifies that 
this final disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements and impose any new Federal requirements.

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 this final disapproval action 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 final disapproval 
action 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 the 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 this rule in 
today's Federal Register. This rule is not a ``major rule'' as defined 
by 5 U.S.C. section 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Courts of Appeals for 
the appropriate circuit by April 13, 1998. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purpose 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 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: January 26, 1998.
Jerry Clifford,
Acting Regional Administrator, Region VI.

    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 et seq.

Subpart SS--Texas

    2. Section 52.2311 is added to read as follows:


Sec. 52.2311  Motor vehicle antitampering.

    The State of Texas submitted revisions to the State Implementation 
Plan for 30 TAC Chapter 114, sections 114.1 ``Maintenance and Operation 
of Air Pollution Control Systems or Devices Used to Control Emissions 
from Motor Vehicles'' and 114.5 ``Exclusions and Exceptions'' on 
February 24, 1989, and September 6, 1990, and July 13, 1993. The EPA 
disapproved these revisions that relate to Statewide antitampering 
provisions and exemptions to antitampering provisions for motor 
vehicles or motor vehicle engine emission control systems because the 
State's antitampering rules are not consistent with the Act, section 
203(a)(3) and EPA's tampering prohibition as outlined in EPA's 
antitampering enforcement policy, Mobile Source Enforcement Memorandum 
No. 1A.

[FR Doc. 98-3175 Filed 2-9-98; 8:45 am]
BILLING CODE 6560-50-P