[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19910-19913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9460]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-84-1-7341a; FRL-6324-2]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Texas: Motor Vehicle Inspection and Maintenance (I/M) 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves three revisions to the I/M SIP submitted 
by the State, thereby removing the conditions for final approval. The 
program was initially given conditional interim approval by the EPA on 
July 11, 1997 (62 FR 37138). The action is being taken under section 
348 of the National Highway System Designation Act of 1995 (NHSDA) and 
section 110 of the Clean Air Act (Act). The EPA is removing the 
conditions from the interim approval because the State's SIP revisions 
correct the major conditions identified in the July 11, 1997, 
conditional interim approval action. In today's Federal Register 
action, EPA is

[[Page 19911]]

finding that the State has obtained the legislative authority needed to 
meet the major conditions contained in EPA's July 11, 1997 action. 
Today's action also approves into the SIP the definition of ``primarily 
operated,'' the State's commitment to implement On-Board Diagnostic 
testing, and removes the requirement for Test-on-Resale from the SIP.

DATES: This direct final rule is effective on June 22, 1999, without 
further notice, unless the EPA receives adverse comment by May 24, 
1999. If adverse comment is received, the EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Air Planning Section, at the EPA Regional 
Office listed below. 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: Sandra Rennie, Air Planning Section 
(6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, 
telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION:

I. Background

What Are the Previous Actions Related to This Action?

    On October 3, 1996 (61 FR 51651), EPA published a Notice of 
Proposed Rule Making (NPR) proposing conditional interim approval of 
Texas'
I/M program that was submitted to satisfy the applicable requirements 
of both the Act and the NHSDA. The formal SIP revision was submitted by 
Texas on March 14, 1996. After the NPR was published, EPA received 
comments requesting an extension of the comment period for 60 days 
which was granted on November 18, 1996 (61 FR 58671).
    On July 11, 1997, (62 FR 37138), EPA finalized its conditional 
interim approval action and responded to comments made on the action. 
The Federal Register Notice stated that EPA was conditionally approving 
the Texas I/M program as a revision to the Texas SIP, based upon three 
major conditions to be remedied within twelve months of final interim 
approval. The State had made a commitment to remedy these conditions 
and to support the additional needed legislation to be carried out in 
Texas's 75th Legislative Session.

What Are the Conditions That Need To Be Met for the EPA To Grant Final 
Interim Approval?

    Texas was required to obtain additional legal authority needed to 
implement its program. The specific authority needed was outlined in 
EPA's NPR (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 major conditions are the legal authority identified in the 
Executive Order that includes: (1) The denial of re-registration 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 also was aware that the State of Texas had expressed plans 
to remove the ``test-on-resale'' provisions from their I/M plan. In the 
FRN, EPA stated that we would not require the State to obtain authority 
for and implement the test-on-resale provisions of the current State 
plan if the State submitted a SIP revision removing it from the SIP, 
since the test-on-resale provision was not required by the Act or the 
Federal I/M rule.

What Else Will Be Needed for EPA To Grant a Final Full Approval?

    The final conditional interim approval also identified further 
requirements for permanent I/M SIP approval, that are not being 
considered in this action. In addition to complying with all the major 
conditions of its commitment to EPA that is being acted on in this NPR, 
the State needs to provide EPA with the following:
    (1) A program evaluation to confirm that the appropriate amount of 
program credit was claimed by the State and achieved with the interim 
program.
    (2) Final Texas Department of Public Safety program regulations.
    (3) Evidence that the Texas I/M program will meet 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.
    (4) Evidence that the remote sensing program is effective in 
identifying and obtaining repairs on vehicles with high levels of 
emissions, or expand the Texas I/M core program area to include the 
entire urbanized area for both Dallas/Fort Worth and Houston.

II. EPA Analysis of Texas' Submittals

A. May 29, 1997

    The revision included a deletion of the test-on-resale element to 
the SIP, the Memorandum of Understanding (MOU) between the Texas 
Natural Resource Conservation Commission (TNRCC) and Texas Department 
of Public Safety, and revision to the definition of ``primarily 
operated'' in the Texas I/M rules. The EPA has reviewed the State's 
submittal and finds it acceptable for approval.
Test-on-Resale
    The removal of the test-on-resale element from the SIP fulfills one 
of the three major conditions required for SIP approval.
Memorandum of Understanding
    The MOU outlines and specifies the respective responsibilities 
between the TNRCC and the Texas Department of Public Safety. It 
fulfills the Federal I/M rule requirement for SIP submissions contained 
in 40 CFR 51.372(a)(7).
Definition of ``Primarily Operated''
    The State also revised its definition of primarily operated to 
require compliance of vehicles that are operated 60 calendar days in 
the nonattainment area, instead of 60 continuous days. The revision 
will result in a strengthening of the State I/M plan.

B. June 23, 1998

    In this revision to the I/M SIP, the State commits to implementing 
On-board Diagnostic testing beginning on January 1, 2001. This revision 
was required under section 51.358 of the Federal I/M regulation.

C. December 22, 1998

    During the 75th Texas legislative session, the State obtained the 
authority to implement a program for denial of re-registration of 
vehicles that have not complied with I/M program requirements, and the 
authority to establish a class C misdemeanor penalty for operating a 
grossly polluting vehicle in a nonattainment area (i.e., enforcement of 
remote sensing). Senate Bill 1856, signed by the Governor, and 
effective on June 19, 1997, revised section 382 of the Texas Health and 
Safety Code, and sections 502 and 548

[[Page 19912]]

of the Texas Transportation Code to correct legislative deficiencies 
identified in the July 11, 1997, conditional interim approval. A 
certified copy of the legislation was submitted to EPA under a letter 
from the Governor dated December 22, 1998.

III. Discussion of Rulemaking Action

    The EPA review of this material indicates that these supplemental 
SIP revisions, with supporting documentation, meet the minimum 
requirements of the Act, NHSDA, and Federal I/M regulations. Based upon 
the discussion contained in the previous analysis section, EPA 
concludes the State's submittals satisfy the conditions established in 
the July 11, 1997 conditional interim approval. Therefore, EPA is 
granting final interim approval for the Texas I/M program.
    Because EPA views the approval of these SIP revisions as non-
controversial, we are taking direct final action to approve these 
revisions to the I/M SIP.

IV. Explanation of the Interim Approval

    In the July 11, 1997, notice the 18-month interim approval was set 
to lapse on February 11, 1999. Prior to that date, Texas submitted a 
program effectiveness demonstration. The EPA is reviewing that 
submittal and will take action in the near future.

V. Further Requirements for Permanent I/M SIP Approval

    Final approval of the State's plan will be granted based upon the 
criteria outlined in the background section and explained in the July 
11, 1997 notice. This Federal Register action does not change the 
requirements for permanent I/M SIP approval.

VI. Final Action

    The EPA is approving the State's May 29, 1997, June 23, 1998, and 
December 22, 1998, submittals. By this approval, EPA is giving final 
interim approval to the Texas I/M program. As discussed above, the 
State submitted the required program demonstration prior to lapse of 
the program approval. The EPA will take a separate action on that 
demonstration.
    The EPA is publishing this rule without prior proposal because we 
view this as a noncontroversial submittal and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision should adverse 
comments be filed. This rule will be effective June 22, 1999, without 
further notice unless we receive adverse comments by May 24, 1999.
    If EPA receives such comments, we will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. A second comment 
period will not be instituted. Parties interested in commenting should 
do so at this time. If no such comments are received, the public is 
advised that this rule will be effective on June 22, 1999, and no 
further action will be taken.
    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.

VII. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a State, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, E.O. 12875 requires EPA to 
provide to OMB a description of the extent of EPA's prior consultation 
with representatives of affected State, local, and tribal governments, 
the nature of their concern, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal government ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's proposed rule does not create a mandate on State, local, or 
tribal governments. The rule does not impose any enforceable duties on 
these entities. Accordingly, the requirements of section 1(a) of E.O. 
12875 do not apply to this proposed rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    The proposed rule is not subject to E.O. 13045 because it is not 
economically significant under E.O. 12866, and it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to OMB, in a separately identified section of the preamble to 
the rule, a description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this proposed rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally 
requires an

[[Page 19913]]

agency to conduct a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule will not have a significant impact on 
a substantial number of small entities because conditional approval of 
SIP submittals under section 110 and subchapter I, part D of the Act 
does not create any new requirements but simply approves requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of 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. See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).

F. 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 proposed 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.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the U.S. comptroller General prior to publication 
of the rule in the Federal Register. This rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

H. 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 Court of Appeals for 
the appropriate circuit by June 22, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule 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).)

List of Subjects in 40 CFR PART 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: March 30, 1999.
Jerry Clifford,
Acting Regional Administrator, Region 6.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart SS--Texas

    2. Section 52.2270 is amended by adding new paragraph (c)(120) to 
read as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *
    (120) Revisions submitted by the Governor on May 29, 1997, June 23, 
1998, and December 22, 1998, that change the definition of ``primarily 
operated,'' commit to on-board diagnostic testing, remove the test-on-
resale of vehicles subject to the inspection and maintenance program, 
and provide the legal authority for denial of re-registration of 
vehicles that have not complied with the I/M program requirements, and 
the establishment of a class C misdemeanor penalty for operating a 
grossly polluting vehicle in a nonattainment area.
    (i) Incorporation by reference:
    (A) Narrative of State Implementation Plan revision submitted May 
29, 1997, by the Governor.
    (B) Narrative of State Implementation Plan revision submitted June 
23, 1998, by the Governor.
    (C) Letter from the Governor dated December 22, 1998, submitting 
Senate Bill 1856.
    (ii) Additional material:
    (A) Senate Bill 1856.
    (B) Memorandum of Agreement between the Texas Natural Resource 
Conservation Commission and the Texas Department of Public Safety 
adopted November 20, 1996, and signed February 5, 1997.


Sec. 52.2310  [Removed]

    3. Section 52.2310, Conditional approval, is removed.

[FR Doc. 99-9460 Filed 4-22-99; 8:45 am]
BILLING CODE 6560-50-P