[Federal Register Volume 64, Number 186 (Monday, September 27, 1999)]
[Proposed Rules]
[Pages 51937-51943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25042]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-014-7195C; FRL-6444-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts: Enhanced Motor Vehicle Inspection and Maintenance 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Massachusetts. This revision 
establishes and requires the implementation of a statewide enhanced 
motor vehicle inspection and maintenance program (I/M). The intended 
effect of this action is to propose approval of a program which meets 
the EPA requirements for I/M. This action is being taken under the 
Clean Air Act. 42 U.S.C. 7401, et seq. (CAA).

DATES: Comments must be received on or before October 27, 1999. Public 
comments on this document are requested and will be considered before 
taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan E. Studlien, Deputy 
Director, Office of Ecosystem Protection (Mail Code-CAA), United States 
Environmental Protection Agency, Region I, One Congress St., Suite 
1100, Boston, MA 02114-2023 and Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108. Copies of the documents relevant to this action are 
available for public inspection by appointment during normal business 
hours at the U.S. EPA, One Congress Street, Boston MA 02114-2023.

FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 918-1049.

SUPPLEMENTARY INFORMATION: On May 14, 1999 Massachusetts submitted a 
SIP revision for a motor vehicle I/M program. This submittal is a 
supplement to an I/M plan originally submitted on March 27, 1997 to 
meet the requirements of the Clean Air Act and the National Highway 
Systems Designation Act (NHSDA). Although the original NHSDA SIP 
submittal was disapproved on November 15, 1997, because the state 
failed to start up the program, elements of the 1997 submittal are 
still in effect as a matter of Massachusetts law and the Commonwealth 
is now relying on certain of those previously adopted measures as well 
as the newly submitted plan to meet EPA's I/M requirements.

I. Background

    This action is being taken under the authority of section 110 and 
182 of the CAA. EPA believes that proposing this action now under 
section 110 of the CAA is appropriate because this submittal includes 
adopted regulations to implement the program, a signed contract to 
start the program on October 1, 1999, and a description of all elements 
of the program. The deficiencies delineated below are plans and written 
procedures which must be developed and delivered by the contractor. For 
the purposes of this program, ``startup'' is defined as a fully 
operational program which has begun regular, mandatory inspections and 
repairs, using the final test strategy and covering each of a state's 
required areas. Given the fact that the contract was not signed until 
late January 1999, and the magnitude of the Massachusetts program, it 
is not reasonable to expect startup before October 1, 1999.
    EPA believes it is reasonable to propose approval and commence 
public comment now on the Massachusetts I/M program based on the 
combination of the authorizing statute and regulations plus a signed 
contract providing for actual implementation of the program. The 
contract represents a legally binding commitment to implement an 
approvable program that the public can evaluate as the basis for this 
proposal. As discussed further below, EPA will not grant final approval 
to the program until it has commenced operation and all the program 
elements discussed in the notice are completely documented as provided 
in the contract. However, issuing this proposal today will allow EPA to 
complete the public comment process so that we can proceed to final 
approval of the program once operation has commenced.

II. EPA's Analysis of Massachusetts's Submittal

    On May 14, 1999, Massachusetts Department of Environmental 
Protection (DEP) submitted a revision to its SIP for an enhanced I/M 
program. This submittal is a revision to the March 27, 1997 I/M 
submittal. The revision consists of enabling legislation, Chapter 210 
of The Acts of 1997, that will allow the Commonwealth to implement the 
I/M program, adopted regulations, and other required elements, 
including a signed contract for operating the program statewide, as 
described more fully below.
    The program calls for biennial transient testing in test-and-repair 
or test-only facilities, however, most facilities are expected to be 
test-and-repair. The test equipment will be NYTEST (New York State) 
specifications connected to a contractor operated central computer. The 
program evaluation year is 2002. Massachusetts will have a systems 
contractor operating the central computer network and database. This 
contractor will have the ability to disconnect facilities which are 
conducting improper testing. The Commonwealth believes that having 
numerous dynamometers in the field in test-and-repair facilities 
available for diagnostic work and repair confirmation will 
significantly improve the quality of repairs and emission reductions 
from the program.
    Massachusetts will rely heavily on a systems contractor to run the 
central computer system, monitor all emission testing facilities, 
conduct audits and take action to correct problems. The contractor will 
also conduct a public awareness program, develop much of the 
documentation and prepare many of the reports needed for the program. A 
contract, hereafter referred to as the contract, was signed with 
Keating Technologies on January 28, 1999 to be the systems contractor 
for the program for seven years. References in this notice to the 
contract will generally be to Articles or Schedules in the Scope of 
Services signed on January 28, 1999 that is part of the contract. 
Massachusetts will start transient emission testing as required in the 
contract on October 1, 1999. Massachusetts regulations call for IM240 
testing with NYTEST equipment which has been determined to give 
equivalent emission reductions to

[[Page 51938]]

IM240 based on information submitted by NY state.
    Based upon EPA's review of Massachusetts' submittal, EPA believes 
the Commonwealth has complied with many aspects of the CAA and the I/M 
Rule. For those sections of the I/M Rule or of the CAA identified below 
with which the Commonwealth has not yet fully complied, the 
Commonwealth must correct those elements before EPA takes final action 
on the plan. The elements required are documentation and plan elements 
which must be developed and submitted by the contractor. In the 
alternative, if Massachusetts fails to submit corrections for the 
program elements described below, or fails to start the program on 
time, as discussed above, EPA proposes to issue a limited approval and 
limited disapproval of the I/M Plan. This would approve the program for 
its effect in strengthening the SIP but disapprove it for purposes of 
meeting the CAA I/M requirements. Final action on the I/M SIP is 
expected to be in the Fall of 1999.

Applicability--40 CFR 51.350

    Sections 182(c)(3) and 184(b)(1)(A) of the Act and 40 CFR 51.350(a) 
require all states in the Ozone Transport Region (OTR) which contain 
Metropolitan Statistical Areas (MSAs) or parts thereof with a 
population of 100,000 or more to implement an enhanced I/M program. 
Massachusetts is part of the OTR and contains the following MSAs or 
parts thereof with a population of 100,000 or more: Boston-Lawrence-
Salem, MA-NH CMSA, Providence-Pawtucket-Fall River, RI-MA CMSA, New 
Bedford, MSA, Springfield, MSA and Worcester, MSA.
    The Western Massachusetts ozone nonattainment area is classified as 
a serious ozone nonattainment area and is also required to implement an 
enhanced I/M program per section 182(c)(3) of the CAA and 40 CFR 
51.350(a)(2). In addition, Boston is a maintenance area for carbon 
monoxide (CO). A basic I/M program is already included as a permanent 
and enforceable measure in the approved maintenance plan, 61 FR 2918 
(January 30, 1996). An enhanced I/M program is included as a 
contingency measure of the plan.
    Under the requirements of the Clean Air Act, all counties in 
Massachusetts would be subject to I/M program requirements. The 
Massachusetts I/M regulation requires that the enhanced I/M program be 
implemented statewide. In the Commonwealth's submittal, the 
Massachusetts I/M legislative authority in M.G.L. c.111, section 142M 
provides the legal authority to establish a statewide enhanced program. 
This part of the submittal meets the requirements of this section as 
set forth in the federal I/M rule and is part of the basis for this 
proposed approval of the Massachusetts I/M SIP.
    The federal I/M rule requires that the state program not terminate 
until it is no longer necessary. EPA interprets the federal rule as 
stating that a SIP which does not sunset prior to the attainment 
deadline for each applicable area satisfies this requirement. The 
Massachusetts submittal does not address the length of time the program 
will be in effect. The program must continue past the attainment dates 
for all applicable nonattainment areas in Massachusetts. In the absence 
of a sunset date, EPA interprets the SIP submittal as requiring the I/M 
program to continue indefinitely, and proposes to approve the program 
on this basis. Once approved, this unlimited term of the program will 
be federally enforceable as a requirement of the SIP.

Enhanced I/M Performance Standard--40 CFR 51.351

    The enhanced I/M program must be designed and implemented to meet 
or exceed a minimum performance standard, which is expressed as 
emission levels in area-wide average grams per mile (gpm) for certain 
pollutants. The performance standard shall be established using local 
characteristics, such as vehicle age mix and local fuel controls, and 
the following model I/M program parameters: network type, start date, 
test frequency, model year, vehicle type coverage, exhaust emission 
test type, emission standards, emission control device inspection, 
evaporative system function checks, stringency, waiver rate, compliance 
rate and evaluation date. The emission levels achieved by the state's 
program design shall be calculated using the most current version, at 
the time of submittal, of the EPA mobile source emission factor model. 
At the time of the Massachusetts submittal the most current version was 
MOBILE5ah. Areas shall meet the performance standard for the pollutants 
which cause them to be subject to enhanced I/M requirements. In the 
case of ozone nonattainment areas or areas in the Ozone Transport 
Region, the performance standard must be met for both nitrogen oxides 
(NOX) and hydrocarbons (HC). As required in the maintenance 
plan for carbon monoxide, the basic performance standard must be met 
for CO. This Massachusetts submittal must meet the enhanced I/M 
performance standard for HC and NOX throughout the state and 
meet the basic standard for CO in the Boston area. The program also 
meets the enhanced performance standard for CO which could be used as a 
contingency measure if needed.
    The 15% rate of progress (ROP) plan and the 9% ROP plan that 
Massachusetts is currently required to implement for ozone are being 
proposed for approval elsewhere in today's Federal Register. This 
allows the Commonwealth to meet the low enhanced I/M performance 
standard at a minimum rather than the high enhanced performance 
standard provided EPA proceeds to final action on those proposals. EPA 
intends to take final approval action on the 15% and 9% plans 
simultaneously with its final approval of the I/M program.
    The Massachusetts submittal includes the following program design 
parameters:

Network type--Hybrid (test only credit claim)
Start date--1999
Test frequency--biennial
Model year/vehicle type coverage--1984+, light and heavy duty, gasoline
Exhaust emission test type--transient
Emission standards--1.2 HC, 20.0 CO, 2.5 NOX
Emission control device check--yes
Evaporative system function checks--81+
Stringency (pre-1981 failure rate)--N/A
Waiver rate--1%
Compliance rate--96%
Evaluation date(s)--2002

    Massachusetts has submitted modeling demonstrations using the EPA 
computer model MOBILE5ah showing that the enhanced performance standard 
reductions will be met in 2002. This demonstration assumed a 96% 
compliance rate, 1% waiver rate, and IM 240 credits. The 1% waiver rate 
is supported by a description of a program which would not allow 
waivers for high emitters but only for marginal emitters and only after 
repairs have been done. This estimate is acceptable to EPA.
    The Commonwealth's modeling shows that the program meets the ``low 
enhanced I/M performance standard'' for HC, NOx, and CO by 2002. This 
part of the submittal meets the requirements of this section as set 
forth in the federal I/M rule and is part of the basis for proposed 
approval of the Massachusetts I/M SIP.

Network Type and Program Evaluation--40 CFR 51.353

    The enhanced program shall include an ongoing evaluation to 
quantify the emission reduction benefits of the program, and to 
determine if the

[[Page 51939]]

program is meeting the requirements of the Act and the federal I/M 
regulation. The SIP shall include details on the program evaluation and 
shall include a schedule for submittal of biennial evaluation reports, 
data from a state monitored or administered mass emission test of at 
least 0.1% of the vehicles subject to inspection each year, description 
of the sampling methodology, the data collection and analysis system 
and the legal authority enabling the evaluation program.
    The Commonwealth has designed a hybrid network. Massachusetts has 
committed to meet the program evaluation requirements in the SIP 
submittal but failed to provide a detailed description of this part of 
the program. The contract in Article XXVII(E) requires development of a 
program evaluation plan to be developed in concert with the 
Commonwealth to meet the requirements of the CAA. The contract 
conditions this program element on the Commonwealth making additional 
funds available for developing a program evaluation plan. This element 
must be corrected through development of a program evaluation plan that 
meets the requirements of section 51.353 and the element must be fully 
funded prior to final action on the Massachusetts 
I/M SIP.

Adequate Tools and Resources--40 CFR 51.354

    The federal regulation requires the Commonwealth to demonstrate 
that adequate funding of the program is available. A portion of the 
test fee or separately assessed per vehicle fee shall be collected, 
placed in a dedicated fund and used to finance the program. Alternative 
funding approaches are acceptable if it is demonstrated that the 
funding can be maintained. Reliance on funding from the state or local 
General Fund is not acceptable unless doing otherwise would be a 
violation of the state's constitution. The SIP shall include a detailed 
budget plan which describes the source of funds for personnel, program 
administration, program enforcement, and purchase of equipment. The SIP 
shall also detail the number of personnel dedicated to the quality 
assurance program, data analysis, program administration, enforcement, 
public education and assistance and other necessary functions.
    The Commonwealth has provided for a dedicated fund (M.G.L. c.10, 
section 61) to provide the resources needed to implement the program. A 
portion of the fee goes to the contractor ($4.85) and part of it goes 
to the state ($2.49) to support the program. The Commonwealth submitted 
a breakdown of funds and FTE's for the Registry of Motor Vehicles (RMV) 
and DEP to operate the program in the May 14, 1999 Response to Comments 
submitted as part of the SIP revision. These resources along with the 
contractor resources appear to be adequate to meet these needs. This 
part of the submittal meets the requirements of this section as set 
forth in the federal I/M rule and is part of the basis for proposed 
approval of the Massachusetts I/M SIP.

Test Frequency and Convenience--40 CFR 51.355

    The enhanced I/M performance standard assumes an annual test 
frequency; however, other schedules may be approved if the performance 
standard is achieved. The SIP shall describe the test year selection 
scheme, how the test frequency is integrated into the enforcement 
process and shall include the legal authority, regulations or contract 
provisions to implement and enforce the test frequency. The program 
shall be designed to provide convenient service to the motorist by 
ensuring short wait times, short driving distances and regular testing 
hours.
    The Massachusetts program will provide biennial testing in a hybrid 
network. The primarily test-and-repair structure is expected to provide 
customer convenience. The contractor has criteria to meet to provide 
convenient locations throughout the state. Legal authority is provided 
in M.G.L. c.111, section 142M, and the Massachusetts regulations at 310 
CMR 60.02(4) Scheduling of Emissions Inspections. This part of the 
submittal meets the requirements of this section as set forth in the 
federal I/M rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Vehicle Coverage--40 CFR 51.356

    The performance standard for enhanced I/M programs assumes coverage 
of all 1968 and later model year light duty vehicles and light duty 
trucks up to 8,500 pounds GVWR, and includes vehicles operating on all 
fuel types. Other levels of coverage may be approved if the necessary 
emission reductions are achieved. Vehicles registered or required to be 
registered within the I/M program area boundaries and fleets primarily 
operated within the I/M program area boundaries and belonging to the 
covered model years and vehicle classes comprise the subject vehicles. 
Fleets may be officially inspected outside of the normal I/M program 
test facilities, if such alternatives are approved by the program 
administration, but shall be subject to the same test requirements 
using the same quality control standards as non-fleet vehicles and 
shall be inspected in the same type of test network as other vehicles 
in the state, according to the requirements of 40 CFR 51.353(a).
    The federal I/M regulation requires that the SIP shall include the 
legal authority or rule necessary to implement and enforce the vehicle 
coverage requirement, a detailed description of the number and types of 
vehicles to be covered by the program and a plan for how those vehicles 
are to be identified, including vehicles that are routinely operated in 
the area but may not be registered in the area, and a description of 
any special exemptions, including the percentage and number of vehicles 
to be impacted by the exemption. Such exemptions shall be accounted for 
in the emissions reduction analysis.
    The Commonwealth program proposes to test 1984 and newer light and 
heavy duty gasoline vehicles. The mobile modeling contains a model year 
profile provided by the state for the Massachusetts vehicles included 
in the program. Legal authority is provided in M.G.L. c.111, section 
142M, and the Massachusetts regulations at 310 CMR 60.02(3). Exemptions 
have been addressed in the modeling. This part of the submittal meets 
the requirements of this section as set forth in the federal I/M rule 
and is part of the basis for proposed approval of the Massachusetts I/M 
SIP.
    Federally owned vehicles operated in Massachusetts are required to 
meet the same requirements as Massachusetts registered vehicles. EPA is 
not requiring states to implement section 40 CFR 51.356(a)(4) dealing 
with federal installations within I/M areas at this time. The 
Department of Justice has recommended to EPA that this regulation be 
revised since it appears to grant states authority to regulate federal 
installations in circumstances where the federal government has not 
waived sovereign immunity. It would not be appropriate to require 
compliance with this regulation if it is not constitutionally 
authorized. EPA will be revising this provision in the future and will 
review state I/M SIPs with respect to this issue when this new rule is 
final. EPA is not proposing approval or disapproval of the specific 
requirements which apply to federal facilities at this time.

[[Page 51940]]

Test Procedures and Standards--40 CFR 51.357

    Written test procedures and pass/fail standards shall be 
established and followed for each model year and vehicle type included 
in the program. Test procedures and standards are detailed in 40 CFR 
51.357 and in the EPA documents entitled ``High-Tech I/M Test 
Procedures, Emission Standards, Quality Control Requirements, and 
Equipment Specifications,'' EPA-AA-EPSD-IM-93-1, dated April 1994 and 
``Acceleration Simulation Mode Test Procedures, Emission Standards, 
Quality Control Requirements, and Equipment Specifications,'' EPA-AA-
RSPD-IM-96-2, dated July 1996. The federal I/M regulation also requires 
vehicles that have been altered from their original certified 
configuration (i.e. engine or fuel switching) to be subject to the 
requirements of section 51.357(d).
    Massachusetts will use an IM240 test with NYTEST equipment but 
detailed test procedure has not been submitted by the State. The 
contractor is required to develop inspection protocols for all test 
procedures. This element must be corrected through development of 
protocols that meet the requirements of section 51.357 prior to final 
action on the Massachusetts SIP.

Test Equipment--40 CFR 51.358

    Computerized test systems are required for performing any 
measurement on subject vehicles. The federal I/M regulation requires 
that the state SIP submittal include written technical specifications 
for all test equipment used in the program. The specifications shall 
describe the emission analysis process, the necessary test equipment, 
the required features, and written acceptance testing criteria and 
procedures.
    Although the Massachusetts submittal does not contain the written 
technical specifications for test equipment to be used in the program, 
it does state in the May 14, 1999 Response to Comments that the NYTEST 
system will be used. The contractor is required in Article XXVI of the 
contract to develop equipment specifications and acceptance testing 
criteria. This element must be corrected through the development of 
specifications and criteria that meet the requirements of section 
51.358 prior to final action on the Massachusetts SIP.

Quality Control--40 CFR 51.359

    Quality control measures shall insure that emission measurement 
equipment is calibrated and maintained properly, and that inspection, 
calibration records, and control charts are accurately created, 
recorded and maintained.
    The Massachusetts submittal does not include provisions which 
describe and establish quality control measures for the emission 
measurement equipment, and record keeping requirements. The contractor 
is required in Schedule 10 and Articles IV, XXVI and XXVII to develop 
plans to address these areas. This element must be corrected through 
development of quality control plans that meet the requirements of 
section 51.359 prior to final action on this submittal.

Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360

    The federal I/M regulation allows for the issuance of a waiver, 
which is a form of compliance with the program requirements that allows 
a motorist to comply without meeting the applicable test standards. For 
enhanced I/M programs, an expenditure of at least $450 in repairs, 
adjusted annually to reflect the change in the Consumer Price Index 
(CPI) as compared to the CPI for 1989, is required in order to qualify 
for a waiver. Waivers can only be issued after a vehicle has failed a 
retest performed after all qualifying repairs have been made. Any 
available warranty coverage must be used to obtain repairs before 
expenditures can be counted toward the cost limit. Tampering related 
repairs shall not be applied toward the cost limit. Repairs must be 
appropriate to the cause of the test failure. Repairs for 1980 and 
newer model year vehicles must be performed by a recognized repair 
technician. The federal regulation allows for compliance via a 
diagnostic inspection after failing a retest on emissions and requires 
quality control of waiver issuance. The SIP must set a maximum waiver 
rate and must describe corrective action that would be taken if the 
waiver rate exceeds that committed to in the SIP.
    Massachusetts has chosen to allow cost waivers and compliance via 
diagnostic inspection. The Commonwealth waiver procedure as set forth 
at 310 CMR 60.02(11) provides for waivers of vehicles up to five years 
old after spending $400, five up to 10 year old vehicles after spending 
$300 and for vehicles ten years old and older $200. Only repairs 
performed by a registered repair technician can be credited toward a 
waiver. The Commonwealth regulation establishes a program which 
accomplishes the same end as the EPA program, which is to get very high 
emitting vehicles off the road. The Massachusetts waiver regulation 
provides that if the vehicle is not within five times the standard for 
the first two years, no waiver will be issued. After the first two 
years, this drops to three times the standard. 310 CMR 60.02(11)(c)(2). 
The Commonwealth estimates that this program will allow no more than 
the equivalent of a 1% waiver rate. This element of the submittal is 
part of the basis for proposed approval of the Massachusetts I/M SIP.

Motorist Compliance Enforcement--40 CFR 51.361

    The federal regulation requires that compliance shall be ensured 
through the denial of motor vehicle registration in enhanced I/M 
programs unless an exception for use of an existing alternative is 
approved. An enhanced I/M area may use either sticker-based enforcement 
programs or computer-matching programs if either of these programs were 
used in the existing program, which was operating prior to passage of 
the 1990 Clean Air Act Amendments, and it can be demonstrated that the 
alternative has been more effective than registration denial. The SIP 
shall provide information concerning the enforcement process, legal 
authority to implement and enforce the program, and a commitment to a 
compliance rate to be used for modeling purposes and to be maintained 
in practice.
    The Commonwealth is planning on utilizing a sticker system for 
visible evidence of compliance, but registration will be suspended or 
not renewed for noncompliance as specified in 310 CMR 60.02(16) 
Enforcement and 540 CMR 4.07(4). The data base will be maintained by 
the contractor and tied in with the Registry of Motor Vehicles 
database. The Commonwealth has specified a 96% compliance rate to be 
monitored in practice. This part of the submittal meets the 
requirements of this section as set forth in the federal I/M rule and 
is part of the basis for proposed approval of the Massachusetts I/M 
SIP.

Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

    The federal I/M regulation requires that the enforcement program 
shall be audited regularly and shall follow effective program 
management practices, including adjustments to improve operation when 
necessary. The SIP shall include quality control and quality assurance 
procedures to be used to insure the effective overall performance of 
the enforcement system. An information management system shall be 
established which will characterize, evaluate and enforce the program.

[[Page 51941]]

    The contract Schedule 5, Database Plan details the coordination of 
data between the workstation and ALARS (the Registry database) to 
enforce, audit and evaluate this requirement. The details of this 
element of the program are addressed in the scope of services, 
evaluation, and management portions of the contract. This part of the 
submittal meets the requirements of this section as set forth in the 
federal I/M rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Quality Assurance--40 CFR 51.363

    An ongoing quality assurance program shall be implemented to 
discover, correct and prevent fraud, waste, and abuse in the program. 
The program shall include covert and overt performance audits of the 
inspectors, audits of station and inspector records, equipment audits, 
and formal training of all state I/M enforcement officials and 
auditors. A description of the quality assurance program which includes 
written procedure manuals on the above discussed items must be 
submitted as part of the SIP.
    The quality assurance program is included as part of Schedule 7 of 
the Contract to be supplied which is designed to meet the auditing 
requirements of the federal I/M rule. Written procedures have not yet 
been developed and are required to be developed by the Contractor. This 
is an element which the Commonwealth must correct through development 
of a quality assurance program meeting the requirements of section 
51.363 prior to final action on this submittal.

Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364

    Enforcement against licensed stations, contractors and inspectors 
shall include swift, sure, effective, and consistent penalties for 
violation of program requirements. The federal I/M regulation requires 
the establishment of minimum penalties for violations of program rules 
and procedures which can be imposed against stations, contractors and 
inspectors. The legal authority for establishing and imposing 
penalties, civil fines, license suspensions and revocations must be 
included in the SIP. State quality assurance officials shall have the 
authority to temporarily suspend station and/or inspector licenses 
immediately upon finding a violation that directly affects emission 
reduction benefits, unless constitutionally prohibited. An official 
opinion explaining any state constitutional impediments to immediate 
suspension authority must be included in the submittal. The SIP shall 
describe the administrative and judicial procedures and 
responsibilities relevant to the enforcement process, including which 
agencies, courts and jurisdictions are involved, who will prosecute and 
adjudicate cases and the resources and sources of those resources which 
will support this function.
    Regulation 310 CMR 60.02(16) and 540 CMR 4.08 provide for 
enforcement against stations and inspectors. The Registrar can enforce 
these regulations after a hearing with a 14 day notice required. There 
is an appeal board within the Registry structure to which appeals of 
the Registrar's or Commissioners decisions can be made. Sufficient 
resources have been provided to enforce the program and are addressed 
in the resources section. The contractor may disconnect inspection 
stations from the computer system without a prior hearing if there is a 
problem with calibration or if the station is suspected of conducting 
improper inspections. The contract terms provide for penalties against 
the contractor. In addition M.G.L. c. 111, section 142M(f) provides for 
fines and civil penalties of up to $25,000 per day or imprisonment for 
up to a year for falsely issuing or denying an inspection sticker or 
tampering with any emissions control device. This part of the submittal 
meets the requirements of this section as set forth in the federal I/M 
rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Data Collection--40 CFR 51.365

    Accurate data collection is essential to the management, evaluation 
and enforcement of an I/M program. The federal I/M regulation requires 
data to be gathered on each individual test conducted and on the 
results of the quality control checks of test equipment required under 
40 CFR 51.359.
    The Massachusetts SIP provides a commitment to meet all of the data 
collection requirements and has listed all the required data which will 
be collected in Schedule 5 of the Contact. Data collection for quality 
control is addressed in Article IV(E) and Schedule 7 of the contract. 
This part of the submittal meets the requirements of this section as 
set forth in the federal I/M rule and is part of the basis for proposed 
approval of the Massachusetts I/M SIP.

Data Analysis and Reporting--40 CFR 51.366

    Data analysis and reporting are required to allow for monitoring 
and evaluation of the program by the state and EPA. The federal I/M 
regulation requires annual reports to be submitted which provide 
information and statistics and summarize activities performed for each 
of the following programs: testing, quality assurance, quality control 
and enforcement. These reports are to be submitted by July and shall 
provide statistics for the period of January to December of the 
previous year. A biennial report shall be submitted to EPA which 
addresses changes in program design, regulations, legal authority, 
program procedures and any weaknesses in the program found during the 
two year period and how these problems will be or were corrected.
    The Massachusetts data analysis and reporting procedures are 
required in many parts of the contract including the Scope of Services 
and Schedule 5 Database Plan. In the May 14, 1999 Response to Comments, 
the Commonwealth reiterated its commitment to meet these requirements 
for both annual and biennial reporting. This part of the submittal 
meets the requirements of this section as set forth in the federal I/M 
rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Inspector Training and Licensing or Certification--40 CFR 51.367

    The federal I/M regulation requires all inspectors to be formally 
trained and licensed or certified to perform inspections.
    The Massachusetts proposed regulation at 310 CMR 60.02(14) requires 
training and certification of inspectors. Article XXVII(C) requires the 
contractor to train and test up to 4000 inspectors with the appropriate 
curriculum as specified in the federal I/M rule. This part of the 
submittal meets the requirements of this section as set forth in the 
federal I/M rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Public Information and Consumer Protection--40 CFR 51.368

    The federal I/M regulation requires the SIP to include public 
information and consumer protection programs.
    The Massachusetts SIP submittal contains a detailed public 
awareness plan in Schedule 9 of the Contract. This part of the 
submittal meets the requirements of this section as set forth in the 
federal I/M rule and is part of the basis for proposed approval of the 
Massachusetts I/M SIP.

Improving Repair Effectiveness--40 CFR 51.369

    Effective repairs are the key to achieving program goals. The 
federal regulation requires states to take steps to ensure that the 
capability exists in the

[[Page 51942]]

repair industry to repair vehicles. The SIP must include a description 
of the technical assistance program to be implemented, a description of 
the procedures and criteria to be used in meeting the performance 
monitoring requirements required in the federal regulation, and a 
description of the repair technician training resources available in 
the community.
    Article XXVII(L) of the contract provides for adequate training, 
technical assistance and performance monitoring of mechanics. This part 
of the submittal meets the requirements of this section as set forth in 
the federal I/M rule and is part of the basis for proposed approval of 
the Massachusetts I/M SIP.

Compliance With Recall Notices--40 CFR 51.370

    The federal regulation requires the states to establish methods to 
ensure that vehicles that are subject to enhanced I/M and are included 
in a emission related recall receive the required repairs prior to 
completing the emission test and/or renewing the vehicle registration.
    EPA will adopt regulations to require submittal of this information 
by manufacturers to develop a database to support this requirement. 
This part of the I/M rule will be reevaluated after EPA adopts the 
needed rule.

On-Road Testing--40 CFR 51.371

    On-road testing is required in enhanced I/M areas. The use of 
either remote sensing devices (RSD) or roadside pullovers including 
tailpipe emission testing can be used to meet the federal regulations. 
The program must include on-road testing of 0.5% of the subject fleet 
or 20,000 vehicles, whichever is less, in the nonattainment area or the 
I/M program area. Motorists that have passed an emission test and are 
found to be high emitters as a result of an on-road test shall be 
required to pass an out-of-cycle test.
    The Massachusetts SIP submittal describes an on-road testing 
program in Article XXVII(F) of the Contract which meets the testing 
requirements of the federal I/M rule. DEP and RMV are authorized to use 
on-road testing for ``inspection and enforcement purposes.'' M.G.L. c. 
111, section 142M(c). In addition, a statute governing the RMV provides 
that it is illegal to permit to escape from a motor vehicle smoke or 
pollutants in such amounts or at such levels as may violate motor 
vehicle air pollution control regulations, including the I/M program 
authorized in chapter 111 of the Massachusetts General Laws. M.G.L. c. 
90, section 16. Motor vehicles can be immediately removed from the road 
for violation of this section. As a matter of courtesy, the state can 
issue a repair ticket which requires repair of the vehicle and passing 
a reinspection (out-of-cycle test) of the vehicle within a specified 
number of days. In addition, on August 20, 1999, EPA proposed in the 
Federal Register at 64 FR 45491 additional flexibility for I/M 
programs. One of these proposed revisions would allow approval of on-
road testing programs not having mandated off-cycle testing for high 
emitting vehicles. The Massachusetts program would also meet this 
revised requirement if it is finalized prior to final action on the 
Massachusetts I/M SIP. Generally the RSD program elements would be 
approvable, but for a condition included in Article XXVII(F)(1) of the 
Contract. The condition provides that if the parties cannot agree on a 
price for remote sensing services, all or a portion of the RSD services 
may be eliminated. The parties must reach an agreement on RSD pricing 
that provides for a program consistent with EPA's requirements prior to 
final action on the Massachusetts I/M SIP.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR 
51.372-51.373

    The Massachusetts program provides for mandatory testing to begin 
on October 1, 1999 in accordance with the terms of the Contract 
Schedule 6. EPA believes that this date, is as soon as practicable for 
Massachusetts given the current stage of development of the 
Commonwealths program.

III. Discussion for Rulemaking Action

    In order for EPA to approve the Massachusetts I/M SIP, the state 
must submit approvable plans for the following elements of the SIP 
prior to final EPA action on this submittal. These elements are: 
Network Type and Program Evaluation--40 CFR 51.353, Test Procedures and 
Standards--40 CFR 51.357, Test Equipment--40 CFR 51.358, Quality 
Control--40 CFR 51.359, Quality Assurance--40 CFR 51.363, and On-road 
Testing--40 CFR 51.371.
    EPA expects that the Commonwealth will, by October 1, 1999, submit 
the required elements as identified in this document and also startup 
the program. If the Commonwealth does not submit the required elements 
and startup the I/M program by October 1, 1999, EPA proposes in the 
alternative to issue a limited approval and limited disapproval of the 
program. This would approve the program for its effect in strengthening 
the SIP but disapprove it for purposes of meeting the CAA I/M 
requirements.
    EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to the EPA 
Regional office listed in the Addresses section of this document.

IV. Proposed Action

    EPA is proposing to approve this revision to the Massachusetts SIP 
for an enhanced I/M program. EPA will not take final action on this 
submittal until after the date Massachusetts is scheduled to start the 
I/M program and submit the items listed above which are required work 
outputs of the contract. If Massachusetts fails, EPA will instead issue 
a limited approval and limited disapproval of the program.
    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.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''
    The action has been classified as a Table 3 action for signature by 
the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation.

B. Executive Orders on Federalism

    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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation

[[Page 51943]]

with representatives of affected state, local, and tribal governments, 
the nature of their concerns, 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 governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's 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 rule.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)), 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism 
still applies. This rule will not have a substantial direct effect on 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 12612. 
The rule affects only 1 State, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

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.
    This rule is not subject to E.O. 13045 because it is not 
economically significant within the meaning of EO 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 affects 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, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials 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. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an 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 SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

F. Unfunded Mandates

    Under sections 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 
the 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 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 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.

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.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 17, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-25042 Filed 9-24-99; 8:45 am]
BILLING CODE 6560-50-P