[Federal Register Volume 66, Number 220 (Wednesday, November 14, 2001)]
[Rules and Regulations]
[Pages 57261-57265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27587]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-134-3-7528; FRL-7092-9]


Approval and Promulgation of Air Quality State Implementation 
Plans; Texas: Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: The EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Texas on establishing a Vehicle Inspection 
and Maintenance (I/M) Program for the Dallas/Fort Worth (DFW), Houston-
Galveston Area (HGA), and El Paso (ELP) nonattainment areas. EPA 
proposed approval of the DFW I/M SIP revision on January 22, 2001, and 
the HGA I/M SIP revision on June 11, 2001. The revisions replace the 
two-speed idle test in Dallas, Tarrant, and Harris Counties with ASM-2, 
expand the upgraded I/M program to cover the entire DFW nonattainment 
area plus five additional counties, and the eight county HGA 
nonattainment area. The revisions also implement On-Board Diagnostic 
(OBD) testing in the DFW and HGA testing areas, and El Paso County.
    The I/M SIP revisions are part of the DFW and HGA Attainment 
Demonstrations.

DATES: This final rule is effective on December 14, 2001.

ADDRESSES: 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 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Rennie, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7367.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

What action is EPA taking today?

    We are granting final approval of Texas' Motorist Choice (TMC) 
vehicleI/M program. The program applies to the HGA and ELP 
nonattainment areas, and the DFW nonattainment area plus five adjoining 
attainment counties. EPA proposed approval of the DFW I/M SIP revision 
on January 22, 2001 (66 FR 6521), and the HGA I/M SIP revision on June 
11, 2001 (66 FR 31199).

[[Page 57262]]

What are the Clean Air Act Requirements?

    EPA approval of this SIP revision is governed by sections 110 and 
182 of the Act, and section 348 of the National Highway Systems 
Designation Act (NHSDA) of 1995.
    Section 182 of the Act provides for plan submissions and plan 
requirements. Section 182 (b)(4) requires vehicle I/M programs in 
nonattainment areas classified as moderate or above. Section 182(c)(3) 
requires enhanced vehicle I/M programs in areas classified serious or 
above.
    Under the NHSDA, EPA cannot apply an automatic 50 percent credit 
discount to I/M SIPs under section 182, 184, or 187 of the Act because 
the I/M program in the SIP revision is decentralized or a test-and-
repair program. (See EPA's I/M program requirements final rule 
published November 5, 1992, at 57 FR 52950.) The automatic discount has 
been effectively replaced with a presumptive equivalency criterion, 
which places the emission reductions credits for decentralized networks 
on par with credit assumptions for centralized networks, based upon a 
state's good faith estimate of reductions as provided by the NHSDA.
    The NHSDA directs EPA to grant interim approval for a period of 18 
months to approve I/M submittals. The NHSDA also directs EPA and the 
states to review the interim program results at the end of that 18-
month period, and to make a determination as to the effectiveness of 
the interim program. Following this demonstration, EPA will adjust any 
credit claims made by the state in its good faith effort, to reflect 
the emission reductions actually measured by the state during the 
program evaluation periods. Per the NHSDA requirements, this 
conditional interim rulemaking expired February 11, 1999, 18 months 
after the interim final rule became effective on August 11, 1997.

Why is EPA taking this action?

    We are taking this action because the State submitted an approvable 
enhanced vehicle I/M program SIP for each nonattainment area requiring 
a program. The Beaumont-Port Arthur nonattainment area is not required 
to have a program because the 1995 I/M flexibility amendments (60 FR 
48029, September 18, 1995) set a population requirement of 200,000 or 
more for a 1990 Census-defined urbanized area to implement a program.
    Previous actions taken toward full approval of the TMC I/M program 
include: a proposed conditional interim approval proposed on October 3, 
1996 (61 FR 51651); an interim final conditional approval published on 
July 11, 1997 (62 FR 37138); and a direct final action on April 23, 
1999 (64 FR 19910) to remove the conditions.

What does the State's Texas Motorist Choice I/M program include?

    The State's TMC program requires that gasoline powered light-duty 
vehicles, and light and heavy-duty trucks between two and twenty-four 
years old, that are registered or required to be registered in the I/M 
program area, including fleets, are subject to annual inspection and 
testing.
    Vehicles in Dallas, Tarrant, Collin, Denton, Ellis, Johnson, 
Kaufman, Parker, and Rockwall counties in the DFW area, and Harris, 
Galveston, Brazoria, Fort Bend, Montgomery, Liberty, Waller, and 
Chambers in the HGA nonattainment area that are 1995 and older will be 
subject to an ASM-2 tailpipe test. Vehicles in those counties that are 
1996 and newer will receive the On-Board Diagnostic (OBD) test in place 
of the tailpipe test.
    Vehicles in El Paso county will be subject to the two-speed idle 
tailpipe test if they are 1995 or older, or an OBD test if they are 
1996 or newer.
    All vehicles in the area programs are currently subject to a gas 
cap pressure check and an antitampering inspection.
    The schedule to begin this new testing is as follows:
    May 1, 2002. On-Board Diagnostic (OBD) testing will be added to the 
low-enhanced, two-speed idle test currently being implemented in 
Harris, Dallas, Tarrant, and El Paso Counties. The shortfall in vehicle 
coverage for the DFW and HGA nonattainment areas will continue to be 
made up by remote sensing within Dallas, Tarrant, and Harris Counties 
to identify gross polluting vehicles commuting in from the surrounding 
nonattainment counties only until tailpipe testing begins in those 
counties.
    May 1, 2002. ASM-2 and OBD vehicle testing in Dallas, Tarrant, 
Collin, Denton, and Harris Counties.
    May 1, 2003. The State will expand the I/M program to include the 
DFW attainment counties of Ellis, Johnson, Kaufman, Parker, Rockwall, 
and the HGA nonattainment counties of Galveston, Brazoria, Fort Bend, 
and Montgomery. May 1, 2004. The State will expand the I/M program 
further to include the HGA nonattainment counties of Chambers, Liberty, 
and Waller.
    The vehicle coverage shortfall in the HGA area will continue to be 
covered by the remote sensing program until all counties become subject 
to I/M testing. An optional opt-out alternative for Chambers, Liberty, 
and Waller Counties allows any or all of these counties to opt-out of 
I/M and substitute an alternative air control strategy. This provision 
is subject to an expedited timeline and the State's submission of SIP 
revisions substituting equivalent reductions of VOC and NOX, 
based on modeling. Remote sensing would then be used to monitor 
vehicles from those counties which are not part of the urbanized area.

What did the State submit?

    The State submitted SIP revisions for 30 Texas Administrative Code 
(TAC) 114 on March 14, 1996, April 25, 2000, and December 20, 2000. The 
submittals contained documentation to support an approval under section 
182 of the Act and 40 CFR part 51, Subpart S-Inspection/Maintenance 
Program Requirements. For further discussion of the submittals, see the 
proposed approvals, October 3, 1996 (61 FR 51651), January 22, 2001 (66 
FR 6521), June 11, 2001 (66 FR 31199) and accompanying Technical 
Support Documents.
    We are not approving as part of the Texas I/M SIP the State's 30 
TAC 114.50(b)(2). This rule places an additional reporting burden upon 
commanders at Federal facilities regarding affected Federal vehicles, 
that is not imposed upon any other affected non-federal vehicle. The 
additional reporting requirement is not an essential element for an 
approvable I/M program, since affected Federal vehicles are also 
subject to the same reporting requirements as other affected non-
federal vehicles. See 30 TAC 114.50(b)(1) and (7). These rules apply to 
vehicles operated on Federal facilities as well as to non-Federal 
vehicles. They in turn require compliance with the Department of Public 
Safety (DPS) annual vehicle inspection requirements. Section 02.25.00 
(Details of Inspection) of the DPS manual for vehicle emissions 
describes how the inspector must enter required data into the exhaust 
gas analyzer as prompted by the analyzer. Upon completion of the 
inspection, the report must be signed by the inspector and forwarded to 
Vehicle Inspection Records. Therefore, the additional reporting 
requirement for Federal vehicles is not essential for reporting and 
compliance purposes. The same purposes are served by the other 
reporting requirement that applies to all affected vehicles, whether 
Federal or non-federal.
    The March 1996 I/M rules were codified differently than the April 
and December 2000 rules. The State

[[Page 57263]]

submitted a Recodification SIP that we approved on July 1, 1998 (63 FR 
35839). That approval acted upon the rule numbering alone and did not 
approve any new or revised rules into the SIP at that time. The rule 
numbers that appear in this action are the current recodified rule 
numbers.
    On February 8, 1999, the State submitted a program effectiveness 
demonstration as required by the NHSDA. We reviewed Texas' 18-month 
program effectiveness demonstration as required by the I/M provisions 
of the NHSDA. This Act allowed States to claim full (100%) credit for 
test and repair I/M networks that previously had been allowed to claim 
only 50% effectiveness credit. We determined that the demonstration is 
an acceptable approach to meeting the requirement of the NHSDA, and 
that the State's emission reduction credit estimate was valid. 
Therefore, we are approving Texas' program effectiveness demonstration.

What comments did EPA receive in response to the proposed rules?

    Comments on the October 3, 1996, proposal were addressed in the 
Interim Final Rule (62 FR 37138, July 11, 1997).
    No comments were received on the January 22, 2001, proposal.
    EPA received comments on the June 11, 2001, Notice of Proposed 
Rulemaking (NPR) from citizens of Brazoria, Fort Bend, and Montgomery 
Counties under a cover letter from the Brazoria County Criminal 
District Attorney, and the Department of the Air Force on behalf of the 
Department of Defense (DoD).

Federal Facility Requirements

    Comment: The DoD commented that it is illegal for Federal Facility 
commanders to report to the State, as required by 30 TAC 114.50(b)(2), 
and the I/M revision should be disapproved by our agency. This is based 
on the Department of Justice's opinion which concluded that the 
authority for States to regulate vehicle use activity in 40 CFR 
51.356(a)(4) exceeded the waiver of sovereign immunity set forth in 42 
U.S.C. 7418(c) and (d).
    Response: Texas revised its regulations to include EPA's Federal 
facilities' reporting requirement found in 40 CFR 51.356(a)(4). This 
particular Federal regulation requires an approvable State I/M program 
to have Federal facilities operating vehicles in the I/M program 
areas(s) report certification of compliance to the State. This 
requirement appears to be different than those for other non-Federal 
groups of affected vehicles. EPA is not requiring States to implement 
or adopt this reporting requirement dealing with Federal installations 
within I/M areas at this time. The Department of Justice has 
recommended to EPA that this particular Federal 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 or to require it for an approvable I/M 
program, if it is not constitutionally authorized. EPA will be 
addressing this provision in the future and will review State I/M SIPs 
with respect to this issue whenever a new rule is final. Therefore, for 
these reasons, EPA is not approving or disapproving the specific 
requirements of 30 TAC 114.50(b)(2) which apply to Federal facilities 
at this time as part of the Texas I/M SIP.

Remote Sensing

    Comment: Citizens of Brazoria, Fort Bend, and Montgomery counties 
questioned the scientific validity of remote sensing.
    Response: Remote sensing is a non-intrusive tool used to monitor a 
portion of the vehicle fleet and identify excessive polluters as a 
complement to the traditional mobile source emission control program. 
It is designed to detect potentially high-emitting vehicles. We 
recognize that remote sensing is not currently as accurate as the 
tailpipe test in characterizing vehicle emissions, and therefore the 
remote sensing program requires identified vehicles to submit to a 
confirmatory tailpipe test for validation of remote sensing results.
    Comment: Citizens of Brazoria, Fort Bend, and Montgomery counties 
asked why commuters from Harris county to surrounding counties are not 
subject to remote sensing?
    Response: The remote sensing program serves two functions in the 
TMC I/M program. One function is to identify commuters coming into 
Harris County from adjacent nonattainment counties. The other function 
is to characterize the emissions of the fleet of on-road vehicles as a 
whole in the entire nonattainment area, as required by Federal rule. To 
accomplish this objective, high emitting vehicles are also identified 
regardless of the nonattainment county in which they are registered. 
This includes Harris County.
    Comment: Citizens of Brazoria, Fort Bend, and Montgomery counties 
also stated that remote testing is unconstitutional as it involves 
surveillance and documentation of the citizenry when no crime has been 
committed and for innocent travel.
    Response: The remote sensing program is operated on public highways 
and roadways on which there is no expectation of privacy. The remote 
sensing program tracks and documents exhaust plumes from high emitting 
vehicles, not the drivers of those vehicles. Vehicles are identified 
through license plates which are put on vehicles for law enforcement 
purposes, of which remote sensing is an example. Vehicle drivers are 
never tracked or identified.
    Being detected as a high-emitter by remote sensing equipment is not 
a crime. If a vehicle is detected as a high emitter, the operator is 
required to bring the vehicle in for an emission test. If the operator 
chooses to repair the vehicle before the test and the vehicle passes, 
there are no further conditions to be met. If the vehicle fails the 
test, the operator must repair the vehicle or qualify for a waiver 
within a certain period of time. If an operator fails to bring the 
noncompliant vehicle in for a test or does not follow up after a failed 
test, only then is the operator subject to penalty under the program.

Vehicle Coverage

    Comment: Citizens of Brazoria, Fort Bend, and Montgomery counties 
questioned why newer vehicles that come from the manufacturer equipped 
with emission control devices are required to submit to emission 
control testing, when a tampering check would be sufficient.
    Response: The antitampering inspection visually identifies that 
certain emission control equipment is installed on the vehicle and has 
not been disconnected. It does not guarantee that this equipment is 
functioning or functioning properly. There is a small percent of newer 
vehicles on which emission control equipment fails. Because some newer 
vehicles do fail, and because vehicles subject to testing are more 
likely to be better maintained, the amount of emission reduction 
benefits that can be obtained from inspections is reduced as more model 
years are exempt from the program. In addition, because newer vehicles 
are still under manufacturer's warranty, identifying emissions-related 
problems is viewed as consumer protection and may potentially save the 
vehicle's owner future repair costs.

Repair Assistance

    Comment: Citizens of Brazoria, Fort Bend, and Montgomery counties 
were concerned about repair assistance for low-income owners of non-
compliant vehicles. They stated that when a

[[Page 57264]]

vehicle owner is told he cannot drive his non-compliant vehicle, that 
is an unconstitutional taking.
    Response: In order to assist the public, the TMC I/M program 
includes two waiver options: the minimum expenditure waiver and the 
individual vehicle waiver. The minimum expenditure waiver is available 
to those who have made repairs to their vehicle within the established 
criteria an met the dollar limits established by Federal I/M rule. The 
individual vehicle waiver is for those who cannot meet emissions 
standards despite every reasonable effort by the motorist. In addition 
to these two waivers, the TMC I/M program offers the low-income time 
extension that allows one test cycle (12 months) for the owner to bring 
the vehicle into compliance.
    Furthermore, the Texas Legislature, in the 2001 session, passed a 
law that provides the opportunity for participating I/M program 
counties to offer repair assistance to low-income vehicle owners. Also, 
when it is not cost-effective to repair a noncompliant vehicle, the 
program offers a vehicle replacement/scrappage program that will assist 
low-income vehicle owners to obtain cleaner vehicles. Participation in 
the vehicle replacement/scrappage program is entirely voluntary, and no 
vehicle owner will be forced to participate.

EPA's Rulemaking Action

    We are granting final full approval of Texas I/M program referred 
to as the Texas Motorist Choice program pursuant to sections 110 and 
182 of the Act, and section 348 of the NHSDA.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
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 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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. 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 Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 January 14, 2002. 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 references, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 15, 2001.
Gregg A. Cooke,
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 et seq.

Subpart SS--Texas

    2. In Sec. 52.2270 the table in paragraph (c) is amended under 
Chapter 114 (Reg 4).
    a. Under Subchapter A, by adding a new entry for Section 114.2;
    b. After Subchapter A, by adding a new Subchapter B entitled 
``Subchapter B--Vehicle Inspection and Maintenance'' and individual 
entries for Sections 114.50, 114.51, 114.52, and 114.53.
    The additions read as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 57265]]



                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                                State
          State citation                Title/subject        submittal/     EPA approval        Explanation
                                                            approval date       date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
  Chapter 114 (Reg 4)--Control of
Air Pollution from Motor Vehicles
 
*                  *                  *                  *                  *                  *
                                                        *
    Subchapter A: Definitions
 
*                  *                  *                  *                  *                  *
                                                        *
Section 114.2.....................  Inspection and             04/19/2000      11/14/2001
                                     Maintenance                                  [Insert
                                     Definitions.                                 Federal
                                                                                 Register
                                                                               citation.]
 
*                  *                  *                  *                  *                  *
                                                        *
 Subchapter B: Vehicle Inspection
         and Maintenance
Section 114.50....................  Vehicle Emission           12/06/2000      11/14/2001  Subsection
                                     Inspection                                   [Insert   114.50(b)(2) is NOT
                                     Requirements.                                Federal   part of the approved
                                                                                 Register   SIP.
                                                                               citation.]
Section 114.51....................  Equipment Evaluation       12/06/2000      11/14/2001
                                     Procedures for                               [Insert
                                     Vehicle Exhaust Gas                          Federal
                                     Analyzers.                                  Register
                                                                               citation.]
Section 114.52....................  Waivers and                12/06/2000      11/14/2001
                                     Extensions for                               [Insert
                                     Inspection                                   Federal
                                     Requirements..                              Register
                                                                               citation.]
Section 114.53....................  Inspection and             12/06/2000      11/14/2001
                                     Maintenance Fees.                            [Insert
                                                                                  Federal
                                                                                 Register
                                                                               citation.]
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 01-27587 Filed 11-13-01; 8:45 am]
BILLING CODE 6560-50-P