[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
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State
State citation Title/subject submittal/ EPA approval Explanation
approval date date
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* * * * * *
*
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