Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan Vehicle Inspection and Maintenance Programs

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-39-1-6272; FRL-4886-2]

Approval and Promulgation of Air Quality Implementation Plans;

Texas; Revision to the State Implementation Plan Vehicle Inspection and

Maintenance Programs

AGENCY: Environmental Protection Agency (EPA)

ACTION: Proposed rulemaking.

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SUMMARY: In this action, the EPA is proposing to approve the Texas

Natural Resource Conservation Commission (TNRCC) Inspection and

Maintenance (I/M) State Implementation Plan (SIP), which includes a SIP

narrative entitled ``Revisions to the State Implementation Plan (SIP)

for the Control of Ozone Air Pollution-Inspection/Maintenance SIP for

Dallas/Fort Worth, El Paso, Beaumont/Port Arthur, and Houston/Galveston

Ozone Nonattainment Areas,'' and Regulation IV, 31 TAC 114.3, entitled

``Vehicle Emissions Inspection and Maintenance Program,'' as a revision

to the Texas SIP for ozone. On November 12, 1993, and on March 9, 1994,

Texas submitted SIP revision requests to the EPA to satisfy the

requirements of sections 182(b)(4) and 182(c)(3) of the Clean Air Act,

as amended in 1990 and Federal I/M rule 40 CFR part 51, subpart S.

These SIP revisions will require vehicle owners to comply with the

Texas I/M program in the four Texas ozone nonattainment areas

classified as moderate or worse. This revision applies to the Texas

counties of Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort

Bend, Galveston, Harris, Jefferson, Liberty, Montgomery, Orange,

Tarrant, and Waller.

DATES: Comments on this proposed action must be received in writing on

or before June 17, 1994.

ADDRESSES: Written comments should be sent to Mr. Tom Diggs at USEPA

Region 6, (6T-AP), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-

2733. The State submittal and the technical support document (TSD)

prepared by the EPA are available for public review at the above

address and at the TNRCC, Mobile Source Division, I/M Section, P.O. Box

13087, Austin, Texas 78711-3087. Interested persons wanting to examine

these documents should make an appointment with the appropriate office

at least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Davis, at(214) 655-7584.

SUPPLEMENTARY INFORMATION:

Clean Air Act Requirements

The Clean Air Act, as amended in 1990 (CAA or Act), requires States

to make changes to improve existing I/M programs or implement new ones.

Section 182(a)(2)(B) required any ozone nonattainment area which has

been classified as ``marginal'' (pursuant to section 181(a) of the CAA)

or worse with an existing I/M program that was part of a SIP, or any

area that was required by the 1977 Amendments to the CAA to have an I/M

program, to immediately submit a SIP revision to bring the program up

to the level required in past EPA guidance or to what had been

committed to previously in the SIP, whichever was more stringent. All

carbon monoxide nonattainment areas were also subject to this

requirement to improve existing or previously required programs to this

level. In addition, all ozone nonattainment areas classified as

moderate or worse must implement a basic or an enhanced I/M program

depending upon its classification, regardless of previous requirements.

In addition, Congress directed the EPA in section 182(a)(2)(B) to

publish updated guidance for State I/M programs, taking into

consideration findings of the Administrator's audits and investigations

of these programs. The States were to incorporate this guidance into

the SIP for all areas required by the CAA to have an I/M program. Ozone

nonattainment areas classified as ``serious'' or worse with populations

of 200,000 or more, and CO nonattainment areas with design values above

12.7 parts per million (ppm.) and populations of 200,000 or more, and

metropolitan statistical areas with populations of 100,000 or more in

the northeast ozone transport region were required to meet EPA guidance

for enhanced I/M programs.

The EPA has designated four areas as ozone nonattainment in the

State of Texas. The Houston/Galveston ozone nonattainment area is

classified as severe and contains the following eight counties:

Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,

and Waller. The Beaumont/Port Arthur ozone nonattainment area is

classified as serious and contains the following three counties:

Hardin, Jefferson, and Orange. The 1980 population of the Beaumont/Port

Arthur area was less than 200,000. The El Paso ozone nonattainment area

is classified as serious and contains the county of El Paso. The

Dallas/Fort Worth ozone nonattainment area is classified as moderate

and contains the following four counties: Collin, Dallas, Denton, and

Tarrant. The designations for ozone were published in the Federal

Register (FR) on November 6, 1991, and November 30, 1992, and have been

codified in the Code of Federal Regulations (CFR). See 56 FR 56694

(November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40

CFR 81.300-81.437. In addition, a segment of El Paso Texas has been

designated nonattainment for carbon monoxide (CO) and classified as

moderate with a design value below 12.7 ppm., under sections

107(d)(4)(A) and 186(a) of the CAA. See 56 FR 56694 (November 6, 1991)

and 57 FR 13498 and 13529 (April 16, 1992). Based on these

nonattainment designations and populations, basic I/M programs are

required in the Beaumont/Port Arthur and Dallas/Fort Worth urbanized

areas, while enhanced I/M programs are required in the El Paso and

Houston/Galveston urbanized areas.

By this action, the EPA is proposing to approve this submittal. The

EPA has reviewed the State submittal against the statutory requirements

and for consistency with the EPA regulations. A summary of the EPA's

analysis is provided below. In addition, more detailed support of

approving the State submittal is contained in a TSD, dated March 23,

1994, which is available from the Region 6 Office, listed above.

I/M Regulation General SIP Submittal Requirements

On November 5, 1992 (57 FR 52950), the EPA published a final

regulation establishing the I/M requirements, pursuant to section 182

and 187 of the CAA. The I/M regulation was codified at 40 CFR part 51,

subpart S, and requires States to submit an I/M SIP revision which

includes all necessary legal authority and the items specified in 40

CFR 51.372 (a)(1) through (a)(8) by November 15, 1993. The State has

met these requirements.

State Submittal

On November 12, 1993, and on March 9, 1994, the State of Texas

submitted its I/M SIP for its four nonattainment areas. Public hearings

for the submittal were held on August 23, 24, 25, and 26, 1993, for the

November 12, 1993, SIP submittal, and on December 16, 1993, for the

March 9, 1994, SIP submittal. The EPA submitted comments for these

hearings on August 27, 1993, and on December 21, 1993, respectively.

The EPA's primary comments concerned the State's proposed use of a

renewable economic hardship waiver and the demonstration of the

enhanced performance standard in Houston/Galveston and El Paso. The

State has adequately responded to these concerns.

The submittals provide for the implementation of basic I/M programs

in the Dallas/Fort Worth and Beaumont/Port Arthur areas beginning on

July 1, 1994, and for enhanced I/M programs in Houston/Galveston and El

Paso beginning on January 1, 1995. Texas will be implementing biennial,

test only I/M programs which meet the requirements of the EPA's

performance standard and other requirements contained in the Federal I/

M rule in the applicable nonattainment counties. Testing will be

overseen by the TNRCC and two managing I/M contractors who will be

subcontracting actual testing to operating contractors. Other aspects

of the Texas I/M program include: Testing of 1968 and later light duty

vehicles and trucks and heavy duty trucks, evaporative emission testing

for 1971 and later model year vehicles, a test fee to ensure the State

has adequate resources to implement the program, enforcement by

registration denial and vehicle inspection stickers, a repair

effectiveness program, contractual requirements for testing

convenience, quality assurance, data collection, minimum expenditure

time extension and hardship waivers, reporting, test equipment and test

procedure specifications, public information and consumer protection,

and inspector training and certification and penalties against

inspector incompetence. In addition, the enhanced I/M programs will

include: IM240 testing for newer vehicles (the Dallas/Fort Worth basic

I/M program will also include IM240 testing), an on-road testing

program, and emission recall enforcement. An analysis of how the Texas

I/M program meets the Federal SIP requirements by section of the

Federal I/M rule is provided below.

A. Applicability

The SIP needs to describe the applicable areas in detail and,

consistent with 40 CFR 51.372, needs to include the legal authority or

rules necessary to establish program boundaries.

The Texas I/M regulations specify that I/M programs be implemented

in the counties as described above. Basic I/M programs are to be

implemented in the Dallas/Fort Worth and Beaumont/Port Arthur areas

while enhanced I/M programs are to be implemented in the Houston/

Galveston and El Paso areas.

B. Enhanced and Basic I/M Performance Standard

The I/M programs provided for in the SIP are required to meet a

performance standard, either basic or enhanced as applicable, for the

pollutants that caused the affected area to come under I/M

requirements. The performance standard sets an emission reduction

target that must be met by a program in order for the SIP to be

approvable. The SIP must also provide that the program will meet the

performance standard in actual operation, with provisions for

appropriate adjustments if the standard is not met.

The State has submitted a modeling demonstration using the EPA

computer model MOBILE5a showing that the enhanced performance standard

is met in the Houston/Galveston area. The State has also submitted

modeling for the basic I/M areas of Dallas/Fort Worth and Beaumont/Port

Arthur demonstrating that these programs meet the EPA's performance

standard as well.

C. Network Type and Program Evaluation

The SIP needs to include a description of the network to be

employed, the required legal authority, and in the case of areas making

claims for case by case equivalency, the required demonstration. Also,

for enhanced I/M areas, the SIP needs to include a description of the

evaluation schedule and protocol, the sampling methodology, the data

collection and analysis system, the resources and personnel for

evaluation, and related details of the evaluation program, and the

legal authority enabling the evaluation program.

The Texas program has chosen to implement a test only I/M network

program design which will utilize managing and operating contractors to

implement the inspection portion of the program.The State has chosen

not to make a demonstration for case by case equivalency for a

different network design. The TNRCC describes and commits, in its SIP

narrative, to institute a continuous ongoing evaluation program

consistent with the Federal I/M rule. The results of the evaluation

program will be reported to the EPA on a biennial basis. Legal

authority which is contained in the Texas Health and Safety Code

sections 382.037-382.039 (Vernon 1944), authorizes the TNRCC to

implement this contractor operated test only program and conduct the

program evaluation.

D. Adequate Tools and Resources

The SIP needs to include a description of the resources that will

be used for program operation, and discuss how the performance standard

will be met, which includes: (1) A detailed budget plan which describes

the source of funds for personnel, program administration, program

enforcement, purchase of necessary equipment (such as vehicles for

undercover audits), and any other requirements discussed throughout,

for the period prior to the next biennial self-evaluation required in

Federal I/M rule, (2) a description of personnel resources, the number

of personnel dedicated to overt and covert auditing, data analysis,

program administration, enforcement, and other necessary functions and

the training attendant to each function.

The TNRCC Chapter of the 1993 Appropriations Bill authorizes the

TNRCC to collect a fee from the I/M contractors to cover the costs of

administrating, overseeing, and enforcing the I/M program which will be

no less than 1.25 dollars per paid vehicle inspection. The SIP

narrative also describes the budget, staffing support, and equipment

needed to implement the program.The State expects to dedicate a

staffing level of 32 full time equivalent employees to support the

program.

E. Test Frequency and Convenience

The SIP needs to include the test schedule in detail including the

test year selection scheme if testing is other than annual. Also, the

SIP needs to include the legal authority necessary to implement and

enforce the test frequency requirement and explain how the test

frequency will be integrated with the enforcement process. In addition,

in enhanced I/M programs, the SIP needs to demonstrate that the network

of stations providing test services is sufficient to insure short

waiting times to get a test and short driving distances.

The Texas SIP commits to require biennial inspections for all

subject motor vehicles that are at least one year old. The inspections

will be conducted on odd or even years corresponding to the model year

of the vehicle and timed with the registration process which is

explained in the SIP. The authority for the enforcement of the testing

frequency is contained in the Texas I/M rule. Short waiting times and

short driving distances relating to network design are addressed in the

contracts between the State and its managing contractors. The State is

contractually requiring a 15 minute average waiting time and driving

distances of 80% of the vehicle population located within five miles of

the inspection facility, 95% of the vehicle population located within

twelve miles of the inspection facility, and 99% of the vehicle

population located within 20 miles of the inspection facility.

F. Vehicle Coverage

The SIP needs to include 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.

Also, the SIP needs to include a description of any special exemptions

which will be granted by the program, and an estimate of the percentage

and number of subject vehicles which will be impacted. Such exemptions

need to be accounted for in the emission reduction analysis. In

addition, the SIP needs to include the legal authority or rule

necessary to implement and enforce the vehicle coverage requirement.

The Texas program includes coverage of all 1968 and newer model

year gasoline powered light-duty vehicles and light-duty and heavy-duty

trucks, registered or required to be registered within the

nonattainment areas and fleets primarily operated within an I/M program

area. Vehicles will be identified through the Texas Department of

Transportation (DOT) vehicle registration database. There are no

special classes of vehicles which are exempt from the emission testing

program. Legal authority for the vehicle coverage is contained in the

Texas I/M rule.

The State does have a provision for limited use of an exemption

given to vehicles on a case by case basis by the Director. The SIP

indicates in part that a ``motorist may petition the Executive Director

of the TNRCC for the exemption of a motor vehicle from the requirements

of the vehicle emissions I/M program contained in the revised Texas I/M

SIP, upon demonstration that the motorist has taken reasonable measures

to comply with such requirements and that such exemption shall have

minimal impact on air quality'' 30 TAC section 114.3(l). While the EPA

believes this applies only in very limited situations, the EPA has

asked the State to submit a letter of intention reiterating the

Preamble to the State rule and specifically stating how this exemption

is to be used. As an additional safeguard against misinterpretation,

the State has agreed to clarify the rule at a later date to reflect

more accurately the specific conditions under which the State is

planning to exercise this provision. The two cases the State cited in

their response to comments in the Texas I/M preamble, were the cases of

unavailable emission related parts needed for repair, and ``grey''

market vehicles which were not built to meet U.S. emission requirements

and have a letter of exemption from EPA. TNRCC estimated in the SIP

that it was anticipating exempting less that 500 vehicles through this

mechanism. EPA's concern is regarding the more broad nature of the

regulatory language. EPA will be approving this provision based upon

the State's intent as seen in the Preamble to the State rule and the

letter concerning how this provision of the Texas I/M program will be

implemented and clarified at a later date, and a commitment to ensure

that the number of vehicles exempted will not prevent the State from

meeting EPA's performance standard. EPA understands that Texas intends

to limit the use of this exemption to only the types of vehicles noted

in the preamble and will be approving the exemption only on this basis.

EPA expects that this letter will be received before this action is

published as a final rule and will be incorporating it into the SIP to

clarify the limited nature of this approval.

G. Test Procedures and Standards

The SIP needs to include a description of each test procedure used.

The SIP also needs to include the rule, ordinance, or law describing

and establishing the test procedures.

The Texas I/M SIP obligates the State to do IM240 testing in

accordance with the EPA's guidance document entitled ``High-Tech I/M

Test Procedures, Emission Standards, Quality Control Requirements, and

Equipment Specifications'' (Technical Guidance). The State will be

requiring IM240 tests on 1984 and later model year vehicles in the

Houston/Galveston area, on 1986 and later model year vehicles in the

Dallas/Fort Worth area, and 1988 and later vehicles in El Paso. This

model year coverage complies with the EPA's I/M regulation. All 1968

and later model year vehicles not receiving an IM240 test will receive

a loaded two speed test in accordance with the EPA's test procedures

contained in the appendices of the Federal I/M rule. The test

procedures are specifically and legally established in the Request For

Proposal (RFP), which the Texas I/M contractors are required to abide

by.

H. Test Equipment

The SIP needs to include written technical specifications for all

test equipment used in the program and shall address each of the

requirements in 40 CFR 51.358 of the Federal I/M rule. The

specifications need to describe the emission analysis process, the

necessary test equipment, the required features, and written acceptance

testing criteria and procedures.

The Texas I/M SIP obligates the State to use the written equipment

specifications contained in the EPA's IM240 Guidance Manual and

appendices of the Federal I/M rule. The Texas SIP and RFP address the

requirements in 40 CFR 51.358 and include descriptions of performance

features and functional characteristics of the computerized test

systems. The necessary test equipment, required features, and

acceptance testing criteria are mandated in the RFP.

I. Quality Control

The SIP needs to include a description of quality control and

recordkeeping procedures. The SIP needs to include the procedures

manual, rule, and ordinance or law describing and establishing the

procedures of quality control and requirements.

The Texas I/M SIP narrative and RFP contain descriptions and

requirements establishing the quality control procedures in accordance

with the Federal I/M rule. These requirements will help ensure that

equipment calibrations are properly performed and recorded as well as

maintaining compliance document security.The quality control procedures

manual is contained in the RFP. The Texas SIP obligates the State to

comply with all specifications for all quality control per Appendix A

of the Federal I/M rule.

J. Waivers and Compliance via Diagnostic Inspection

The SIP needs to include a maximum waiver rate expressed as a

percentage of initially failed vehicles. This waiver rate needs to be

used for estimating emission reduction benefits in the modeling

analysis. Also, the State needs to take corrective action if the waiver

rate exceeds that estimated in the SIP or revise the SIP and the

emission reductions claimed accordingly. In addition, the SIP needs to

describe the waiver criteria and procedures, including cost limits,

quality assurance methods and measures, and administration. Lastly, the

SIP shall include the necessary legal authority, ordinance, or rules to

issue waivers, set and adjust cost limits as required, and carry out

any other functions necessary to administer the waiver system,

including enforcement of the waiver provisions.

Cost limits for the minimum expenditure waivers must be in

accordance with the CAA and Federal I/M rule. These limits are $450

adjusted annually in the enhanced I/M areas of Houston/Galveston and El

Paso, and $200 for 1981 and later model year vehicles and $75 for 1980

and earlier model year vehicles in the areas of Dallas/Fort Worth and

Beaumont/Port Arthur. The Texas program includes waiver rates as

percentages of initially failed vehicles of 3% in the Houston/

Galveston, El Paso, and Dallas/Fort Worth areas, and 1% for the

Beaumont/Port Arthur area. These waiver rates are used in the modeling

demonstration. The TNRCC commits in the SIP that if the waiver rates

are higher than estimated the State will take corrective action to

address the deficiency. The SIP describes the three types of waivers

that the State will allow, which include a minimum expenditure, time

extension, and one time hardship waiver provisions. These waivers are

consistent with the Federal I/M rule. The proper criteria, procedures,

quality assurance and administration regarding the issuance of waivers

will be ensured by the TNRCC and managing contractor and are contained

in the SIP narrative and RFP. In addition, the waiver criteria

including minimum expenditure requirements are contained in the Texas

I/M rule.

K. Motorist Compliance Enforcement

The SIP needs to provide information concerning the enforcement

process including: (1) A description of the existing compliance

mechanism if it is to be used in the future and the demonstration that

it is as effective or more effective than registration-denial

enforcement; (2) an identification of the agencies responsible for

performing each of the applicable activities in this section; (3) a

description of and accounting for all classes of exempt vehicles; and

(4) a description of the plan for testing fleet vehicles, rental car

fleets, leased vehicles, and any other special classes of subject

vehicles, e.g., those operated in (but not necessarily registered in)

the program area. Also, the SIP needs to include a determination of the

current compliance rate based on a study of the system that includes an

estimate of compliance losses due to loopholes, counterfeiting, and

unregistered vehicles. Estimates of the effect of closing such

loopholes and otherwise improving the enforcement mechanism need to be

supported with detailed analyses. In addition, the SIP needs to include

the legal authority to implement and enforce the program. Lastly, the

SIP needs to include a commitment to an enforcement level to be used

for modeling purposes and to be maintained, at a minimum, in practice.

The State has chosen to use registration denial as its primary

enforcement mechanism in both basic and enhanced I/M areas. Motorists

will be denied vehicle registration unless the vehicle has complied

with the I/M program requirements. Also, the State will implement a

sticker enforcement program as a secondary enforcement mechanism. The

motorist compliance enforcement program will be implemented by the

Texas DOT and TNRCC. There are no classes of vehicles exempt from this

program. Fleet vehicles, rental car fleets, and leased vehicles that do

not receive an annual registration will be required to meet the same

program requirements as all other vehicles that receive annual

registration. Current compliance rates are estimated between 80-98%,

while future compliance rates with the new program are estimated at

96%. The SIP commits to revise the I/M SIP if the TNRCC fails to meet

the 96% compliance rate. The legal authority to implement and enforce

the program is included in the Texas statutes and regulations contained

and cited in the SIP.

In the formal public comment period of the Texas I/M SIP hearings,

the EPA commented that the SIP needed to contain a commitment that

noncompliance cases ``cannot'' be closed until compliance is

demonstrated. The State responded by making the commitment that

``noncompliant cases will not be closed until the registration is

completed or other compliance is demonstrated. Until compliance is

demonstrated, a vehicle found in violation of TNRCC section 114.3(m)

will continue to be in violation of the rule, even if a fine has been

paid.'' The EPA is somewhat concerned that because of the relatively

low monetary value of fines available, in comparison to the minimum

expenditure required for waivers, that projected compliance rates will

be achievable with this system in the future, and will be evaluating

them at a later date. However, the EPA recognizes that there will be a

significant improvement in motorist compliance enforcement in the new

I/M program, and the State's commitment to revise the program if

projected compliance rates are not met.

L. Motorist Compliance Enforcement Program Oversight

The SIP needs to include a description of enforcement program

oversight and information management activities.

The Texas I/M SIP provides for regular auditing of its enforcement

program and the following of effective management practices, including

adjustments to improve the program when necessary. These program

oversight and information management activities are described in the

SIP narrative and include: the establishment of written procedures for

personnel engaged in I/M document handling and processing, an on-line

telecommunications network to support the State's oversight and

management requirements, and an I/M database which will be compared to

the registration database to determine program effectiveness.

M. Quality Assurance

The SIP needs to include a description of the quality assurance

program, and written procedures manuals covering both overt and covert

performance audits, record audits, and equipment audits. This

requirement does not include materials or discussion of details of

enforcement strategies that would ultimately hamper the enforcement

process.

The Texas I/M SIP includes a description of its quality assurance

program. The program includes operation and progress reports and overt

and covert audits of all emission inspectors and emission inspection

and referee facilities and will be conducted by the TNRCC and its

managing contractor. Procedures and techniques for overt and covert

performance, record, and equipment audits will be given to auditors and

updated as needed.

N. Enforcement Against Contractors, Stations, and Inspectors

The SIP needs to include the penalty schedule and the legal

authority for establishing and imposing penalties, civil fines, license

suspension, and revocations. In the case of State constitutional

impediments to immediate suspension authority, the State Attorney

General shall furnish an official opinion for the SIP explaining the

constitutional impediment as well as relevant case law. Also, the SIP

needs to 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 other aspects of the enforcement of the

program requirements, the resources to be allocated to this function,

and the source of those funds. In States without immediate suspension

authority, the SIP needs to demonstrate that sufficient resources,

personnel, and systems are in place to meet the three day case

management requirement for violations that directly affect emission

reductions.

The Texas I/M SIP includes specific penalties in its enforcement

against contractors, stations, and inspectors in accordance with the

Federal I/M rule. The SIP includes the State's enforcement procedures

which can be pursued through either contractual or regulatory action.

The TNRCC has the authority to immediately suspend a station inspector

for violations that directly affect emission reduction benefits. Legal

authority for establishing and imposing penalties, civil fines, license

suspension, and revocations are contained in the Texas Clean Air Act,

subchapter D, Texas I/M rule, and contractual enforcement mechanisms

contained in the RFP. The TNRCC is planning to assign 6 full-time

equivalent employees to covert and overt auditing as well as additional

resources required for enforcement oversight provided by the managing

contractor, the source of which will be funded by the inspection fee.

O. Data Analysis and Reporting

The SIP needs to describe the types of data to be collected.

The Texas I/M SIP provides collecting test data to link specific

test results to specific vehicles, I/M program registrants, test sites,

and inspectors. The SIP lists the specific types of test data and

quality control data which will be collected. The data will be used to

generate reports in the areas of test data, quality assurance, quality

control, enforcement as well as changes and weaknesses in the program.

P. Inspector Training and Licensing or Certification

The SIP needs to include a description of the training program, the

written and hands-on tests, and the licensing or certification process.

The Texas I/M SIP provides for the implementation of training,

certification, and refresher programs for emission inspectors. The SIP

describes this program and curriculum which include written and hands-

on testing at least every two years. All inspectors will be required to

be certified to inspect vehicles in the Texas I/M program.

Q. Improving Repair Effectiveness

The SIP needs to 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 of this

section for enhanced I/M programs, and a description of the repair

technician training resources available in the community.

The Texas SIP includes a description of the technical assistance,

performance monitoring, and repair technician training programs to be

implemented. The State will regularly inform repair facilities

regarding changes to the inspection program, training course schedules,

common problems, and potential solutions for particular engine

families, diagnostic tips, repairs, and other assistance issues. The

TNRCC will also ensure that a repair technician hotline will be

available for repair technicians. Performance monitoring statistics of

certified repair facilities will be provided to motorists whose

vehicles fail the I/M tests in enhanced I/M areas. The State will also

ensure that adequate repair technician training exists through the

establishment of an advisory workgroup.

R. Compliance With Recall Notices

The SIP needs to describe, for enhanced I/M programs, the

procedures used to incorporate the vehicle recall lists provided into

the inspection or registration database, the quality control methods

used to insure that recall repairs are properly documented and tracked,

and the method (inspection failure or registration denial) used to

enforce the recall requirements.

The Texas I/M SIP ensures that vehicles subject to enhanced I/M

programs and that are included in either a voluntary emission recall or

a remedial plan determination pursuant to the CAA, have had the

appropriate repair made prior to the inspection. The managing

contractor will identify vehicles which have not been identified as

having completed recall repairs by an electronic means. Motorists with

unresolved recall notices will be required to show proof of compliance

or will be denied the opportunity for inspection. The SIP also commits

to comply with the policies of the National Recall Committee and

additional EPA rulemaking when available.

S. On-road Testing

The SIP needs to include a detailed description of the on-road

testing program required in enhanced I/M areas, including the types of

testing, test limits and criteria, the number of vehicles (the

percentage of the fleet) to be tested, the number of employees to be

dedicated to the on-road testing effort, the methods for collecting,

analyzing, utilizing, and reporting the results of on-road testing and,

the portion of the program budget to be dedicated to on-road testing.

Also, the SIP needs to include the legal authority necessary to

implement the on-road testing program, including the authority to

enforce off-cycle inspection and repair requirements. In addition,

emission reduction credit for on-road testing programs can only be

granted for a program designed to obtain significant emission

reductions over and above those already predicted to be achieved by

other aspects of the I/M program. The SIP needs to include technical

support for the claimed additional emission reductions.

The Texas I/M SIP includes a detailed description of its on-road

testing program. The testing program will include 1/2 of 1% of the

subject vehicles or 20,000 vehicles, whichever is less. Vehicles with

emission readings measured by remote sensing devices of 6.0% CO or

greater will be required to get an out-of-cycle inspection at a vehicle

emission inspection facility. The State may also utilize voluntary

roadside pullovers to conduct anti-tampering checks in conjunction with

loaded or idle emission testing. This program will be staffed by a

State contractor overseen by the TNRCC. Data collection and reporting

will be done using the general record keeping and reporting provisions

of the I/M program. The legal authority for this program is contained

in the Texas I/M rule. The State did not include additional modeling

credit for this program in their modeling demonstration needed to meet

the EPA's performance standard.

T. Concluding Statement

A more detailed analysis of the State's submittal and how it meets

the Federal requirements is contained in the EPA's technical support

document dated March 23, 1994, which is available from the Region 6

office listed above. The criteria used to review the submitted SIP

revision are based on the requirements stated in section 182 of the CAA

and the Federal I/M regulations. Based on these requirements, the EPA

developed a detailed I/M approvability checklist to be used nationally

to determine if I/M programs meet the requirements of the CAA and the

Federal I/M rule. The checklist is formatted by stating what the

Federal requirement is by section, and then followed by whether or not

the Texas program meets the criteria and where in the Texas SIP

submittal the requirements are met. This checklist based on the CAA and

Federal I/M regulations formed the primary basis for the EPA's

technical review. The EPA has reviewed the Texas I/M SIP revision

submitted to the EPA, using the criteria stated above. The Texas

regulations and accompanying materials contained in the SIP represent

an acceptable approach to the I/M requirements and meet all the

criteria required for approvability.

Texas I/M Committal SIP

On September 27, 1993, the EPA proposed conditional approval of the

Texas I/M committal SIP which was submitted on November 13, 1992, which

included a schedule of implementation for the program. At that time,

the EPA believed that conditional approvals were appropriate for I/M

SIPs because the States could not be expected to begin developing an I/

M program meeting the requirements of the CAA and the I/M regulations

until the I/M regulations were adopted as a final rule which occurred

on November 5, 1992. In a letter dated October 21, 1993, the National

Resource Defense Counsel (NRDC) commented on the proposed approval of

the committal SIP arguing that States should have submitted full I/M

SIPs by November 15, 1992. In addition, in a Court order dated March 8,

1994, the United States Court of Appeals for the District of Columbia

Circuit concluded, as a result of an NRDC lawsuit over this matter,

that the EPA's acceptance of I/M committal SIPs was contrary to law and

improperly delayed SIP submissions beyond the statutory deadlines.

Further, the Court directed the EPA to review and either approve or

disapprove by no later that July 15, 1994, all basic and enhanced

inspection and maintenance SIPs it has already received. As a result of

this order, the EPA is taking this action to propose approval of the

Texas SIP which was submitted on November 12, 1993, and on March 9,

1994, and will not be taking further action on the ``committal'' I/M

SIP which was submitted by the State of Texas on November 13, 1992.

Proposed Action

The EPA is proposing to approve the Texas I/M SIP as meeting the

requirements of the CAA and the Federal I/M rule. All required SIP

items have been adequately addressed as discussed in this Federal

Register action.

The EPA requests comments on this proposal including the EPA's

proposal to approve the I/M SIP for Texas as meeting the requirements

of the CAA and Federal I/M rule. As indicated at the outset of this

action, the EPA will consider any comments received by June 17, 1994

and make the TSD available upon request.

Regulatory Process

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to the Office of Management and Budget (OMB)

review and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may: (1) Have an annual effect on the economy of $100 million

or more or adversely affect in a material way the economy, a sector of

the economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal government or communities;

(2) create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;(3) materially alter the

budgetary impact of entitlements, grants, user fees, or loan programs

or the rights and obligations of recipients thereof; or (4) raise novel

legal or policy issues arising out of legal mandates, the President's

priorities, or the principles set forth in the Executive Order.'' The

OMB has exempted this regulatory action from Executive Order 12866

review.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, the EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D, of the

CAA do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significantimpact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids the EPA to base its actions concerning SIPs on such

grounds. (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.

Ct. 1976); 42 U.S.C. 7410(a)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Nitrogen dioxide, Reporting and recordkeeping

requirements, Volatile organic compounds.

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

Dated: May 5, 1994.

Jane N. Saginaw,

Regional Administrator (6A).

[FR Doc. 94-12145 Filed 5-17-94; 8:45 am]

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