Approval and Promulgation of Air Quality Implementation Plans Ohio; Revision to the Enhanced Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH69-2-6680a; FRL-5646-2]

Approval and Promulgation of Air Quality Implementation Plans

Ohio; Revision to the Enhanced Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA approves submitted changes to Ohio's enhanced vehicle

inspection and maintenance program (known as E-Check) as a revision to

the State Implementation Plan (SIP) for ozone in all areas where the

State's inspection and maintenance (I/M) program is operated. The EPA's

action is based upon a request for a revision which was received by EPA

from Ohio on August 29, 1996. The revision includes a vehicle repair

spending cap and a temporary hardship extension of time for automobile

owners with failed vehicles to perform necessary repairs on vehicles

which fail the E-Check test. The repair spending cap does not affect

vehicles which require repairs and are under manufacturer warranty; it

also does not apply to owners whose vehicles have been mal-maintained

or whose emission control devices have been tampered with. The

extension of time applies to the automobile owner to which the

immediate repair of the failed vehicle would present a hardship.

The changes to the E-Check program are the result of concerns

expressed by citizens affected by the program in the areas where E-

Check has been implemented, and by Ohio legislators representing them.

The rule changes do not affect the emission reduction potential of the

measure, and, therefore, do not affect the expected emission reductions

in the maintenance plan for Cleveland and Dayton or in the 15 percent

reasonable further progress plan for Cincinnati. Therefore, the EPA is

approving the changes to the rule.

DATES: This action is effective March 7, 1997 unless adverse or

critical comments are received by February 5, 1997. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Written comments should be addressed to: J. Elmer Bortzer,

Chief, Regulation Development Section, Air Programs Branch (A-18J),

United States Environmental Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

Copies of the SIP revision request and EPA's analysis are available

for public inspection during normal business hours at the following

address: United States Environmental Protection Agency, Region 5, Air

and Radiation Division, 77 West Jackson Boulevard (A-18J), Chicago,

Illinois 60604

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Air Programs Branch,

Regulation Development Section (A-18J), United States Environmental

Protection, Region 5, Chicago, Illinois 60604, (312) 886-6084.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

On August 29, 1996, the Director, Ohio Environmental Protection

Agency, (Ohio EPA) submitted a revision to the previously approved

1 E-Check program. The submittal was reviewed for completeness and

was found to meet all of the requirements of appendix V necessary to

obtain EPA approval under section 110 of the Clean Air Act. The SIP

revision included: copy of the rule changes, notice of public hearing,

transcripts, analysis of impact, and

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responses to public comments. The legal authority was previously

established, and a schedule for implementation was not required since

the State had already begun to implement the changes. The revision,

which is expected to provide for broader consumer acceptance of the E-

Check program, is expressed in two of the State's rules: Ohio

Administrative Code (OAC) 3745-26-01 and OAC 3745-26-12.

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\1\ Enhanced Motor Vehicle Inspection and Maintenance Program,

60 FR 16989, dated April 4, 1995.

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II. Analysis of State Submittal

The rule amendments include: broadening the definition of

``extension certificate'' which has the effect of providing a temporary

hardship extension of time for qualified vehicle owners to perform

necessary repairs on failed vehicles, and adds a vehicle repair

spending cap. The amendments also define ``low income'' in the context

of the E-Check program in order to qualify for the temporary hardship

extension.

The Director of the Ohio EPA issued a notice to amend rule 3745-26-

01 and rule 3745-26-12 which govern the E-Check I/M program in the 14

affected counties in the State. The rule amendments are intended to

address the concerns of citizens affected by the I/M program and are a

result of the opinions expressed by the public in the State's outreach

program. Public hearings were announced and held in the three affected

areas of Cincinnati, Cleveland and Dayton.

The USEPA reviewed the proposed amendments to determine the impact

the changes will have on emissions in the affected areas. Further, the

EPA reviewed the proposed changes for their impact on the maintenance

plan in the Cleveland and Dayton areas and the 15 percent plan in the

Cincinnati area. The amendments include a vehicle repair spending cap

and a temporary hardship extension of time for automobile owners to

perform necessary repairs on vehicles which fail the E-Check test.

Neither of the changes have a direct impact on the emission reductions

available from the program. The only emissions assessment method

available at present is the MOBILE5a model. This model does not

accommodate the program changes in this case and therefore changes in

emissions, if any, cannot be determined by its use. Indirectly, the

amendments may have some impact on the ability of the program to

achieve total reductions expected as discussed below. However, there

are no data available to show the effect of these indirect results.

The repair spending cap applies in situations where an automobile

owner is required to obtain repairs because of failure of the vehicle

to pass an I/M test. The spending cap, which is set at $300, represents

the maximum dollar amount required to be spent for emission related

repair. It includes the diagnostic fees, labor and parts, as well as

any costs incurred prior to the test if performed within 60 days prior

to the test and if related to the vehicle's emission control equipment.

The spending cap does not include the cost of repair of tampering, nor

does it include the cost of repair of any item covered by a dealer or

manufacturer recall or warranty.

The temporary hardship extension is available to a vehicle owner

whose vehicle fails the emissions test and meets certain criteria. The

extension allows an extra six months from the date of the test to have

the repairs performed. The hardship extension is not available for gas

cap failures nor is it available for vehicles covered by warranty or if

the failure is covered by a recall. The ``low income'' test is met if

the applicant for a hardship extension can demonstrate the household

income for the previous 12 months is not more than one-hundred fifty

percent of the poverty threshold level established by the U.S.

Department of Health and Human Services.

The Ohio EPA contacted EPA for assistance in assessing the impact

of the amendments. However, the changes proposed by Ohio EPA do not

lend themselves to assessment of emission impacts in the traditional

manner using the MOBILE5a emission factor model. The extent of the

temporary hardship extension cannot be accurately determined or

estimated because Ohio EPA has no historical data with respect to the

number of vehicle owners or lessees who would be eligible for this

delay in compliance. However, the compliance extension is for a short

duration relative to the compliance period, and vehicles in this

category will eventually be repaired. Although delayed, vehicle

emission reductions are assured. Further, the scarcity of available

information on the number of vehicle owners who would take advantage of

the limit to the spending cap prevents Ohio EPA from making a useful

estimate of the effect on emissions. This spending cap does not affect

vehicles which require repairs and are under manufacturer emissions

warranty; it also, does not apply to owners whose vehicles have been

mal-maintained or tampered. All tampering or mal-maintenance are to be

repaired by the owner.

The EPA believes that the rule changes proposed by Ohio EPA will

not have a significant impact on the emission reduction potential of

the E-Check program and will improve citizen acceptability of this

mobile source emission reduction program. The EPA finds there is good

cause for this direct final approval to become effective thirty days

from date of publication, and that a delayed effective date is

unnecessary due to the noncontroversial nature of the changes.

III. Rulemaking Action

The EPA is publishing this action without prior proposal because

EPA views this action as a noncontroversial revision and anticipates no

adverse comments. The changes were made to address concerns expressed

by citizens and legislators in Ohio and are expected to be received

favorably. Since this action is in response to previously expressed

public concerns, no adverse comments are expected. However, EPA is

publishing a separate document in this Federal Register publication,

which constitutes a ``proposed approval'' of the requested SIP revision

and clarifies that the rulemaking will not be deemed final if timely

significant adverse or critical comments are filed. The ``direct

final'' approval shall be effective on March 7, 1997, unless EPA

receives adverse or critical comments (which have not been already

addressed) by February 5, 1997.

If EPA receives such comments adverse to or critical of the

approval discussed above, EPA will publish a Federal Register document

which withdraws this final action. All public comments received will

then be addressed in a subsequent rulemaking action.

Any parties interested in commenting on this action should do so at

this time. If no such comments are received, EPA hereby advises the

public that this action will be effective on March 7, 1997.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. EPA shall consider each request for revision to the SIP in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of

[[Page 648]]

Management and Budget (OMB) has exempted this regulatory action from

Executive Order 12866 review.

B. Regulatory Flexibility Act

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

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the Clean Air Act, preparation of a

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to state, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action approves pre-existing requirements under

state or local law, and imposes no new Federal requirements.

Accordingly, no additional costs to state, local, or tribal

governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a major rule as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

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 March 7, 1997. 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Volatile organic compounds.

Dated: October 16, 1996.

William E. Muno,

Acting Regional Administrator.

Title 40 of the Code of Federal Regulations, chapter I, part 52,

subpart KK, is amended as follows:

PART 52--[AMENDED]

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

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

Subpart KK--Ohio

2. Section 52.1870 is amended by adding paragraph (c)(112) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(112) On August 29, 1996, the United States Environmental

Protection Agency received from the Ohio Environmental Protection

Agency, changes to the approved vehicle inspection and maintenance (I/

M) program which control the release of volatile organic compounds from

vehicles. These changes provide a repair spending cap of $300 and a

temporary hardship extension of time up to 6 months for owners to

perform needed repairs on vehicles which fail the I/M program test.

(i) Incorporation by reference.

(A) Rule 3745-26-01--Definitions effective May 15, 1996.

(B) Rule 3745-26-12--Requirements for motor vehicle owners in the

enhanced or opt-in enhanced automobile inspection and maintenance

program, effective May 15, 1996.

[FR Doc. 97-194 Filed 1-3-97; 8:45 am]

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