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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-2194

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** January 30, 1997
- **Citation:** 62 FR 4505

## Text

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA014-7195b; FRL-5682-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing a conditional interim approval and in the
alternative, disapproval of a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Massachusetts on March 27, 1996. This
submittal is a supplement to the original enhanced inspection and
maintenance submittal by the Commonwealth of Massachusetts on December
23, 1994. This revision establishes and requires the implementation of
a statewide enhanced inspection and maintenance (I/M) program. EPA is
proposing a conditional approval because the Commonwealth's SIP
revision is deficient with respect to several requirements of the CAA
and/or EPA's I/M program regulatory requirements.

DATES: Comments must be received on or before March 3, 1997.

ADDRESSES: Comments may be mailed to Susan E. Studlien, Deputy
Director, Office of Ecosystem Protection (CAA), United States
Environmental Protection Agency, JFK Federal Building, Boston, MA
02203. Copies of the documents relevant to this action are available
for public inspection by appointment during normal business hours at
the U.S. EPA, One Congress Street, Boston MA 02203.

FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3571.

I. Background

A. Impact of the National Highway System Designation Act on the Design
and Implementation of Enhanced Inspection and Maintenance Programs
Under the Clean Air Act

The National Highway System Designation Act of 1995 (NHSDA)
establishes two key changes to the enhanced I/M rule requirements
previously developed by EPA. Under the NHSDA, EPA cannot require states
to adopt or implement centralized, test-only IM240 enhanced vehicle
inspection and maintenance programs as a means of compliance with
section 182, 184 or 187 of the CAA. Also under

[[Page 4506]]

the NHSDA, EPA cannot disapprove a state SIP revision, nor apply an
automatic discount to a state SIP revision under section 182, 184 or
187 of the CAA, because the I/M program in such plan revision is
decentralized, or a test-and-repair program. Accordingly, the so-called
``50% credit discount'' that was established by the EPA's I/M Program
Requirements Final Rule, (published November 5, 1992, and herein
referred to as the I/M Rule) has been effectively replaced with
presumptive equivalency criteria which place the emission reductions
credits for decentralized networks on a par with credit assumptions for
centralized networks, based upon a state's good faith estimate of
reductions as provided by the NHSDA and explained below in this
section.
EPA's I/M Rule established many other criteria unrelated to network
design or test type for states to use in designing enhanced I/M
programs. All other elements of the I/M Rule, and the statutory
requirements established in the CAA continue to be required of those
states submitting I/M SIP revisions under the NHSDA, and the NHSDA
specifically requires that these submittals must otherwise comply in
all respects with the I/M Rule and the CAA.
The NHSDA also requires states to swiftly develop, submit, and
begin implementation of these enhanced I/M programs since the
anticipated start-up dates developed under the CAA and EPA's rules have
already been delayed. In requiring states to submit these plans within
120 days of the NHSDA passage, and in allowing these states to submit
proposed regulations for this plan (which can be finalized and
submitted to EPA during the interim period) it is clear that Congress
intended for states to begin testing vehicles as soon as practicable,
now that the decentralized credit issue has been clarified and directly
addressed by the NHSDA.
Submission criteria described under the NHSDA allow for a state to
submit proposed regulations for this interim program, provided that the
state has all of the statutory authority necessary to carry out the
program. Also, in proposing the interim credits for this program,
states are required to make good faith estimates regarding the
performance of their enhanced I/M program. Since these estimates are
expected to be difficult to quantify, the state need only provide that
the proposed credits claimed for the submission have a basis in fact. A
good faith estimate of a state's program may be an estimate that is
based on any of the following: the performance of any previous I/M
program; the results of remote sensing or other roadside testing
techniques; fleet and vehicle miles traveled (VMT) profiles;
demographic studies; or other evidence which has relevance to the
effectiveness or emissions reducing capabilities of an I/M program.
This action is being taken under the authority of both the NHSDA
and section 110 of the CAA. Section 348 of the NHSDA expressly directs
EPA to issue this interim approval for a period of 18 months, at which
time the interim program will be evaluated in concert with the
appropriate state agencies and EPA. At that time, the Conference Report
on section 348 of the NHSDA states that it is expected that the
proposed credits claimed by the state in its submittal, and the
emissions reductions demonstrated through the program data may not
match exactly. Therefore, the Conference Report suggests that EPA use
the program data to appropriately adjust these credits on a program
basis as demonstrated by the program data.
Furthermore, EPA believes that in taking action under section 110
of the CAA, it is appropriate to grant a conditional approval to this
submittal since there are some deficiencies with respect to CAA
statutory and regulatory requirements (identified herein) that EPA
believes can be corrected by the state during the interim period.

B. Interim Approvals Under the NHSDA

The NHSDA directs EPA to grant interim approval for a period of 18
months to approvable I/M submittals under this Act. This Act also
directs EPA and the states to review the interim program results at the
end of 18 months, 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 emissions reductions actually measured by the state during the
program evaluation period. The NHSDA is clear that the interim approval
shall last for only 18 months, and that the program evaluation is due
to EPA at the end of that period. Therefore, EPA believes Congress
intended for these programs to start-up as soon as possible, which EPA
believes should be on or before November 15, 1997, so that sufficient
operational program data can be collected to evaluate the interim
program. EPA believes that in setting such a strict timetable for
program evaluations under the NHSDA, that Congress recognized and
attempted to mitigate any further delay with the start-up of this
program. For the purposes of this program, ``start-up'' is defined as a
fully operational program which has begun regular, mandatory
inspections and repairs, using the final test strategy and covering
each of a state's required areas. EPA proposes that if the state fails
to start its program on schedule, the approval granted under the
provisions of the NHSDA will convert to a disapproval after a finding
letter is sent to the state.
The program evaluation to be used by the state during the 18 month
interim period must be acceptable to EPA. EPA anticipates that such a
program evaluation process will be developed by the Environmental
Council of States (ECOS) group that is convening now and that was
organized for this purpose. EPA further anticipates that in addition to
the interim, short term evaluation, the state will conduct a long term,
ongoing evaluation of the I/M program as required by the I/M Rule in
Secs. 51.353 and 51.366.

C. Process for Full Approvals of This Program Under the CAA

As per the NHSDA requirements, this interim rulemaking will expire
within 18 months of the final interim approval, or the date of final
full approval. A full approval of the state's final I/M SIP revision
(which will include the state's program evaluation and final adopted
state regulations) is still necessary under section 110 and under
section 182, 184 or 187 of the CAA. After EPA reviews the state's
submitted program evaluation, final rulemaking on the state's full SIP
revision will occur.

II. EPA's Analysis of Massachusetts's Submittal

On March 27, 1996, Massachusetts Department of Environmental
Protection (DEP) submitted a revision to its State Implementation Plan
(SIP) for an enhanced I/M program to qualify under the NHSDA. The
revision consists of enabling legislation that will allow the
Commonwealth to implement the I/M program, proposed regulations, a
description of the I/M program (including a modeling analysis and
detailed description of program features), and a good faith estimate
that includes the Commonwealth's basis in fact for emission reductions
claims of the program. The Commonwealth's credit assumptions were based
upon the removal of the 50% credit discount for all portions of the
program that are based on a test-and-repair network, and the
application of the Commonwealth's own estimate of the effectiveness of
its hybrid test-and-repair program. The State has submitted three
supplemental letters to EPA on September 17, 1996,

[[Page 4507]]

November 21, 1996 and November 27, 1996.

A. Analysis of the NHSDA Submittal Criteria

Transmittal Letter
On March 27, 1996, Massachusetts submitted an enhanced I/M SIP
revision to EPA, requesting action under the NHSDA of 1995 and the CAA
of 1990. The official submittal was made by the appropriate
Commonwealth official, Mr. David Struhs, Commissioner of the Department
of Environmental Protection, and was addressed to John DeVillars,
Regional Administrator, the appropriate EPA official in the Region.
Enabling Legislation
The Commonwealth of Massachusetts has legislation, at M.G.L.c.21A
and M.G.L.c.111. paragraph 142A-D, 142J, and 142M, enabling the
implementation of an enhanced IM program.
Proposed Regulations
On March 27, 1996, the Commonwealth of Massachusetts proposed
regulations in accordance with 40 CFR Part 51, establishing an enhanced
I/M program. The regulations call for implementation of a hybrid
enhanced I/M program starting in 1997, with the installation of new
emission analyzers connected to a central computer and installation of
dynamometers in 1999, with final cut points being implemented in 2001.
The Commonwealth did not specify when the regulations will be adopted.
Since in a letter dated September 17, 1996, Massachusetts has committed
to start a full enhanced I/M program with dynamometer testing by
November 15, 1997 or by January 1998 at the latest, then EPA can
propose interim, conditional approval of the proposed Commonwealth
regulations. These regulations must be adopted by the Commonwealth and
submitted to EPA before final full approval of the I/M program.
Program Description
The program calls for biennial transient testing in either test-
only or test-and-repair facilities. The test equipment will be either
IG240 or RG240 connected to a contractor operated central computer. The
program evaluation year is 2002. Massachusetts will have a systems
contractor operating the central computer network. This contractor will
have the ability to disconnect facilities which are conducting improper
testing. The Commonwealth believes that having numerous dynamometers in
the field in test-and-repair facilities available for diagnostic work
and repair confirmation will significantly improve the quality of
repairs and emission reductions from the program.
Emission Reduction Claim and Basis for the Claim
Massachusetts will rely heavily on a systems contractor to run the
central computer system, monitor all emission testing facilities, and
take action to correct problems. Massachusetts will start transient
emission testing by November 15, 1997, or by January 1998, at the
latest, with a two year inspection cycle. Massachusetts is claiming
full IM240 credit for an IG240 or RG240 program, which is not
consistent with EPA policy as stated in an August 18, 1994, memo on
this subject. Massachusetts has not submitted any other basis in fact
such as data from another program for the credit claim. EPA allows the
use of a 96% compliance rate for a well run enforcement program, while
Massachusetts claims a 98% compliance rate without any additional
measures to justify this higher rate. The Commonwealth has recently
revised the estimated compliance rate to 96%. Massachusetts will not
issue any waivers but will allow ``grace periods'' of unspecified
length. The length of these ``grace periods'' must be defined and the
emission reduction losses included in the emission reduction
calculations. This has been clarified in a letter dated November 27,
1996, from the Commonwealth which stated ``We will incorporate these
modeling changes into the revised 15% plan''. We expect future
submittals from the Commonwealth will incorporate these assumptions.
EPA guidance provides for 100% credit for mechanic training if the
state makes provisions to ensure that only trained mechanics repair
failed vehicles. Massachusetts has assumed 100% mechanic training
credit. However, under the proposed program, although the Commonwealth
will be providing a mechanic training program, no requirement exists to
ensure vehicle owners obtain vehicle repairs by trained technicians.

B. Analysis of the EPA I/M Regulation and CAA Requirements

As previously stated, the NHSDA left those elements of the I/M Rule
that do not pertain to network design or test type intact. Based upon
EPA's review of Massachusetts' submittal, EPA believes the Commonwealth
has not complied with all aspects of the NHSDA, the CAA and the I/M
Rule. For those sections of the I/M rule or of the CAA identified below
with which the Commonwealth has not yet fully complied, EPA proposes to
conditionally approve the SIP if the Commonwealth commits within 30
days of publication of this document to correct said deficiencies by a
date (or dates) certain within 1 year of EPA interim approval.
The Commonwealth must correct these major deficiencies by the date
specified in the commitment or this conditional approval will convert
to a final disapproval under CAA section 110(k)(4). EPA has also
identified certain minor deficiencies in the SIP, which are itemized
below. EPA has determined that delayed correction of these minor
deficiencies will have a de minimis impact on the Commonwealth's
ability to meet clean air goals. Therefore, the state need not commit
to correct those deficiencies in the short term and EPA will not impose
conditions on interim approval with respect to these deficiencies. The
Commonwealth must correct these deficiencies during the 18 month term
of the interim approval, as part of the fully adopted rules that the
Commonwealth will submit to support full approval of its I/M SIP. As
long as the Commonwealth corrects the minor deficiencies prior to final
action on the Commonwealth's full I/M SIP, EPA concludes that failure
to correct the deficiencies in the short term is de minimis and will
not adversely affect EPA's ability to give interim approval to the
proposed I/M program.
Applicability--40 CFR 51.350
Sections 182(c)(3) and 184(b)(1)(A) of the Act and 40 CFR 51.350(a)
require all states in the Ozone Transport Region (OTR) which contain
Metropolitan Statistical Areas (MSAs) or parts thereof with a
population of 100,000 or more to implement an enhanced I/M program.
Massachusetts is part of the OTR and contains the following MSAs or
parts thereof with a population of 100,000 or more: Boston-Lawrence-
Salem, MA-NH CMSA, Providence-Pawtucket-Fall River, RI-MA CMSA, New
Bedford, MSA, Springfield, MSA and Worcester, MSA.
Massachusetts is classified as a serious ozone nonattainment area
statewide and is required to implement an enhanced I/M program per
section 182(c)(3) of the CAA and 40 CFR 51.350(a)(2). In addition, the
Boston area CO maintenance plan includes basic I/M as a control
strategy.
Under the requirements of the Clean Air Act, all counties in
Massachusetts would be subject to I/M program requirements. The
proposed Massachusetts I/M regulation requires that the enhanced I/M
program be

[[Page 4508]]

implemented statewide. As stated in the State submittal, the
Massachusetts I/M legislative authority in M.G.L.c.21A, and
M.G.L.c.111, paragraphs 142A-D, 142J and 142M provide the legal
authority to establish a statewide enhanced program. EPA finds that the
geographic applicability requirements are satisfied. The federal I/M
rule requires that the state program not terminate until it is no
longer necessary. EPA interprets the federal rule as stating that a SIP
which does not sunset prior to the attainment deadline for each
applicable area satisfies this requirement. The Massachusetts submittal
does not address the length of time the program will be in effect. The
program must continue past the attainment dates for all applicable
nonattainment areas in Massachusetts. In the absence of a sunset date,
EPA interprets the SIP submittal as requiring the I/M program to
continue indefinitely, and proposes to approve the program on this
basis. Once approved this unlimited term of the program will be
federally enforceable as a requirement of the SIP.
Enhanced I/M Performance Standard--40 CFR 51.351
The enhanced I/M program must be designed and implemented to meet
or exceed a minimum performance standard, which is expressed as
emission levels in area-wide average grams per mile (gpm) for certain
pollutants. The performance standard shall be established using local
characteristics, such as vehicle age mix and local fuel controls, and
the following model I/M program parameters: network type, start date,
test frequency, model year, vehicle type coverage, exhaust emission
test type, emission standards, emission control device, evaporative
system function checks, stringency, waiver rate, compliance rate and
evaluation date. The emission levels achieved by the state's program
design shall be calculated using the most current version, at the time
of submittal, of the EPA mobile source emission factor model. At the
time of the Massachusetts submittal the most current version was
MOBILE5h. Areas shall meet the performance standard for the pollutants
which cause them to be subject to enhanced I/M requirements. In the
case of ozone nonattainment areas, the performance standard must be met
for both NOX and HC. In the case of carbon monoxide areas, the
performance standard must be met for CO. This Massachusetts submittal
must meet the enhanced I/M performance standard for HC and NOX
statewide and meet the basic standard for CO in the Boston CO
maintenance area.
The Massachusetts submittal includes the following program design
parameters:

Network type--Hybrid (test only credit claim)
Start date--1999
Test frequency--biennial
Model year/ vehicle type coverage--1981+, light and heavy duty,
gasoline
Exhaust emission test type--transient
Emission standards--0.8 HC, 15.0 CO, 2.0 NOX
Emission control device check--yes
Evaporative system function checks--81+
Stringency (pre-1981 failure rate)--N/A
Waiver rate--0
Compliance rate--98%
Evaluation date(s)--2002

Massachusetts has submitted modeling demonstrations using the EPA
computer model MOBILE5h showing that the enhanced performance standard
reductions will be met in 2002. This demonstration assumed a 98%
compliance rate, 0% waiver rate, and IM 240 credits for an IG240
program. EPA questions the use of the 98% compliance rate given the
lack of an adequate description of the motorist compliance enforcement
system. EPA believes that a 96% compliance rate is achievable for a
well operated program, but rates in excess of these require additional
measures which go beyond normal enforcement and quality control
measures. The Commonwealth has assumed a 0% waiver rate but did not
estimate the impact of the proposed ``grace periods'' which will impact
emissions. The modeling assumed IM240 credits when IG240 or RG240 will
be used. This is inconsistent with the EPA policy specified in a memo
dated August 18, 1994, as well as the ECOS recommendations dated
October 4, 1996 which specify that ASM2 credits should be used for
IG240 or RG240 programs.
EPA and the Commonwealth have been working to resolve these
differences since submittal of the SIP package. In a letter dated
September 17, 1996, Massachusetts committed to adjust the start date of
dynamometer testing to be consistent with other NHSDA state programs.
Since it was not clear from this letter on what date the program would
start, EPA wrote back on October 7, 1996 to confirm the states intent
that the program would start sometime in late 1997, but no later than
January 1998. In another letter dated November 27, 1996, Massachusetts
agreed to use a 96% compliance rate and 1% waiver rate for modeling
purposes. The 1% waiver rate was supported by a description of a
program which would not allow any waivers, but would allow ``time
extensions'' only for marginal emitters and only after repairs which
result in a 50% reduction in emissions, costing up to $300 have been
done. These revised estimates are acceptable to EPA.
The Commonwealth has not revised the estimate for mechanic training
and believes that there will be a large number of dynamometers in the
Massachusetts repair network because of the hybrid system and these
dynamometers can be utilized for diagnosis of emission failures and
repair confirmation.
They also believe that there will be an extensive training network
provided for mechanics. The Commonwealth insists that this will provide
as much emission reduction as EPA's estimated reduction for mechanic
training. Since EPA has no conflicting data to refute the
Commonwealth's claim at this time, it will be considered a minor issue
which must be resolved before final approval of the program. EPA is
studying the technician training credit available, and expects to have
further guidance available prior to final full approval of the program.
EPA and Massachusetts have not been able to agree on the
appropriate emission reduction credit for the IG240 or RG240 test which
the Commonwealth will use. This is a major deficiency. The Commonwealth
claims 100% of the credit for an IM240 test without submitting any
supporting data (basis in fact). In addition, Massachusetts intends to
phase in the pass/fail standards so that those used during the initial
cycles will not be as stringent as those the program will eventually
use. Preliminary calculations done by the Commonwealth for a revised
15% plan indicate that the Commonwealth could achieve the needed 15%
reduction but not the high enhanced standard utilizing the ASM2 credits
recommended by EPA for IG240 and RG240 programs. The Commonwealth will
be able to show that the program at least meets the ``low enhanced I/M
performance standard.'' If the Commonwealth's final program analysis
indicates that use of these standards will not generate the emission
reductions needed to allow the State to meet the goals of its 15% plan,
Massachusetts will be required to redesign the I/M program to provide
additional reductions, or implement other control strategies to reach
15%. The state is not eligible to use the low enhanced performance
standard unless

[[Page 4509]]

it can meet 15% without the high enhanced standard.
EPA is proposing conditional interim approval of the Massachusetts
program at this time consistent with the intent of the NHSDA that state
I/M programs be promptly approved and implemented for an 18-month
period. EPA proposes that this approval be conditioned upon the
requirement that the Commonwealth perform and submit the necessary
modeling and demonstration that the program will meet at a minimum the
``low enhanced'' performance standard and 15% plan requirements using
MOBILE modeling input consistent with EPA guidance. This demonstration
must show as a worst case analysis that the Commonwealth will achieve a
15% reduction if the program only achieves reductions equivalent to
ASM2 credit or otherwise reduce the credit claimed by the State for I/
M. EPA proposes that the I/M modeling and complete 15% plan revised
SIP, be submitted by April 1, 1997. If the State fails to submit a
complete 15% plan by April 1, 1997, EPA proposes that the conditional
interim approval convert to a disapproval upon a finding letter from
EPA indicating that the Commonwealth has failed to submit the modeling
and demonstration of compliance with the performance standard by the
required date.
If the Commonwealth cannot meet the high enhanced I/M performance
standard, the Commonwealth may demonstrate compliance with the low
enhanced performance standard established in 40 CFR 51.351(g). That
section provides that states may select the low enhanced performance
standard if they have an approved SIP for reasonable further progress
in 1996, commonly known as a 15 percent reduction SIP or 15 percent
plan. In fact, EPA approval of 15 percent plans has been delayed, and
although EPA is preparing to take action on 15 percent plans in the
near future, it is unlikely that EPA will have completed final action
on most 15 percent plans prior to the time EPA believes it would be
appropriate to give final or conditional interim approval to I/M
programs under the NHSDA. Massachusetts is currently reassessing its 15
percent plan to include the above described I/M program changes. This
reassessment is to be based on the current program design and its
emission reduction benefit as of November 1999. If the results indicate
that the Commonwealth will not achieve a 15 percent reduction in
emissions, Massachusetts may choose to either make I/M program
improvements that would allow the program to meet the enhanced I/M
performance standard or add other provisions to its overall 15% control
plan.
In enacting the NHSDA, Congress evidenced an intent to have states
promptly implement I/M programs under interim approval status to gather
the data necessary to support state claims of appropriate credit for
alternative network design systems. By providing that such programs
must be submitted within a four month period, that EPA could approve I/
M programs on an interim basis based only upon proposed regulations,
and that such approvals would last only for an 18 month period, it is
clear that Congress anticipated both that these programs would start
quickly and that EPA would act quickly to give them interim approval.
Many states have designed a program to meet the low enhanced
performance standard, and have included that program in their 15
percent plan submitted to EPA for approval. Such states anticipated
that EPA would propose approval both of the I/M programs and the 15
percent plans on a similar schedule, and thus that the I/M programs
would qualify for approval under the low performance standard. In light
of delays in EPA action on 15 percent plans, EPA does not believe it
would be consistent with the intent of the NHSDA to delay action on
interim I/M approvals until the Agency has completed action on the
corresponding 15 percent plans. Although EPA acknowledges that under
its regulations final full approval of a low enhanced I/M program after
the 18-month evaluation period would have to await final approval of
the corresponding 15 percent plan, EPA believes that in light of the
NHSDA it can grant either final or conditional interim approval of such
I/M plans provided that the Agency has determined as an initial matter
that approval of the 15 percent plan is appropriate, and has issued a
proposed approval of that 15 percent plan.
The Commonwealth plans to submit a revised 15 percent plan. It is
possible that Massachusetts' proposed I/M program may fall short of the
enhanced I/M high performance standard but exceed the low enhanced
performance standard. If this is the case and the emission reductions
provided by the I/M program allow the Commonwealth to fulfill the
requirements of its 15 percent plan, then EPA will review the 15
percent plan and propose action on it shortly thereafter. Should EPA
propose approval of the 15 percent plan, EPA will proceed to take
conditional interim approval action on the I/M plan. EPA proposes in
the alternative that if the Agency proposes instead to disapprove the
15 percent plan, EPA would then disapprove the I/M plan as well because
the Commonwealth would no longer be eligible to select the low enhanced
performance standard under the terms of 40 CFR 51.351(g).
Network Type and Program Evaluation--40 CFR 51.353
The enhanced program shall include an ongoing evaluation to
quantify the emission reduction benefits of the program, and to
determine if the program is meeting the requirements of the Act and the
federal I/M regulation. The SIP shall include details on the program
evaluation and shall include a schedule for submittal of biennial
evaluation reports, data from a state monitored or administered and EPA
approved mass emission transient test of at least 0.1% of the vehicles
subject to inspection each year, description of the sampling
methodology, the data collection and analysis system and the legal
authority enabling the evaluation program. In order to determine
whether the state's I/M program meets the applicable standard, the
state needed to submit modeling of its program to reflect that it met
the applicable performance standard. Because of delayed program start
up and program reconfiguration, the existing modeling used by the state
to demonstrate compliance with the performance standard is no longer
accurate, as it is based on start up and phase-in of testing and cut-
points that do not reflect the current program configuration or start
dates that the state will actually implement. EPA believes, based on
the available modeling, analysis of program elements in the SIP
submittals and EPA's own extrapolation of expected emission reductions
from the program, that the delayed program start up, as compared to
that start up which was modeled by the state, will not jeopardize the
state's ability to meet the low enhanced performance standard. However,
the state must conduct new modeling using the actual program
configuration to verify that the performance standard will in fact be
met. For example, phase-in cut points corresponding to the test-type
and correct program start up dates should be included in the new
modeling.
EPA is proposing interim approval of the state program at this time
consistent with the intent of the Highway Act that state I/M programs
be promptly approved and implemented for an 18 month period. However,
EPA proposes that this approval be conditioned upon the requirement
that the state conduct and submit the necessary new modeling

[[Page 4510]]

and demonstration that the program will meet the performance standard
by a date certain within one year from final interim approval. If the
state fails to submit this new modeling by a date certain within one
year, EPA proposes that the interim approval will convert to a
disapproval upon a letter from EPA indicating that the state has failed
to timely submit the modeling and demonstration of compliance with the
performance standard. In addition, the existing I/M rules require that
the modeling demonstrate that the state program has met the performance
standard by fixed evaluation dates. The first such date is January 1,
2000. However, few state programs will be able to demonstrate
compliance with the performance standard by that date as a result of
delays in program start up and phase in of testing requirements. EPA
believes that based on the provisions of the Highway Act, the
evaluation dates in the current I/M rule have been superceeded.
Congress provided in the Highway Act for state development of I/M
programs that would start significantly later than the start dates in
the current I/M rule. Consistent with congressional intent, such
programs by definition will not achieve full compliance with the
performance standard by the beginning of 2000.
As explained above, EPA has concluded that the Highway Act
superceeded the start date requirements of the I/M rule, but that
states should still be required to start their programs as soon as
possible, which EPA has determined would be by November 15, 1997.
Therefore, EPA believes that pursuant to the Highway Act, the initial
evaluation date should be 2002. This evaluation date will allow states
to fully implement their I/M programs and complete one cycle of testing
at full cut points in order to demonstrate compliance with the
performance standard.
The Commonwealth has designed a hybrid network. Based on the
provisions of the NHSDA, there will be no automatic discount applied to
the test-and-repair portion for this type of network. The Commonwealth
has committed to meet the program evaluation requirements of 40 CFR
51.353 but failed to provide a detailed description of this part of the
program in the SIP submission. The Commonwealth must describe in detail
how these requirements will be met, including how the program
evaluation vehicles will be selected and tested. This minor deficiency
must be corrected before final full approval of the Massachusetts I/M
SIP.
Adequate Tools and Resources--40 CFR 51.354
The federal regulation requires the state to demonstrate that
adequate funding of the program is available. A portion of the test fee
or separately assessed per vehicle fee shall be collected, placed in a
dedicated fund and used to finance the program. Alternative funding
approaches are acceptable if it is demonstrated that the funding can be
maintained. Reliance on funding from the state or local General Fund is
not acceptable unless doing otherwise would be a violation of the
state's constitution. The SIP shall include a detailed budget plan
which describes the source of funds for personnel, program
administration, program enforcement, and purchase of equipment. The SIP
shall also detail the number of personnel dedicated to the quality
assurance program, data analysis, program administration, enforcement,
public education and assistance and other necessary functions.
The Commonwealth has provided for a dedicated fund for the program,
but there is no analysis of the staff or other resources needed to
implement the program. The Commonwealth must submit a detailed
evaluation of resource needs and establish a test fee which is adequate
to meet these needs. The submittal does not meet the requirements of
this section set forth in the federal I/M rule and this is a major
deficiency. In the letter dated November 27, 1996 from the
Commonwealth, it was stated that the March 27, 1996 and December 1994
submittals addressed these requirements, but neither submittal contains
the detailed description required by this section. In addition, the
December 1994 submittal was for a test-only program which required
significantly different resource allocations from the hybrid now
program anticipated by the Commonwealth. The Commonwealth, within 30
days of publication of this document, must commit to correct this
deficiency by a date certain within one year of interim conditional
approval of this submittal.
Test Frequency and Convenience--40 CFR 51.355
The enhanced I/M performance standard assumes an annual test
frequency; however, other schedules may be approved if the performance
standard is achieved. The SIP shall describe the test year selection
scheme, how the test frequency is integrated into the enforcement
process and shall include the legal authority, regulations or contract
provisions to implement and enforce the test frequency. The program
shall be designed to provide convenient service to the motorist by
ensuring short wait times, short driving distances and regular testing
hours.
The Massachusetts program will provide biennial testing in a hybrid
network. Many of the details of this section must still be developed by
the Commonwealth before EPA can determine if the requirements are
satisfied. Although the Commonwealth expects sufficient testing
facilities to participate to provide adequate convenience, there are no
provisions to provide additional testing if participation is lower than
expected. This is a minor deficiency which must be corrected prior to
final full approval of the SIP.
Vehicle Coverage--40 CFR 51.356
The performance standard for enhanced I/M programs assumes coverage
of all 1968 and later model year light duty vehicles and light duty
trucks up to 8,500 pounds GVWR, and includes vehicles operating on all
fuel types. Other levels of coverage may be approved if the necessary
emission reductions are achieved. Vehicles registered or required to be
registered within the I/M program area boundaries and fleets primarily
operated within the I/M program area boundaries and belonging to the
covered model years and vehicle classes comprise the subject vehicles.
Fleets may be officially inspected outside of the normal I/M program
test facilities, if such alternatives are approved by the program
administration, but shall be subject to the same test requirements
using the same quality control standards as non-fleet vehicles and
shall be inspected in the same type of test network as other vehicles
in the state, according to the requirements of 40 CFR 51.353(a).
Vehicles which are operated on federal installations located within
an I/M program area shall be tested, regardless of whether the vehicles
are registered in the state or local I/M area.
The federal I/M regulation requires that the SIP shall include the
legal authority or rule necessary to implement and enforce the vehicle
coverage requirement, a detailed description of the number and types of
vehicles to be covered by the program and a plan for how those vehicles
are to be identified including vehicles that are routinely operated in
the area but may not be registered in the area, and a description of
any special exemptions including the percentage and number of vehicles
to be impacted by the

[[Page 4511]]

exemption. Such exemptions shall be accounted for in the emissions
reduction analysis.
The Commonwealth program proposes to test 1981 and newer light and
heavy duty gasoline vehicles. The Massachusetts submittal does not
provide a detailed description of the number and types of vehicles
included in the program. This is a minor deficiency which must be
corrected prior to final full approval of the Massachusetts I/M SIP.
Test Procedures and Standards--40 CFR 51.357
Written test procedures and pass/fail standards shall be
established and followed for each model year and vehicle type included
in the program. Test procedures and standards are detailed in 40 CFR
51.357 and in the EPA documents entitled ``High-Tech I/M Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994 and
``Acceleration Simulation Mode Test Procedures, Emission Standards,
Quality Control Requirements, and Equipment Specifications'', EPA-AA-
RSPD-IM-96-2, dated July 1996. The federal I/M regulation also requires
vehicles that have been altered from their original certified
configuration (i.e. engine or fuel switching) to be subject to the
requirements of Sec. 51.357(d).
Massachusetts will use a transient test but the test procedures
have not been developed and submitted by the Commonwealth. This portion
of the submittal does not meet the requirements of this section set
forth in the federal I/M rule and is a major deficiency. The
Commonwealth, within 30 days of publication of this document must
commit to correct this major deficiency by a date certain within one
year of interim conditional approval of this submittal.
Test Equipment--40 CFR 51.358
Computerized test systems are required for performing any
measurement on subject vehicles. The federal I/M regulation requires
that the state SIP submittal include written technical specifications
for all test equipment used in the program. The specifications shall
describe the emission analysis process, the necessary test equipment,
the required features, and written acceptance testing criteria and
procedures.
Although the Massachusetts submittal does not contain the written
technical specifications for test equipment to be used in the program
it does describe a system which will utilize the latest computerized
equipment.
This is a minor deficiency which must be corrected prior to final
full approval of the Massachusetts SIP.
Quality Control--40 CFR 51.359
Quality control measures shall insure that emission measurement
equipment is calibrated and maintained properly, and that inspection,
calibration records, and control charts are accurately created,
recorded and maintained.
The Massachusetts submittal does not include provisions which
describe and establish quality control measures for the emission
measurement equipment, and record keeping requirements. This portion of
the submittal does not meet the requirements of this section set forth
in the federal I/M rule and is a major deficiency. The Commonwealth,
within 30 days of publication of this document, must commit to correct
this deficiency by a date certain within one year of final interim
conditional approval of this submittal.
Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360
The federal I/M regulation allows for the issuance of a waiver,
which is a form of compliance with the program requirements that allows
a motorist to comply without meeting the applicable test standards. For
enhanced I/M programs, an expenditure of at least $450 in repairs,
adjusted annually to reflect the change in the Consumer Price Index
(CPI) as compared to the CPI for 1989, is required in order to qualify
for a waiver. Waivers can only be issued after a vehicle has failed a
retest performed after all qualifying repairs have been made. Any
available warranty coverage must be used to obtain repairs before
expenditures can be counted toward the cost limit. Tampering related
repairs shall not be applied toward the cost limit. Repairs must be
appropriate to the cause of the test failure. Repairs for 1980 and
newer model year vehicles must be performed by a recognized repair
technician. The federal regulation allows for compliance via a
diagnostic inspection after failing a retest on emissions and requires
quality control of waiver issuance. The SIP must set a maximum waiver
rate and must describe corrective action that would be taken if the
waiver rate exceeds that committed to in the SIP.
Massachusetts has chosen not to allow cost waivers or compliance
via diagnostic inspection, but will allow a ``grace period'' for
repairs. The length of these grace periods needs to be defined in order
to evaluate the impact of this proposal. This part of the submittal
does not meet the requirements of this section set forth in the federal
I/M rule and this is a major deficiency. In a letter dated November 27,
the Commonwealth explained that it was now developing a procedure which
would not allow waivers, but would allow a ``time extension'' for some
marginal failures for one test cycle if $300 is spent on repairs and
other conditions are met. This procedure must be further developed and
submitted to EPA for approval. The Commonwealth estimates that this
program will allow no more than the equivalent of a 1% waiver rate. The
Commonwealth, within 30 days of publication of this document, must
commit to correct this major deficiency or clarify the procedure by a
date certain within one year of interim conditional of this submittal.
Motorist Compliance Enforcement--40 CFR 51.361
The federal regulation requires that compliance shall be ensured
through the denial of motor vehicle registration in enhanced I/M
programs unless an exception for use of an existing alternative is
approved. An enhanced I/M area may use either sticker-based enforcement
programs or computer-matching programs if either of these programs were
used in the existing program, which was operating prior to passage of
the 1990 Clean Air Act Amendments, and it can be demonstrated that the
alternative has been more effective than registration denial. The SIP
shall provide information concerning the enforcement process, legal
authority to implement and enforce the program, and a commitment to a
compliance rate to be used for modeling purposes and to be maintained
in practice.
The Commonwealth is planning on utilizing a sticker system for
visible evidence of compliance, but registration will be suspended or
not renewed for noncompliance. The initial Massachusetts SIP submittal
uses a 98% compliance rate in the performance standard modeling
demonstration, however, the Commonwealth has not committed to or
described what measures will be used to achieve this higher compliance
rate. In a letter dated November 27, 1996, the Commonwealth revised the
compliance rate of 96% for modeling purposes. This revised part of the
submittal meets the requirements of this section as set forth in the
federal I/M rule and is part of the basis for conditional interim
approval of the Massachusetts I/M SIP.
Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

[[Page 4512]]

The federal I/M regulation requires that the enforcement program
shall be audited regularly and shall follow effective program
management practices, including adjustments to improve operation when
necessary. The SIP shall include quality control and quality assurance
procedures to be used to insure the effective overall performance of
the enforcement system. An information management system shall be
established which will characterize, evaluate and enforce the program.
The details of this program have not been developed and submitted
in order for EPA to evaluate it. This is a minor deficiency which
Massachusetts must correct prior to EPA's final action on the full I/M
SIP.
Quality Assurance--40 CFR 51.363
An ongoing quality assurance program shall be implemented to
discover, correct and prevent fraud, waste, and abuse in the program.
The program shall include covert and overt performance audits of the
inspectors, audits of station and inspector records, equipment audits,
and formal training of all state I/M enforcement officials and
auditors. A description of the quality assurance program which includes
written procedure manuals on the above discussed items must be
submitted as part of the SIP.
Although Massachusetts has made a commitment to meet these
requirements, a detailed quality assurance program which meets the
requirements of the federal I/M rule must be developed and submitted.
This portion of the submittal does not meet the requirements of this
section set forth in the federal I/M rule and is a major deficiency.
The Commonwealth, within 30 days of publication of this document must
commit to correct this major deficiency by a date certain within one
year of interim conditional approval of this submittal.
Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364
Enforcement against licensed stations, contractors and inspectors
shall include swift, sure, effective, and consistent penalties for
violation of program requirements. The federal I/M regulation requires
the establishment of minimum penalties for violations of program rules
and procedures which can be imposed against stations, contractors and
inspectors. The legal authority for establishing and imposing
penalties, civil fines, license suspensions and revocations must be
included in the SIP. State quality assurance officials shall have the
authority to temporarily suspend station and/or inspector licenses
immediately upon finding a violation that directly affects emission
reduction benefits, unless constitutionally prohibited. An official
opinion explaining any state constitutional impediments to immediate
suspension authority must be included in the submittal. The SIP shall
describe the administrative and judicial procedures and
responsibilities relevant to the enforcement process, including which
agencies, courts and jurisdictions are involved, who will prosecute and
adjudicate cases and the resources and sources of those resources which
will support this function.
A detailed description of this part of the program was not
submitted. This a minor deficiency which must be corrected prior to
final full approval of the Massachusetts I/M SIP.
Data Collection--40 CFR 51.365
Accurate data collection is essential to the management, evaluation
and enforcement of an I/M program. The federal I/M regulation requires
data to be gathered on each individual test conducted and on the
results of the quality control checks of test equipment required under
40 CFR 51.359.
The Massachusetts SIP provides a commitment to meet all of the data
collection requirements and has listed all the required data which will
be collected. This part of the submittal meets the requirements of this
section set forth in the federal I/M rule and is part of the basis for
conditional interim approval of the Massachusetts I/M SIP.
Data Analysis and Reporting--40 CFR 51.366
Data analysis and reporting are required to allow for monitoring
and evaluation of the program by the state and EPA. The federal I/M
regulation requires annual reports to be submitted which provide
information and statistics and summarize activities performed for each
of the following programs: testing, quality assurance, quality control
and enforcement. These reports are to be submitted by July and shall
provide statistics for the period of January to December of the
previous year. A biennial report shall be submitted to EPA which
addresses changes in program design, regulations, legal authority,
program procedures and any weaknesses in the program found during the
two year period and how these problems will be or were corrected.
The Massachusetts data analysis and reporting procedures have not
been developed. This is a minor deficiency which must be corrected
prior to final full approval of the Massachusetts I/M SIP.
Inspector Training and Licensing or Certification--40 CFR 51.367
The federal I/M regulation requires all inspectors to be formally
trained and licensed or certified to perform inspections.
The Massachusetts proposed regulation at 310 CMR 60.02(14) requires
training and certification of inspectors. This portion of the submittal
meets the requirements of this portion of the federal I/M rule and is
part of the basis for conditional interim approval of the Massachusetts
I/M SIP.
Public Information and Consumer Protection--40 CFR 51.368
The federal I/M regulation requires the SIP to include public
information and consumer protection programs. The Massachusetts SIP
submittal contains a public awareness plan, however it does not provide
for protection of whistle blowers. The plan also needs to be expanded
to include information on state and federal laws and how motorists can
maintain their vehicles to keep emissions low. This is a minor
deficiency which must be corrected prior to final full approval of the
Massachusetts I/M SIP.
Improving Repair Effectiveness--40 CFR 51.369
Effective repairs are the key to achieving program goals. The
federal regulation requires states to take steps to ensure that the
capability exists in the repair industry to repair vehicles. The SIP
must include a description of the technical assistance program to be
implemented, a description of the procedures and criteria to be used in
meeting the performance monitoring requirements required in the federal
regulation, and a description of the repair technician training
resources available in the community.
This part of the submittal meets the requirements of this section
set forth in the federal I/M rule and is part of the basis for
conditional interim approval of the Massachusetts I/M SIP.
Compliance With Recall Notices--40 CFR 51.370
The federal regulation requires the states to establish methods to
ensure that vehicles that are subject to enhanced I/M and are included
in a emission related recall receive the required repairs prior to
completing the emission test and/or renewing the vehicle registration.
Most of the requirements of this section are met by the
Massachusetts

[[Page 4513]]

submittal except motorists are not notified of required recalls prior
to inspection periods so that they can meet the requirements in the
current rather than subsequent inspection cycle. This is a minor
deficiency which must be corrected prior to final full approval of the
Massachusetts SIP.
On-road Testing--40 CFR 51.371
On-road testing is required in enhanced I/M areas. The use of
either remote sensing devices (RSD) or roadside pullovers including
tailpipe emission testing can be used to meet the federal regulations.
The program must include on-road testing of 0.5% of the subject fleet
or 20,000 vehicles, whichever is less, in the nonattainment area or the
I/M program area. Motorists that have passed an emission test and are
found to be high emitters as a result of an on-road test shall be
required to pass an out-of-cycle test.
The Massachusetts SIP submittal describes an on-road testing
program which meets the requirements of the federal I/M rules and is
part of the basis for conditional interim approval of the Massachusetts
I/M SIP.
State Implementation Plan Submissions/Implementation Deadlines--40 CFR
51.372 through 51.373
The Massachusetts submittal proposes to start two speed idle
testing in 1997 and dynamometer testing in 1999. This is not consistent
with EPA's interpretation of the required start date under the NHSDA.
In a letter dated September 17, 1996, the Commonwealth agreed to move
up the dynamometer start date to be consistent with other NHSDA states.
Since this letter did not specify a precise date, EPA wrote back on
October 7, 1996 to confirm the state's intent that the start date would
be sometime in late 1997 but no later than January, 1998. EPA proposes
that Massachusetts must start the dynamometer testing by November 15,
1997, or this conditional approval will convert to a disapproval after
a findings letter is sent by EPA.

III. Discussion for Rulemaking Action

In order for EPA to conditionally approve the Massachusetts I/M
SIP, the state must commit within 30 days of publication of this
document to correct the following major elements of the SIP that EPA
considers deficient by a date certain within one year of final interim
approval of this submittal. These elements are:
(1) Credit claims: In several areas, Massachusetts has claimed
credit for emission reductions which overstate the emission reductions
which will occur, with no clear basis for those claims. These are
beyond the issue of test-only versus test-and-repair network types.
Revision of these factors as discussed above will necessitate
recalculation of emission reductions from the program. The
Commonwealth, within 30 days of publication of this document must
commit, to revise and submit to EPA, by April 1, 1997, a complete
revised 15% plan utilizing appropriate waiver, compliance rates, test
type and the phase-in emission standards which will be used in November
1997 (i.e. ASM2 emission credits with phase in cutpoints.)
(2) The Commonwealth has now proposed a ``time extension'' program
which restricts noncompliance with the program severely. This program
must be further defined and submitted to EPA as a SIP revision by a
date certain within one year of publication of final interim approval
of this submittal. Other major deficiencies as outlined above must also
be corrected in Secs. 51.351 (Enhanced IM Performance Standard), 51.354
(Adequate Tools and Resources), 51.357 (Test Procedures and Standards),
51.359 (Quality Control), 51.360 (Waivers and Compliance via Diagnostic
Inspection), 51.360 (Motorist Compliance Enforcement), and 51.363
(Quality Assurance). The Commonwealth, within 30 days of publication of
this notice, must commit to correct these deficiencies by a date
certain within one year of conditional interim approval by EPA.
If the Commonwealth does not make such a commitment within 30 days,
EPA proposes in the alternative to disapprove this SIP. If these
conditions are not met within the time specified, EPA today is
proposing that this SIP revision convert to a disapproval.
If the Commonwealth makes the commitment within 30 days, EPA's
conditional approval of the plan will continue for 18 months under the
Highway Act if the Commonwealth has committed to cure all of the
conditions specified in this document. EPA expects that within this
period the Commonwealth will not only correct the deficiencies as
committed to by the Commonwealth, but that the Commonwealth will also
begin program start-up by November 15, 1997. If the Commonwealth does
not correct deficiencies by the date(s) certain and implement the
interim program by November 15, 1997, EPA is proposing in this document
that the interim approval will convert to a disapproval after a finding
letter is sent to the Commonwealth.

IV. Explanation of the Interim Approval

At the end of the 18 month interim period, the approval status for
this program will automatically lapse pursuant to the NHSDA. It is
expected that the Commonwealth will at that time be able to make a
demonstration of the program's effectiveness using an appropriate
evaluation criteria. As EPA expects that these programs will have
started on or before November 15, 1997, the Commonwealth will have at
least 6 months of program data that can be used for the demonstration.
If the Commonwealth fails to provide a demonstration of the program's
effectiveness to EPA within 18 months of the final interim rulemaking,
the interim approval will lapse, and EPA will be forced to disapprove
the Commonwealth's permanent I/M SIP revision if the Commonwealth does
not demonstrate the interim program's effectiveness. If the
Commonwealth's program evaluation demonstrates a lesser amount of
emission reductions actually realized than were claimed in the
Commonwealth's previous submittal, EPA will adjust the Commonwealth's
credits accordingly and use this information to act on the
Commonwealth's permanent I/M program.

V. Further Requirements for Permanent I/M SIP Approval

At the end of the 18 month period, final full approval of the
Commonwealth's plan may be granted based upon the following criteria:
1. The Commonwealth has complied with all the conditions of its
commitment to EPA,
2. EPA's review of the state's program evaluation confirms that the
appropriate amount of program credit was claimed by the Commonwealth
and achieved with the interim program,
3. Final program regulations are submitted to EPA, and
4. The Massachusetts I/M program meets all of the requirements of
EPA's I/M rule, including those minor deficiencies found to be de
minimis for purposes of interim approval.

VI. EPA's Evaluation of the Interim Submittal

EPA's review of this material indicates that the Massachusetts I/M
SIP meets the requirements for conditional interim approval under the
National Highway Systems Designation Act and the Clean Air Act. EPA is
proposing a conditional interim approval of the Massachusetts SIP
revision for motor vehicle inspection and maintenance,

[[Page 4514]]

which was submitted on March 27, 1996. EPA is soliciting public
comments on the issues discussed in this document or on other relevant
matters. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the EPA Regional office listed in the
Addresses section of this document.

Proposed Action

EPA is proposing to conditionally approve this revision to the
Massachusetts SIP for an interim enhanced I/M program. The conditions
for approvability are as follows:
Within 30 days of this document, Massachusetts commits to submit by
April 1, 1997 a complete approvable revised 15% plan which shows
sufficient reductions from an enhanced I/M program utilizing emission
credit estimates agreeable to EPA as discussed earlier in this
document. This includes MOBILE modeling with a worst case analysis
showing that the Commonwealth will meet the needed 15% reductions if
the program only achieves reductions equivalent to ASM2 credit at
``phase-in'' cut points or the Commonwealth must reduce the credit
claimed for the I/M program. Also, within 30 days of this document
Massachusetts commits to submit by a date certain within one year of
final interim approval, revised program evaluation modeling showing
achievement of at least the low enhanced I/M standard by 2002.
In addition, within 30 days Massachusetts commits to submit by a
date certain within one year of final interim approval, revisions to
meet the requirements for Enhanced I/M Performance Standard--40 CFR
51.351, Adequate Tools and Resources--40 CFR 51.354, Test Procedures
and Standards--40 CFR 51.357, Quality control--40 CFR 51.359, Waivers
and Compliance via Diagnostic Inspection--40 CFR 51.360 , Quality
Assurance--40 CFR 51.363 and a revised modeling analysis showing
achievement of the performance standard by 2002.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
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 CAA, 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).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
action.
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 Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
The Administrator's decision to approve or disapprove the SIP
revision will be based on whether it meets the requirements of section
110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA
regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

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

Dated: January 15, 1997.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 97-2194 Filed 1-29-97; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-2194. Public record. Not legal advice.