Approval and Promulgation of Air Quality State Implementation Plans (SIP); Texas; Propose Disapproval of Revisions to the State Implementation Plan; Chapter IV, Sections 114.1 and 114.5

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX35-1-6168; FRL-5891-8]

Approval and Promulgation of Air Quality State Implementation

Plans (SIP); Texas; Propose Disapproval of Revisions to the State

Implementation Plan; Chapter IV, Sections 114.1 and 114.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing disapproval of SIP revisions Texas

submitted for Regulation IV, 30 TAC Chapter 114, sections 114.1

``Maintenance and Operation of Air Pollution Control Systems or Devices

Used to Control Emissions from Motor Vehicles'' and 114.5 ``Exclusions

and Exceptions'' on February 24, 1989, September 6, 1990, and July 13,

1993.

The EPA is acting on these three previously submitted revisions

that relate to State wide antitampering provisions and exemptions to

antitampering provisions for motor vehicles or motor vehicle engine

emission control systems. The EPA is proposing disapproval because the

States antitampering rules are not consistent with the Clean Air Act

(the Act), section 203(a)(3) and EPA tampering prohibition as outlined

in EPA's antitampering Enforcement Policy, Mobile Source Enforcement

Memorandum No. 1A.

DATES: Comments must be received on or before October 14, 1997.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Air Planning Section, Environmental Protection

Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-

2733. Copies of the documents about this action are available for

public inspection during normal business hours at the above and

following locations. Persons interested in examining these documents

should make an appointment with the appropriate office at least 24

hours before the visiting day.

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite

700, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, 12100 Park 35

Circle, Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Scoggins, Air Planning

Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-

2733, telephone (214) 665-7354 or via e-mail at

[email protected]. While information may be requested via

e-mail, comments must be submitted in writing to the above Region 6

address.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

On February 24, 1989, September 6, 1990, and July 13, 1993, EPA

received revisions to the Texas SIP for changes to Regulation IV, 30

TAC Chapter 114, sections 114.1 and 114.5, 114.5, and 114.1 and 114.5

respectively. In their regulations, Texas adopted specific measures

restricting emission control equipment removal/modifications

(antitampering) and exempting or providing exclusions for vehicles from

antitampering requirements.

The Federal tampering prohibition for emission control equipment

for motor vehicles and motor vehicle engines is contained in section

203(a)(3) of the Act, 42 U.S.C. 7522(a)(3). Section 203(a)(3)(A) of the

Act prohibits ``any person from removing or rendering inoperative any

emission control device or element of design installed on or in a motor

vehicle or motor vehicle engine prior to its sale and delivery to an

ultimate purchaser'' and prohibits ``any person from knowingly removing

or rendering inoperative any such device or element of design after

such sale and delivery to the ultimate purchaser.'' Mobile Source

Enforcement Memorandum No. 1A provides guidance on what is a violation

of section 203(a)(3).

The State revision, received February 24, 1989, made the following

changes. Section 114.1 prohibits: (1) The removal of or render

inoperative any system or device used to control emissions from a motor

vehicle or motor vehicle engine or any part thereof; (2) specifies the

conditions for the acceptable removal and/or installation of vehicle

engines, catalytic converters, or other emission control components;

(3) prohibits leasing, sale, or offer to sale motor vehicles that have

tampered emission control equipment; (4) and finally, establishes sign

posting requirements for prohibitions.

Section 114.5 exempts from the provisions of 114.1: (1) Dual-fuel

conversions specified by the Department of Public Safety (DPS); (2)

vehicles belonging to persons being transferred to a foreign country

and specifies associated documentation requirements; (3) sales or

offers for sale motor vehicles for wholesale transaction and for sales

or trade-ins from an individual to a vehicle dealer; (4) Federal, State

and local agencies that sell abandoned, confiscated, or seized vehicles

and vehicle auction facilities if specific conditions are satisfied.

The State revision, received September 9, 1990, to section 114.5

exempts all dealer transactions that do not result in the sale of a

tampered vehicle to an individual for operation on a public highway.

The State revision, received on July 13, 1993, made the following

changes. Section 114.1 addresses the replacement or installation of

aftermarket alternative fuel conversions equipment and any other system

or device relating to emissions, safety concerns and antitampering.

Section 114.5 specifies conditions for granting motor vehicle and motor

vehicle engine exclusions from the provisions of section 114.1, deletes

original text in 114.5(c) to improve consistency with section 114.1,

and redesignates original paragraphs.

II. Analysis of State Submittal

The EPA is proposing disapproval of the revisions to Texas SIP for

Texas Regulation IV, 30 TAC Chapter 114, sections 114.1 and 114.5 based

on the following inconsistencies. Section 114.1 (b)(4) allows

replacement or installation of any system or device (other than

catalytic converters, engines and the conversion of the vehicle to

alternative fuels, which are handled under separate subsections) if:

The system or device can be demonstrated to be at least as effective in

reducing emissions as the original equipment. This rule does not

[[Page 48034]]

provide how the above demonstration will be made nor the criteria for

the demonstration. Section 114.5(a)(1) allows registered farm vehicles

used primarily on a farm or ranch to remove or make inoperable the farm

vehicles air pollution control system or device used to control

emissions from the farm vehicle. This exemption is contrary to section

203(a)(3)(A) of the Act and EPA tampering prohibition as outlined in

Memorandum No. 1A. Section 114.5(c) allows exclusion from tampering

laws by petition to state for danger to person or property. The EPA has

never recognized any circumstances that merit removal of a catalytic

converter or other emissions controls because of a fire hazard or other

problem. Again, this is contrary to the Act and EPA tampering

prohibition. In addition, section 114.1(b)(3) references a deleted

section and section 114.1(e) allows dispensing of leaded gasoline if

properly labeled. The Act banned the dispensing of leaded gasoline on

January 1, 1996.

III. Proposed Action

The EPA is proposing disapproval of the State submitted revisions

received on February 21, 1989, September 20, 1990, and July 13, 1993,

for Regulation IV, 30 TAC Chapter 114, sections 114.1 and 114.5. The

EPA has evaluated the submitted rules and has determined that they are

not consistent with the Clean Air Act, and EPA tampering prohibition.

The Regional office, with EPA's Office of Mobile Sources has

initiated efforts to help ensure that this action is consistent with

the Act and Memo 1A, and will not interfere with any applicable

requirement concerning attainment or any other applicable requirement

of the Act. These revisions are not required by the Act. Therefore,

this proposed disapproval action does not impose sanctions for failure

to meet Act requirements.

The EPA is soliciting public comments on the proposed action

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 rule making procedure by submitting written

comments to the EPA Regional office listed in the ADDRESSES section of

this document.

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.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget 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. See 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.

The EPA's disapproval of the State request under section 110 and

subchapter I, part D of the Act does not affect any existing

requirements applicable to small entities. Any preexisting Federal

requirements remain in place after this disapproval. Federal

disapproval of the State submittal does not affect its State-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

C. Unfunded Mandates

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

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany 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 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.

The EPA has determined that the disapproval 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 disapproval

action imposes no new requirements. Accordingly, no additional costs to

State, local, or tribal governments, or to the private sector, result

from this action.

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.

Dated: August 11, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97-24242 Filed 9-11-97; 8:45 am]

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