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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 091-4050a; FRL-5918-2]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Enhanced Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; correcting amendment.

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SUMMARY: This action corrects an interim final rule, which was

published on January 28, 1997, regarding EPA conditional approval of

Pennsylvania's enhanced inspection and maintenance (I/M) program. This

action pertains to the consequences in the event that the Pennsylvania

enhanced I/M program failed to commence per the deadlines set forth in

EPA's interim final rule. EPA is taking this action for the purposes of

consistency with rulemaking actions EPA has since taken on other

states' inspection and maintenance programs. EPA is correcting its

January 28 final rule through a direct final rule, without prior

proposal, because the Agency views this as a noncontroversial SIP

revision and anticipates no adverse comment from the public. A detailed

description of the correction is set forth in the SUPPLEMENTARY

INFORMATION section, below. If EPA receives adverse comments, the

direct final rule will be withdrawn and all public comments received

will be addressed in a subsequent final rule based on a parallel

proposed rule, published elsewhere in this Federal Register. EPA will

not institute a second comment period on this action. Any parties

interested in commenting on this action should do so at this time.

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DATES: Comments must be received in writing by December 8, 1997. If no

adverse comments to this action is received, the action will become

effective January 5, 1998. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to David

L. Arnold, Chief, Ozone/CO and Mobile Sources Section (Mailcode 3AT21),

U.S. Environmental Protection Agency, Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania 19107. Copies of the documents

relevant to this action are available for public inspection during

normal business hours at the Air, Radiation, and Toxics Division, U.S.

Environmental Protection Agency, Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107. Relevant documents are also available

at the Pennsylvania Department of Environmental Resources Bureau of Air

Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,

Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 566-2176.

SUPPLEMENTARY INFORMATION:

Background

On January 28, 1997 (62 FR 4004), EPA published an interim final

rule approving a State Implementation Plan (SIP) revision submitted by

Pennsylvania for an enhanced inspection and maintenance program for all

subject areas in the Commonwealth.

Need for Correction

As published, the direct final rule contains an error, which may

prove to be misleading. Therefore, EPA's action today serves to clarify

that rulemaking, as described in the January 28, 1997 document, the

National Highway Safety Designation Act (NHSDA) directs EPA to grant

interim approval for a period of 18 months to approvable decentralized

I/M submittals. The NHSDA requires such a state to gather data on the

program during that time, and to assess the effectiveness of the

program at the end of the 18-month period. Therefore, EPA believes that

Congress intended for programs to be implemented as soon as possible,

and that these programs must commence testing by November 15, 1997, so

that at least six months worth of operational data can be collected for

the purpose of evaluating the program.

Therefore, EPA set a strict timetable for states to begin testing

under the NHSDA, and conditioned approval of Pennsylvania's I/M plan

upon start up by November 15, 1997. EPA's January 28, 1997 (62 FR 4004)

interim approval of Pennsylvania's plan was conditioned upon five major

deficiencies--including start up of the program. In the Background

section of the January 1997 rulemaking for Pennsylvania, EPA stated

that if the Commonwealth failed to start its program according to

schedule, the conditional interim approval would convert to a

disapproval after a finding letter was sent by EPA to the state.

However, in the Public Comments/Response to Comments section of EPA's

January 1997 rule, EPA conversely stated that all conditions of the

conditional approval automatically convert to disapprovals, by

operation of law, if a state fails to remedy a deficiency upon which

the plan is conditioned (by the date certain established under the

conditional approval). EPA further added that in the event any

condition is not fulfilled in a timely fashion, conversion to a

disapproval is automatic. EPA would subsequently send a letter to the

state notifying the state and the public that the approval had

converted to a disapproval. These two sections seem to be inconsistent,

and their meaning could be easily misinterpreted, if the responses in

the Public Comments/Response to Comments section are applied to the

start condition, in addition to the other noted major deficiencies.

Correction of Publication

Although it is unclear in the January 28, 1997 rulemaking, EPA did

not intend for I/M program implementation (or start up) to be a

condition, the failure of which would automatically convert the

Commonwealth's SIP approval to a disapproval. The I/M program start up

condition is not imposed pursuant to a commitment to correct a

deficient SIP under section 110(k)(4) of the Clean Air Act. Instead,

EPA is imposing the start date condition under its general SIP approval

authority under section 110(k)(3) of the Clean Air Act, which does not

require automatic conversion in the event the condition is not

satisfied in a timely manner [see EPA's Interim Final Rule approving

Virginia's enhanced I/M program (62 FR 26746)] .

Unlike the other specified conditions of Pennsylvania's interim

approval, which are explicit conditions under section 110(k)(4) of the

Clean Air Act, and which will trigger an automatic disapproval should

the Commonwealth fail to meet its commitments, the start date provision

will trigger a disapproval upon EPA's notification to the Commonwealth

via letter that the program did not start per the specified deadlines

imposed by EPA in its final rule--by no later than November 15, 1997

for the five-county Philadelphia area and no later than November 15,

1999 for the remaining 16 counties in Pennsylvania. In the event the

program did not start in a timely manner, such a letter would notify

the Commonwealth that this rulemaking action has been converted to a

disapproval and that the first sanction associated with such a

disapproval has been triggered, per the proposed interim final

determination document published on October 3, 1996 (61 FR 31598). As

explained in that document, the 18-month sanctions clock for

Pennsylvania's I/M program SIP has already expired, with sanctions

suspended while EPA undertook SIP rulemaking action.

Although the January 28, 1997 final rule does not make the

distinction clear between program start up and the other conditions

placed upon the interim SIP approval, EPA intended to distinguish the

failure for timely start up from all other major deficiencies, as

explained above. Accordingly, the publication on January 28, 1997 (62

FR 4004) of 40 CFR 52.2026 is being amended by revising paragraph (a)

and (a)(1) to address the start date condition.

Final Action

EPA is today correcting an error in its January 28, 1997 interim

conditional approval of Pennsylvania's enhanced I/M program SIP

revision. EPA is taking this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse public comments on this action. However, in a separate document

in this Federal Register publication, EPA is proposing to approve the

SIP revision should adverse or critical comments be filed. This action

will be effective January 5, 1998 unless, within 30 days of

publication, adverse or critical comments are received.

If EPA receives such comments, this correction action will be

withdrawn before the effective date by publishing a subsequent document

that will withdraw the final action. All public comments received will

then be addressed in a subsequent final rule based on the parallel

proposal action. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on January 5, 1998.

Administrative Requirements

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

action is not a ``significant regulatory action''

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and, is therefore not subject to review by the Office of Management and

Budget. In addition, this correction action does not impose any

enforceable duty or contain any unfunded mandate as described in the

Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior

consultation with state officials as specified by Executive Order 12875

(58 FR 58093, October 28, 1993), or involve special consideration of

environmental justice related issues as required by Executive Order

12898 (59 FR 7629, February 16, 1994).

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.

However, conditional approvals of SIP submittals under section 110

and subchapter I, part D of the CAA do not create any new requirements

but simply approve requirements that a state is already imposing.

Therefore, because the federal SIP approval does not impose any new

requirements, I certify 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).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. 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 nor does it substitute a new Federal requirement.

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 this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this correction action must be filed in the United

States Court of Appeals for the appropriate circuit by January 5, 1998.

Filing a petition for reconsideration by the Administrator of this

final rule does not affect the finality of this rule for the purposes

of judicial review nor does it extend the time within which a petition

for judicial review may be filed, and shall not postpone the

effectiveness of such rule or action. This action may not be challenged

later in proceedings to enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Dated: October 29, 1997.

William T. Wisnieski,

Acting Regional Administrator, Region III.

Part 52, Chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

2. Section 52.2026 is amended by revising paragraphs (a)

introductory text and (a)(1) to read as follows:

Sec. 52.2026 Conditional Approval.

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(a) If the Commonwealth fails to start its program according to the

schedule it provided (i.e., by no later than November 15, 1997 for the

five-county Philadelphia area and no later than November 15, 1999 for

the remaining sixteen counties), this conditional approval will convert

to a disapproval after EPA sends a letter to the state. If the

Commonwealth fails to satisfy the following conditions per the

deadlines listed within each condition, this conditional approval will

automatically convert to a disapproval as explained under section

110(k) of the Clean Air Act. The conditions for approvability are as

follows:

(1) By no later than September 15, 1997, a notice must be published

in the Pennsylvania Bulletin by the Secretary of the Pennsylvania

Department of Transportation which certifies that the enhanced I/M

program is required in order to comply with Federal law and also

certifies the geographic areas which are subject to the enhanced I/M

program (the geographic coverage must be identical to that listed in

Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the

commencement date of the enhanced I/M program.

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[FR Doc. 97-29388 Filed 11-5-97; 8:45 am]

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