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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 122-4078a; FRL-6160-6]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania; Enhanced Motor Vehicle Inspection and

Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: This action approves an August 21, 1998 State Implementation

Plan (SIP) revision submitted by the Commonwealth of Pennsylvania to

supplement its enhanced motor vehicle emissions inspection and

maintenance (I/M) program SIP. The August 21, 1998 SIP revision

submittal addresses the seven remaining minor, or de minimus,

deficiencies cited in EPA's January 28, 1997 conditional interim

approval of Pennsylvania's enhanced I/M program. In addition,

Pennsylvania submitted a demonstration of the effectiveness of its

decentralized network required under the National Highway Systems

Designation Act of 1995 (NHSDA). The intended effect of this action is

to remove all remaining de minimus conditions imposed by EPA in its

January 28, 1997 conditional interim approval of Pennsylvania's March

1996 enhanced I/M SIP revision, and to approve the Commonwealth's

decentralized network effectiveness demonstration. EPA is hereby

removing the interim approval status of the Commonwealth's I/M SIP,

granted under the NHSDA. However, as Pennsylvania must still provide

specific information related to one condition of the January 28, 1997

approval of its enhanced I/M program, the

[[Page 49437]]

Commonwealth's enhanced I/M SIP remains conditionally approved under

the Clean Air Act.

DATES: This direct final rule is effective on November 16, 1998,

without further notice, unless EPA receives adverse comment by October

16, 1998. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register informing

the public that the rule will not take effect.

ADDRESSES: Comments should be mailed to Marcia Spink, Associate

Director, Office of Air Programs, Mailcode 3AP20, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street--14th Floor, Philadelphia, Pennsylvania 19103; and at

the Pennsylvania Department of Environmental Protection, Bureau of Air

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

17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or by e-

mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On January 28, 1997, EPA published in the Federal Register a final

rulemaking action (62 FR 4004) granting conditional interim approval to

Pennsylvania's enhanced I/M program SIP revision, submitted March 22,

1996, under the authority of both the NHSDA and the Clean Air Act as

amended in 1990. The NHSDA established key changes to previous EPA I/M

requirements. Under the NHSDA, EPA could not disapprove, or

automatically discount the effectiveness of, a state's I/M program

solely because it utilized a decentralized testing network. Instead, on

the basis of a ``good faith estimate'' by a state, the NHSDA allowed

for presumptive equivalency of such decentralized networks to the

benchmark of centralized programs. Under section 348 of the NHSDA, EPA

was required to grant ``interim'' approval to such decentralized

programs, for an 18-month period, at the end of which each affected

state must submit an evaluation of the actual effectiveness of the

enhanced program.

In Pennsylvania's case, EPA granted interim approval of the

enhanced I/M program SIP, pursuant to Section 348 of the NHSDA, but

also conditioned approval of that SIP upon the satisfaction of five

major deficiencies and fourteen de minimus deficiencies. EPA's January

28, 1997 conditional interim approval stipulated that the five major

conditions must be corrected within one year of final interim approval,

and that the de minimus conditions be addressed within eighteen months

of final interim approval. On January 9, 1998, EPA published (63 FR

1362) a final rule amending federal I/M requirements for ongoing

evaluation methodologies for state I/M programs--one of the major

deficiencies of Pennsylvania's program identified by EPA in its January

1998 interim conditional approval. EPA's I/M requirements rule change

also served to amend the related condition of the Commonwealth's

approval. As a result, the deadline for the Commonwealth to satisfy

this condition was extended from February 28, 1998 to November 30,

1998.

Pursuant to EPA's January 28, 1997 rulemaking action, in order for

the Commonwealth's SIP to be eligible for full approval, all de minimus

conditions placed by EPA upon the Commonwealth's SIP must be remedied

by the end of the 18-month interim approval period. The Commonwealth's

NHSDA program effectiveness demonstration was due to be completed and

submitted to EPA within the same time frame. The interim approval

period for Pennsylvania expires August 28, 1998.

On September 2, 1998, EPA published a direct final rulemaking

action (DFR), which is separate from today's action. The purpose of

that rulemaking action is to approve two Pennsylvania SIP revisions,

which addressed four major and seven de minimus rulemaking conditions

from EPA's January 28, 1997 conditional interim approval. EPA

anticipates that the DFR published on September 2, 1998 will become

effective (barring adverse comment) within 60 days of its publication

date. The subject of today's rulemaking action is the Commonwealth's

August 21, 1998 SIP revision which addresses the remaining seven de

minimus conditions and the network design effectiveness demonstration.

II. Summary of Pennsylvania's August 21, 1998 SIP Revision

Submittal

On August 21, 1998, the Commonwealth of Pennsylvania submitted a

revision to its SIP. In addition, on August 21, 1998 the Commonwealth

submitted its I/M program network effectiveness demonstration. The SIP

revision submittal also consists of contractual materials related to

enhanced I/M oversight and program management services contract. These

include the program oversight contract with the Commonwealth's I/M

program manager, MCI Telecommunications Corporation (MCI) in addition

to portions of the Commonwealth's request for proposal (RFP) and

portions of the contractor and subcontractor proposal responses. The

SIP submittal also includes certain contract exhibits, relevant to the

satisfaction of federal requirements applicable to the remaining de

minimus conditions set forth in 40 CFR 52.2026. Finally, the SIP

submittal contains some Pennsylvania state government procedures and

other miscellaneous forms and documents.

Also on August 21, 1998, the Commonwealth submitted its

demonstration of the effectiveness of its decentralized program network

(pursuant to the requirements of section 348 of the NHSDA) in order to

qualify for the full ``credits'' claimed by Pennsylvania for the

decentralized testing format of its enhanced I/M program. Such a

demonstration is required (from states that chose to submit SIPs in

March of 1996 to take advantage of NHSDA flexibility granted for

decentralized I/M programs) at the end of the 18-month NHSDA interim

approval period. The NHSDA demonstration is to be based upon the

results of data collected during operation of the enhanced I/M program.

The Commonwealth's August 21, 1998 SIP submittal is meant to

address those seven remaining de minimus deficiencies identified by EPA

in its January 28, 1997 interim conditional approval, which the

Commonwealth had not yet addressed in any other I/M-related SIP

revisions previously submitted to EPA.

III. EPA's Review of Pennsylvania's August 21, 1998 SIP Revision

Submittal

EPA views the Commonwealth's August 21, 1998 SIP revision as a

separate, independent SIP amendment from all previous enhanced I/M SIP

revisions--including the Commonwealth's original, March 22, 1996 NHSDA

SIP revision. While Pennsylvania's August 21, 1998 SIP revision is

related to the March 1996 submittal, as well as to other later

Pennsylvania enhanced I/M-related SIP revisions submitted by the

Commonwealth, it serves to supplement the Commonwealth's enhanced I/M

program SIP--not to replace it. Therefore, EPA has placed this revision

in a separate rulemaking docket from all previous Pennsylvania enhanced

I/M SIP revisions, and EPA is today acting only upon the August 21,

1998 SIP

[[Page 49438]]

revision. In doing so, EPA is not reopening its January 27, 1997 final

rulemaking granting conditional interim approval of the Commonwealth's

enhanced I/M SIP.

A. National Highway Systems Designation Act Demonstration

1. Summary of Pennsylvania's Demonstration

Pursuant to section 348 of the NHSDA, in June of 1996 Pennsylvania

submitted a ``good faith estimate'' to support its claims for 100% of

the credit for its decentralized, test-and-repair program, when

compared to a centralized, test-only network. EPA approved the

Commonwealth's ``good faith estimate'', under authority of the NHSDA,

on January 28, 1997 (62 FR 4004). Pennsylvania commenced its enhanced

I/M program in October of 1997, and between October 1997 to April 1998,

over 2,700 stations in the Pittsburgh and Philadelphia areas were

brought into the enhanced I/M program. By the end of April of 1998,

Pennsylvania's operating stations had successfully completed

approximately 1.7 million enhanced emissions tests.

Section 348 of the NHSDA required Pennsylvania to submit a

demonstration, based upon program data collected during the interim

approval period, to support its good faith estimate and to demonstrate

that the credits claimed for the decentralized program were

appropriate. On August 21, 1998, Pennsylvania submitted a report to

EPA, entitled ``National Highway Systems Designation Act Good Faith

Estimate, Description of Program Effectiveness'', that describes the

Commonwealth's efforts to ensure that the program is operating as

effectively as originally proposed.

Pennsylvania's demonstration is partitioned into three sections.

The first section describes the program implementation status. The

second section reiterates the Commonwealth's NHSDA ``good faith

estimate,'' originally submitted to EPA in June of 1996. The final

section describes the steps Pennsylvania has made to implement the

commitments made in the good faith estimate, and provides the program

data that Pennsylvania has gathered during the interim approval period

to support the good faith estimate.

In general, the Commonwealth's demonstration supplies data to

substantiate its emission reduction credit claims, including: an

overview of number the stations conducting tests; information of

individual emissions inspectors; a comparison of bar-coded vs. manual

VIN entry methods as a database quality assurance measure; a summary of

the state's overt and covert audit efforts; a summary of remedial

activities triggered by audits; examples of the automated station

record auditing performed monthly by the state and sorted by various

relevant parameters; and program summary data from the start-up period

of the program.1

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

\1\ Pennsylvania cautions that this data used in support its

program effectiveness was gathered during start-up and phase-in

period of the program. The data is based upon less-stringent phase-

in test standards, and is affected by other aspects of the program

that are being phased in over the first program cycle, such as:

repair technician training requirements, phased-in limits for the

cost of testing waivers, and program enforcement that is directed

heavily towards the use of compliance assistance as a means to

educate inspectors and repair technicians.

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

As described above, Pennsylvania's demonstration contains program

summary data for the period between October 1997 and April 1998. The

data includes a summary of test results (stratified by vehicle model

year) from inspection stations in both program areas. Specifically,

this includes: the number of tailpipe tests performed using

acceleration simulation mode (ASM) test method and the number performed

using the two-speed idle test method, the number of vehicles initially

passing and failing the applicable tailpipe test, the number of

vehicles initially failing the gas cap test, and the number of vehicles

initially failing the visual inspection. For vehicles initially failing

the ASM tailpipe test, the results are further segregated by those

failing for excessive hydrocarbon or carbon monoxide emissions versus

those failing for nitrogen oxides (NOx) emissions. Finally,

the Commonwealth's demonstration contains similar data for the first

retest performed on vehicles that failed the initial test. The

resultant data indicates that, for the period from October of 1997 to

April of 1998, the overall Pennsylvania program failure rate for that

period was approximately 10%. For that period, approximately 31% of all

1970s model year vehicles, 21% of all 1980s vehicles, and 5% of all

1990s vehicles failed the applicable ASM or two-speed idle tailpipe, or

the gas cap check and visual inspection. Of the approximately 160,000

vehicles that initially failed testing during that period,

approximately 36% passed a retest within 30 days.

The demonstration also contains data on the Commonwealth's quality

assurance efforts to maintain the integrity of the decentralized

testing network, for the period from October 1997 to April of 1998.

This information includes the results of over 2,900 overt audits

performed by Pennsylvania's program manager contractor, MCI--1,625 for

the Philadelphia program area and 1,286 for the Pittsburgh program

area. Overt audits may include such checks as: checks of station/

inspector compliance with administrative/record keeping requirements,

oversight of inspector testing, and/or reference gas analyzer

calibration (referred to hereafter as overt audits). Every emissions

inspection station in Pennsylvania has received at least one overt

audit. In addition, five-point gas audits are performed at least semi-

annually upon every emission analyzer at every licensed test station.

The Commonwealth also performs regular, monthly record audits of every

licensed station, which entail a computerized review of a station's

and/or inspector's testing records/results. This information is sorted

to focus on station performance related to certain testing elements,

and then analyzed for trends that would warrant an overt or a covert

audit. These record audits can be done without the station even

knowing, through the Commonwealth's computerized test record database.

The Commonwealth also encourages consumers to request a referee test to

double check tests performed by inspectors.

The Commonwealth also provided information on the results of over

1,000 covert audits conducted over this period--567 in Philadelphia and

482 in Pittsburgh. Covert audits entail an undercover visit to a

station by a program compliance officer, in an unmarked car, to witness

how testing is actually performed at testing stations. The results of

the Commonwealth's overt and covert audits are included in the

demonstration, and constitute a summary of specific violations of state

requirements, as noted by state auditors. Information on the

Commonwealth's use of this audit information is also included in the

demonstration. Violations identified during record review audits or

overt or covert audits are addressed by the Commonwealth either through

compliance assistance or through formal enforcement actions. For the

period from January 1, 1998 to July of 1998, 742 potential violations

were referred for enforcement action. Of those, 406 were remedied

through mandatory, 3-hour training classes to educate inspectors on

conducting proper testing. Through July, Pennsylvania conducted over

220 hearings, with 129 pending adjudication. As a result of hearings,

97 stations were provided compliance assistance by the Commonwealth,

six received written warnings, and 23

[[Page 49439]]

stations were assessed compliance points, fines, and/or suspensions.

The Commonwealth intends to hold over 90 hearings in the next several

months to deal with outstanding violations. As a result of the

Commonwealth's compliance assistance effort in response to I/M program

violations, the Commonwealth intends to extend its use to all

inspectors participating in the enhanced I/M program.

2. EPA's Analysis of Pennsylvania's NHSDA Demonstration

The Commonwealth's good faith estimate from June 10, 1996 indicated

the Commonwealth's commitment to design and operate a program with

safeguards in place to limit improper testing in its test-and-repair

network. Pennsylvania's ``good faith estimate'' listed numerous program

elements which would be developed and implemented to ensure that its

decentralized enhanced I/M program would achieve the predicted results.

These enhancements to Pennsylvania's existing basic I/M program were

designed to ensure the proper testing and repair of vehicles, and to

discourage the circumvention of program requirements by inspectors.

These measures included: a stringent oversight program making extensive

use of overt and covert audits, the use of State Police for more

visible station/inspector enforcement, the ability to collect and to

analyze real-time data from decentralized stations, and improvements to

automate station data input activities (e.g., through the use of bar

code readers). EPA believes that these measures do provide a means to

deter improper testing in the Commonwealth's enhanced program, in

comparison to the Commonwealth's previously existing decentralized I/M

program.

EPA believes that the demonstration proves that the Commonwealth's

qualitative assessment of its program can serve as a means for EPA to

determine whether the decentralized program deserves the full credits

associated with a similar centralized program. EPA therefore believes

that the Commonwealth's data collected during the interim approval

period, and compiled in the state's August 1998 NHSDA demonstration,

indicate that the credits claimed by the Commonwealth for its

decentralized program network are appropriate.

EPA believes that the variety of data supplied encompasses those

implementation issues that most significantly impact program

effectiveness. The summary of test results also will allow EPA to

determine whether the Commonwealth's experience deviates greatly from

that of other, comparable I/M programs. Using its experience with such

programs--and taking into consideration the fact that Pennsylvania's

program is less than a year old and therefore is still in the process

of correcting the sort of start-up problems that all new programs

experience--EPA concludes that approval of the Pennsylvania's I/M

program is appropriate at this time.

B. Review of the SIP for Satisfaction of the Remaining De Minimus

Deficiencies

The conditions that EPA has placed upon its interim approval of

Pennsylvania's SIP are codified at 40 CFR 52.2026. On September 2,

1998, EPA published a DFR approving two Pennsylvania SIP revisions (63

FR 46664)--submitted on November 13, 1997 and February 24, 1998.

Barring adverse public comment, the DFR will be effective sixty days

from its publication date. Once effective, this action will strike four

of the major conditions and seven of the de minimus conditions at 40

CFR 52.2026 (a) and (b). Specifically it will eliminate conditions (1),

(3), (4), and (5), currently codified at 40 CFR 52.2026(a) and de

minimus deficiencies (2), (3), (4), (6), (11), (12), and (13),

currently codified at 40 CFR 52.2026(b).

The deficiencies addressed by the Commonwealth's August 21, 1998

SIP revision [ordered below as they appear at 40 CFR 52.2026(b)],

include the following de minimus conditions:

(1) The final I/M SIP submittal must detail the number of personnel

and equipment dedicated to the quality assurance program, data

collection, data analysis, program administration, enforcement, public

education and assistance, on-road testing and other necessary functions

as per 40 CFR 51.354;

(5) The final I/M SIP submittal must provide quality control

requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts

for it);

(7) The final I/M SIP submittal must include the RFP, or other

legally binding document, which adequately addresses how the private

vendor selected to perform motorist compliance enforcement

responsibilities for the Commonwealth's program will comply with the

requirements as per 40 CFR 51.362;

(8) The final I/M SIP submittal must include the RFP that

adequately addresses how the private vendor will comply with 40 CFR

51.363, a procedures manual which adequately addresses the quality

assurance program and a requirement that annual auditing of the quality

assurance auditors will occur as per 40 CFR 51.363(d)(2);

(9) The final I/M SIP submittal must include provisions to maintain

records of all warnings, civil fines, suspensions, revocations,

violations and penalties against inspectors and stations, per the

requirements of 40 CFR 51.364;

(10) The final I/M SIP submittal must include the RFP, or other

legally binding document, which adequately addresses how the private

vendor selected by the Commonwealth to perform data collection and data

analysis and reporting will comply with all the requirements of 40 CFR

51.365 and 40 CFR 51.366; and

(14) The final I/M SIP submittal must contain sufficient

information to adequately address the on-road test program resource

allocations, methods of analyzing and reporting the results of the on-

road testing and information on staffing requirements for both the

Commonwealth and the private vendor for the on-road testing program.

The Commonwealth's August 21, 1998 submittal contains contractual

materials that address and remedy all of the approval conditions listed

above. EPA's detailed analysis of the August 21, 1998 SIP revision and

its rationale for determining that these conditions have been satisfied

is provided in a technical support document (TSD) prepared by EPA in

support of this action. That document is available, upon request, from

the EPA Regional Office listed in the ADDRESSES section of this action.

III. EPA's Rulemaking Action

EPA has reviewed the Commonwealth's August 21, 1998 SIP revision

and has determined that this SIP revision adequately remedies the seven

de minimus rulemaking conditions listed in the above section of this

action. EPA is approving the Commonwealth's August 21, 1998 SIP

submittal as having satisfied those de minimus conditions set forth

previously in this document. The purpose of this approval action is to

remove those de minimus conditions (codified at 40 CFR 52.2026(b))

imposed by EPA's January 28, 1997 conditional interim approval of the

Commonwealth's enhanced I/M SIP. This action also serves to approve

Pennsylvania's demonstration of the effectiveness of its decentralized

vehicle emissions testing program. EPA believes that the Commonwealth's

data and supporting information to bolster its ``good faith estimate''

measures demonstrate that the emissions reductions credits claimed by

the Commonwealth for its enhanced I/M SIP are appropriate.

[[Page 49440]]

EPA imposed fourteen de minimus conditions in its January 28, 1997

interim conditional approval of the Pennsylvania enhanced I/M SIP

revision, submitted by Pennsylvania to EPA in March of 1996. As

previously stated, EPA published a DFR on September 2, 1998 approving

I/M-related SIP revisions submitted by the Commonwealth on November 13,

1997 and February 24, 1998. That DFR removes seven of those de minimus

conditions, while today's direct final rulemaking action (approving the

Commonwealth's August 21, 1998 SIP) serves to remove the seven

remaining de minimus conditions. As indicated in EPA's January 1997

interim conditional approval, Pennsylvania needed to satisfy all the de

minimus deficiencies by the end of the interim approval period (i.e.,

by August 28, 1998). Today's direct final rulemaking action, coupled

with the direct final rulemaking published on September 2, 1998, serves

to remove all of the de minimus conditions. EPA is also approving, by

today's action, the Commonwealth's program network effectiveness

demonstration, as required under the NHSDA. Because the Commonwealth

has submitted an approvable demonstration and remedied all de minimus

requirements, EPA is acting today to remove the interim approval status

of the Commonwealth's I/M SIP.

However, as Pennsylvania must still provide specific information by

November 30, 1998 to address one of the conditions imposed by EPA's

January 28, 1997 conditional approval under the Clean Air Act (i.e.,

the Commonwealth's choice of an EPA-approved methodology for conducting

an on-going I/M program evaluation), the Commonwealth's enhanced I/M

SIP remains conditionally approved under the Clean Air Act.

As a result of the above actions, EPA is today granting final

conditional approval to the Pennsylvania enhanced I/M program SIP,

under the authority granted under section 110 of the Clean Air Act.

Today's action removes interim approval status from the

Commonwealth's enhanced I/M SIP. With the exception of the condition

requiring the Commonwealth to provide specific information, by November

30, 1998 (with regard to its chosen methodology for performing its on-

going enhanced I/M program evaluation) both today's DFR and EPA's

September 2, 1998 DFR serve to approve SIP revision submittals which

address the conditions imposed in EPA's January 28, 1997 conditional

approval of the Commonwealth's enhanced I/M SIP under the Clean Air

Act.

Final Action

EPA is approving the Commonwealth's August 21, 1998 SIP submittal

as having fully satisfied seven de minimus conditions identified by EPA

in its January 28, 1997 interim conditional approval of the

Pennsylvania enhanced I/M SIP (62 FR 4004). EPA is also approving the

Commonwealth's demonstration, submitted for the purpose of proving that

the credits granted for the Commonwealth's decentralized I/M program

testing network were appropriate, based upon data collected from

operation of the Commonwealth's enhanced I/M program. On the basis of

the data contained in the Commonwealth's demonstration, EPA believes

that Pennsylvania has sufficiently demonstrated that its decentralized

program is capable of achieving emissions reductions similar to those

associated with a similarly designed, centralized program.

On September 2, 1998, EPA published a DFR approving I/M-related SIP

revisions. Once effective, it removes four conditions placed upon the

Commonwealth's enhanced I/M program SIP (as codified at 40 CFR

52.2026), as well as seven de minimus conditions. Today's direct final

rulemaking action to approve the Commonwealth's August 1998 SIP

revision removes the seven remaining de minimus conditions imposed upon

the Commonwealth's enhanced I/M program SIP (as codified at 40 CFR

52.2026).

If EPA receives adverse comments related to the removal of these de

minimus deficiencies, during either the comment period provided in

today's DFR action or that of the September 2, 1998 DFR action, EPA

will publish a timely withdrawal of today's direct final rule and will

inform the public that the rule will not take effect. All public

comments received on both rulemaking actions will then be addressed in

a subsequent rule based upon the proposed rule. Again, EPA will not

institute a second public comment period upon either this, or the

September 2, 1998 rule.

Today's action removes the interim status of the Commonwealth's

enhanced I/M SIP approval. Pennsylvania must provide specific

information to address one remaining Clean Air Act condition, set forth

at 40 CFR 52.2026(a)(2), the Pennsylvania enhanced I/M SIP continues to

be conditionally approved under section 110 of the Clean Air Act.

For the purpose of clarity and to avoid confusion over the

remaining conditions upon interim approval of Pennsylvania's plan, EPA

is removing those de minimus conditions from 40 CFR 52.2026 which have

been satisfied by the Commonwealth's August 21, 1998 SIP revision. EPA

is reserving the sections of 40 CFR 52.2026 that correspond to these

conditions, so as not to renumber any potentially outstanding

conditions of approval listed in that section.

IV. Administrative Requirements

Nothing in EPA's rulemaking 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 SIP shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review. The final rule is not subject

to E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks,'' because it is not an ``economically

significant'' action under E.O. 12866.

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of

[[Page 49441]]

section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, representatives of Indian tribal governments

``to provide meaningful and timely input in the development of

regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

D. Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000. EPA's approval action today maintains conditional approval

status, granted by EPA in January 1997. Approval of a SIP submittal

under section 110 and subchapter I, part D of the CAA does not create

any new requirements but simply approves requirements that a state is

already imposing. Therefore, because the federal SIP approval does not

impose any new requirements, EPA 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)).

E. Unfunded Mandates

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 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. EPA has determined that the approval

action promulgated 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 requirements. Accordingly, no additional costs

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

result from this action.

F. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

G. Petitions for Judicial Review

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

judicial review of this direct final approval action for Pennsylvania's

enhanced I/M SIP revision must be filed in the United States Court of

Appeals for the appropriate circuit by November 16, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule pertaining to the

Pennsylvania enhanced I/M SIP for the purposes of judicial review nor

does it extend the time within which a petition for judicial review may

be filed, and shall not postpone the effectiveness of such rule or

action. This action may not be challenged later in proceedings to

enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: August 28, 1998.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

40 CFR Part 52 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 et seq.

Subpart NN--Pennsylvania

2. Section 52.2026 is amended by revising the introductory

paragraph to read as set forth below.

3. Section 52.2026 is further amended by removing and reserving

paragraphs (b) (1), (5), (7), (8), (9), (10), and (14).

Sec. 52.2026 Conditional approval

The Commonwealth of Pennsylvania's March 27, 1996 submittal of its

enhanced motor vehicle emissions inspection and maintenance (I/M)

program; as amended on June 27, 1996, July 29, 1996, November 1, 1996,

November 13, 1997, February 24, 1998, and August 21, 1998; is

conditionally approved pending satisfaction of paragraph (a)(2) of this

section.

* * * * *

[FR Doc. 98-24730 Filed 9-15-98; 8:45 am]

BILLING CODE 6560-50-P