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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-24730

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 16, 1998
- **Citation:** 63 FR 49436

## Text

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.

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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
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\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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-24730. Public record. Not legal advice.