40938 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from E.O. 12866 review.

B. Regulatory Flexibility Act

SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements but

simply approve requirements that the

District is already imposing. Therefore,

because the federal SIP approval does

not impose any new requirements, the

Administrator certifies that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the Federal-State relationship

under the CAA, preparation of a

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

C. 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.

D. Submission to Congress and the

General Accounting Office

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 the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by September 29,

1997. Filing a petition for

reconsideration by the Administrator of

this final rule to approve the District of

Columbia New Source Review program

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, Incorporation by

reference.

Dated: July 17, 1997.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

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 J—District of Columbia

2. Section 52.470 is amended by

adding paragraph (c)(37) to read as

follows:

§ 52.470 Identification of plan.

* * * * *

(c) * * *

(37) Revisions to the District of

Columbia Municipal Regulations

submitted on May 2, 1997 and May 9,

1997 by the District of Columbia

Department of Consumer and

Regulatory Affairs:

(i) Incorporation by reference.

(A) Letter of April 29, 1997 from the

Department of Consumer and

Regulatory Affairs transmitting new

source review (NSR) program.

(B) Regulations adopted on April 29,

1997; Title 20 of the District of

Columbia Municipal Regulations

(DCMR) Chapter 2, sections 200 (as

amended), 201, 202, 204 (as amended),

206, 299 and the amended definition of

‘‘modification’’ in Chapter 1, section

199.

(ii) Additional material.

(A) Remainder of May 2, 1997 State

submittal.

(B) District Register for May 9, 1997.

[FR Doc. 97–20214 Filed 7–30–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MD037–3015; FRL–5864–8]

Approval and Promulgation of Air

Quality Implementation Plans; State of

Maryland; Enhanced Motor Vehicle

Inspection and Maintenance Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final conditional approval.

SUMMARY: EPA is granting conditional

approval of a State Implementation Plan

(SIP) revision submitted by the State of

Maryland. This revision establishes and

requires the implementation of an

enhanced motor vehicle inspection and

maintenance (I/M) program in the

counties of Anne Arundel, Baltimore,

Calvert, Carroll, Cecil, Charles,

Frederick, Harford, Howard,

Montgomery, Prince George’s, Queen

Anne’s, Washington, and the City of

Baltimore. The intended effect of this

action is to conditionally approve the

Maryland enhanced motor vehicle I/M

program. EPA is conditionally

approving Maryland’s SIP revision

based on the fact that: Maryland’s SIP is

deficient in certain aspects with respect

to the requirements of the Act and

EPA’s I/M program regulations, and

Maryland has made a commitment in a

letter, dated December 23, 1996, to work

with EPA to address and correct all

deficiencies as necessary to ensure full

compliance with I/M requirements by a

date certain within one year from

September 2, 1997. This action is taken

under section 110 of the 1990 Clean Air

Act (CAA, or the Act).

EFFECTIVE DATE: This final rule is

effective on September 2, 1997.

ADDRESSES: 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,
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40939

Philadelphia, Pennsylvania 19107 and

the Maryland Department of the

Environment, 2500 Broening Highway,

Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT:

Catherine L. Magliocchetti at 215–566–

2174 or Jeffrey M. Boylan at 215–566–

2094 at the EPA Region III address

above, or via e-mail at

boylan.jeffrey@epamail.epa.gov. or

magliocchetti.catherine@epamail.epa.gov

SUPPLEMENTARY INFORMATION:

I. Background

On October 31, 1996, (61 FR 56183),

EPA published a notice of proposed

rulemaking (NPR) for the State of

Maryland. The NPR proposed

conditional approval of Maryland’s

enhanced inspection and maintenance

program, submitted on July 11, 1995

and amended on March 27, 1996, by the

Maryland Department of the

Environment (MDE). A description of

Maryland’s submittal and EPA’s

rationale for its proposed action were

presented in the NPR and will not be

restated here.

II. Public Comments/Response to Public

Comments

EPA received comments from two

citizens, and from the Maryland

Department of the Environment. The

individual comments are listed below,

followed by EPA’s response.

Comment #1: One citizen disagreed

with the idea of car emission testing in

general, stating that he thought that

money budgeted to EPA could be better

spent elsewhere.

Response #1: EPA maintains that

enhanced vehicle emission inspection

programs, such as the one designed by

Maryland, are one of the most costeffective air pollution control

technologies available today. Mobile

sources contribute significantly to the

ozone nonattainment problem in the

State of Maryland, and citizens can

contribute to improving air quality by

keeping their vehicles well maintained.

The Vehicle Emissions Inspection

Program, or VEIP, developed by

Maryland will help decrease the amount

of ozone-forming pollutants in the state

at a modest cost to the consumer.

Administration and implementation of

the VEIP is funded at the state level,

from transportation funding and from

the collection of inspection fees by the

state and its contractor. In addition,

vehicle testing is required by the Clean

Air Act for serious and severe ozone

nonattainment areas, such as those in

Maryland.

Comment #2: Another citizen

commented that Maryland’s VEIP

should be delayed until inspection &

maintenance programs in the

neighboring states of Pennsylvania,

Virginia, Delaware, and West Virginia

are put into effect.

Response #2: Under the Clean Air Act

(the Act), Pennsylvania, Virginia and

Delaware were all originally required to

develop and implement inspection &

maintenance programs similar to the

program developed in Maryland as of

1995. West Virginia is not currently

required to implement an inspection &

maintenance program under the

requirements of the Act since the entire

state has met the national ambient air

quality standards for ozone and carbon

monoxide.

Pennsylvania, Virginia, and Delaware

are all moving forward with inspection

& maintenance programs and each of

these states has submitted I/M program

revisions to their respective State

Implementation Plans, as required by

the Act. EPA has issued final

rulemakings granting conditional,

interim approvals to Pennsylvania and

Virginia’s I/M plans (PA published on

January 28, 1997 at 62 FR 4004; and VA

published on May 15, 1997 at 62 FR

26745), and Delaware received a final

conditional approval for its plan on May

19, 1997 at 62 FR 27195. Programs in

Pennsylvania and Virginia are required

to start by November 1997 under the

terms of the relevant conditional

approvals. EPA anticipates full start-up

of both programs in October of 1997.

Delaware’s I/M program enhancements

have been implemented since January of

1995.

The following comments were

submitted by MDE. In those places

where clarification or background on a

comment is necessary in order to

understand the comment, EPA has

summarized what the state is required

to do as a condition of the rulemaking:

Comment #3: In the notice of

proposed rulemaking, EPA cited a

deficiency under 40 CFR 51.350

regarding the interpretation of

Maryland’s enabling legislation to run

the inspection & maintenance program.

As a condition for approval, EPA stated

that Maryland must either provide an

opinion from the State Attorney

General’s Office that offers the State’s

interpretation on the sunset date as

being no earlier than November 15,

2005; or in the absence of such an

opinion, provide EPA with new

legislative authority that allows for such

an extended sunset date for the

program.

MDE commented that it maintains

that legal authority exists for the

program to continue for so long as is

required by federal law, and that the

sunset provision allows for the State to

revisit the program and enact any

needed legislative actions at the time of

program extension. However, MDE has

committed to asking the Attorney

General’s Office for a confirmation of

the matter.

Response #3: Despite MDE’s

comment, EPA still needs confirmation

from the State’s Attorney General on

this subject, as conditioned in the notice

of proposed rulemaking. As specified in

the notice, if the Attorney General, the

state official authorized to interpret state

law, does not hold a similar

interpretation of the statute, new

legislative authority will be required.

Comment #4: MDE commented that

EPA and MDE need to reach agreement

on whether all of the procedures and

assumptions used in Maryland’s

modeling demonstration, for fulfillment

of the requirements under 40 CFR

51.351 of the I/M rule, were appropriate

and consistent with EPA regulations

and guidelines. MDE may require

clarification on some issues since EPA

policy has been changing in response to

evolving technology (e.g., recent

developments in evaporative system

testing). Maryland expects confirmation

that I/M modeling and program

requirements are being equitably

applied to all states.

Response #4: EPA will continue to

work with MDE with regard to the

appropriate assumptions and inputs for

the modeling of the performance

standard demonstration. For

clarification regarding EPA’s policy on

evaporative testing, MDE should refer to

guidance issued on November 5, 1996,

entitled, I/M Evaporative Emissions

Tests, and December 23, 1996 guidance,

entitled, I/M Evaporative Emissions

Tests—An Addendum, which outline

EPA’s current testing and modeling

methodologies.

EPA hereby confirms that I/M

program and modeling requirements are

being equitably applied to all states, and

further verifies that Maryland is not

being held to a higher standard for

purposes of modeling the program

performance standard.

Comment #5: MDE will provide an

explanation of how subject vehicles in

the program area are identified. MDE

also requests clarification and guidance

from EPA on the requirements for

identification of vehicles routinely

operated in, but not necessarily

registered in the program area.

Response #5: EPA anticipates

clarification from MDE as to how

vehicles operating on Federal Facilities

will be identified, and the protocol that
40940 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

will be used by the State in order to

assure that vehicles operating on federal

installations are covered by the

program. In addition, EPA will provide

MDE with additional guidance on the

identification of other vehicles routinely

operated, but not registered in the

program area (i.e. rental vehicles, fleet

vehicles, etc).

Comment #6: MDE commented that

its regulations specifically prohibit the

inspection contractor from performing

emissions-related repairs. Since the

inspection contractor is the only entity

performing initial tests in Maryland, the

State believes this requirement has been

satisfied. Further, Maryland questions

the applicability of this requirement to

a centralized I/M program.

Response #6: Under 40 CFR 51.357 of

the I/M rule, initial tests must be

performed without repair or adjustment

at the inspection facility, prior to the

test. EPA agrees with MDE’s comment,

and believes that since the inspection

contractor is prohibited from performing

emissions-related repairs under the

State’s regulation, that this requirement

of the federal regulation has been

satisfied.

Comment #7: Also under 40 CFR

51.357, EPA has conditioned approval

of the I/M program on MDE’s providing

EPA with all applicable State

regulations addressing the testing of

vehicles with switched engines, and

vehicles with no certified engine

configuration. MDE commented that its

State’s laws and regulations prohibit

tampering and the applicable sections

will be provided to EPA confirming that

this section of the federal I/M rule has

been fulfilled.

Response #7: Based on Maryland’s

response, no changes are necessary to

this part of the condition. EPA

anticipates documentation from the

state to be provided. EPA reiterates that

the State should specifically delineate

the areas of its anti-tampering laws and

regulations that address engine

switching and testing of vehicles with

no certified engine configuration.

Comment #8: Under 40 CFR 51.360,

EPA asked Maryland to fully document

the criteria that will be used in the State

for granting hardship exemptions or

extensions for the program. MDE

commented that Maryland will continue

its current practice of granting short

extensions for persons whose financial

situations do not allow for repairs to be

conducted immediately. Maryland will

provide a description of this practice to

EPA.

Response #8: EPA accepts MDE’s

above explanation as sufficient for

fulfilling this condition, so long as a

‘‘short’’ extension period is clearly

defined and reasonable to EPA. EPA

awaits MDE’s description of its practice,

consistent with this response.

Comment #9: MDE will provide EPA

with a description of Maryland’s

program to handle out-of-state

exemptions, and MDE’s mechanism to

enforce vehicle transfer requirements

when motorists move into the I/M area.

MDE will also provide documentation

on the citing of motorists for

noncompliance with the vehicle

registration requirement. MDE also

reiterated its need for further guidance

from EPA on how to identify vehicles

operating in, but not registered in an I/

M area.

Response #9: EPA anticipates the

documentation referred to by MDE for

out-of-state exemptions, and for

noncompliance citations. Please see

Comment 5 for EPA’s response on

MDE’s guidance request.

Comment #10: MDE will provide EPA

with clarification on the State’s practice

of vehicle impoundment when a

motorist is cited for driving with a

suspended registration.

Response #10: EPA anticipates this

documentation.

Comment #11: MDE commented that

Maryland will continue to use its

system of month/year registration

stickers as a visible means of

compliance with registration in the

State. MDE will alert EPA if any changes

to this procedure occur in the future.

Response #11: EPA accepts MDE’s

discussion on this procedure, and no

further action is required of MDE with

respect to this aspect of the condition.

Comment #12: MDE requests

additional information and guidance

from EPA as to exactly what exemption

triggering elements need examination.

Response #12: EPA needs

confirmation from MDE that any

exemptions that would allow vehicles to

by-pass an inspection test, such as the

diesel exemption and the electric car

exemption, are either checked by

confirmation of the VIN, or by physical

examination of the vehicle. If VIN

records cannot confirm exemption

status of the vehicle, MDE should

confirm the exemption by physically

examining the vehicle before the

exemption is granted.

Comment #13: MDE questions the

applicability of some or all of the

requirements under 40 CFR 51.362 of

the federal I/M rule to a registrationbased enforcement program. EPA has

asked Maryland to demonstrate that an

acceptable enforcement program exists,

and that this program should include

the procedures used for auditing the

program and a penalty schedule for

missing documentation from the

program’s inspection stations.

Response #13: EPA views the

requirements under this section as

appropriate and reasonable measures

that states are required to implement in

both centralized and decentralized I/M

programs. The intent of this section of

the I/M rule is to control and eliminate

fraudulent acts by those most closely

responsible for implementation of the I/

M program. In Maryland’s specific

situation, these requirements are meant

to provide another means of verifying

proper conduct by the State’s contractor,

and its employees, who are responsible

for dealing with customers in the

inspection lanes. EPA expects that

Maryland will fulfill this condition, as

described in the NPR.

Comment #14: MDE commented that

it has instituted an auditing program

that is likely the costliest and strictest

in the nation. MDE will provide a

description to EPA.

Response #14: EPA anticipates MDE’s

description of its auditing program.

Comment #15: MDE will review its

enforcement authority under its contract

with the inspection contractor and

provide EPA with information regarding

the penalty structure set up to make

sure the contractor is in compliance

with the State’s regulations.

Response #15: EPA anticipates this

documentation from the State.

Comment #16: Maryland will ensure

that the inspector certification program

includes recertification requirements.

Maryland proposes to accomplish this

administratively, rather than by

adopting regulations.

Response #16: EPA accepts

Maryland’s proposal for fulfilling this

requirement; however, MDE must

provide EPA with the administrative

procedures manual, or description of

this practice as part of the SIP support

material, in order to comply with this

requirement for approval purposes.

Recertification need not be done

through regulation, but must be an

explicit, enforceable SIP requirement.

Comment #17: In response to EPA’s

condition under 40 CFR § 51.368,

Maryland will review the State

provision for protection of whistle

blowers and provide the information to

EPA. With regard to public complaints,

Maryland is very responsive to all

complaints received and provides

prompt investigation and corrective

action as required. The State will

document this aspect of the program in

the form of a complaint response plan.

Response #17: EPA anticipates MDE’s

response to this condition.

Comment #18: MDE commented that

a copy of the final regulation revision
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40941

and documentation of the public

hearing process will be submitted to

EPA.

Response #18: EPA anticipates receipt

of this documentation.

Comment #19: MDE commented that

confounding factors in the State could

potentially affect the current program

start-up schedule, previously slated for

June 1, 1997.

Response #19: EPA recognizes that

potential problems with the State’s

program and its contractor may affect

timely implementation of the program.

As is stated in the NPR, Maryland must

start mandatory testing of all subject

vehicles as soon as possible or by

November 15, 1997 at the latest.

Comment #20: Maryland does not

understand the rationale for requiring a

county-by-county analysis of the

performance standard. MDE states that

the federal I/M rule requires that ‘‘Areas

shall meet the performance standard for

the pollutants which cause them to be

subject to enhanced I/M requirements.’’

Since its inclusion in the Ozone

Transport Region causes Maryland to be

subject to enhanced I/M requirements,

Maryland believes that the EPA rule

should be interpreted to treat the I/M

counties as one area in calculating

emissions factors relative to the

performance standard.

Response #20: EPA agrees with MDE’s

interpretation of this requirement, and

will allow MDE to submit an

amalgamated performance standard

analysis.

Comment #21: In the Technical

Support Document, EPA explained that

MDE must use the default compliance

rate of 96% for modeling purposes, or

provide EPA with documentation

supporting the 100% rate used in its

current analysis. MDE responded that it

believes documentation supporting a

compliance rate greater than 96% can be

provided to EPA.

Response #21: EPA welcomes such

supporting documentation from the

State, and advises MDE to use whatever

the appropriate compliance rate is, as

supported by State-generated evidence.

Comment #22: Maryland commented

that it believes that it followed EPA

guidance in calculating RSD reductions.

Maryland does not know of any

requirement to ‘‘subtract out’’ the

minimum RSD component in

calculating RSD credits for an I/M

program.

Response #22: MDE should refer to

EPA’s guidance on RSD credit issuance,

User Guide and Description for Interim

Remote Sensing Program Credit Utility.

As is stated in this guidance, programs

can only receive extra credit for a

remote sensing component if the State’s

program goes above and beyond what is

already required in the federal I/M rule.

EPA is not requiring MDE to ‘‘subtract

out’’ the minimum RSD component.

Rather, EPA is stating that additional

credit for a remote sensing program will

only be granted if the State follows the

EPA guidance and institutes testing

above and beyond what is already

required in the federal I/M rule. A state

such as Maryland, that is only

complying with the minimum on-road

testing requirements, as explained at 40

CFR 51.371, is not eligible for more

credit under the performance standard.

Should MDE chose to expand its RSD

component, additional credit could be

claimed, as explained in the abovenamed guidance document.

Comment #23: MDE commented that

it commits to adopting and using EPA

non-invasive pressure testing

procedures when they become available,

and MDE will therefore take full credit

for pressure testing in the performance

standard. MDE will revise the SIP

revision language to reflect this

commitment.

Response #23: In June of 1996, EPA

issued draft technical guidance which

included draft procedures and

specifications for a fuel-fill pipe

pressure test. EPA will soon issue final,

revised technical guidance on the fuelfill pipe pressure procedures, and

expects that Maryland will adopt this

test under the above referenced

commitment, and use this ‘‘noninvasive’’ procedure to test the integrity

of the vehicle’s fuel system. MDE

should refer to the High-Tech I/M Test

Procedures, Emission Standards,

Quality Control Requirements, and

Equipment Specifications: IM240 and

Functional Evaporative System Tests,

(Revised Technical Guidance, DRAFT),

dated June 1996, the November 5, 1996

memo from Margo Oge, I/M Evaporative

Emissions Tests, and the December 23,

1996 memo from Leila Cook, I/M

Evaporative Emissions Tests—An

Addendum. EPA also cautions the state

that the full pressure test must be in

place for at least one full test cycle

before the evaluation year, in order for

MDE to take credit for 100% pressure

credit in modeling the performance

standard.

Comment #24: MDE would like

clarification from EPA as to whether the

requirements of 40 CFR 51.355—Test

Frequency & Convenience—have been

met. It is noted that EPA did not cite

any deficiencies in the NPR for this

section, however, the TSD did include

a discussion on Maryland’s enforcement

system safeguards, and the need for

further action by the state with respect

to the penalty for noncompliance with

the program.

Further, MDE commented that it is

unclear as to whether EPA expects MDE

to correct another deficiency cited in the

TSD under this section, but not in the

NPR. In the TSD, EPA stated that it was

unclear from Maryland’s regulations

whether or not the inspection contractor

is required to give out-of-cycle

inspections to those other than used

vehicle dealers, or new residents of the

State. This was cited as a deficiency in

the TSD, but not the NPR.

Response #24: As is mentioned in the

TSD discussion on this section, this

problem is also addressed under the

Motorist Compliance Enforcement

Section—40 CFR 51.361. In the NPR,

EPA chose not to duplicate conditions

relating to the same failure, even though

the TSD may have discussed the same

problem under multiple sections. EPA

does have a condition relating to the

cited failure on enforcement safeguards

and penalties (as discussed in the TSD

and reiterated by MDE in its comment

letter), however, MDE should address

this deficiency under the Motorist

Compliance Enforcement Section.

With respect to out-of-cycle testing,

EPA did not place a condition on the

State to make a correction for this TSDcited deficiency. Furthermore, EPA here

clarifies that the TSD erroneously stated

that provisions need to be made to test

these types of vehicles. In fact, EPA’s

regulation requires only that stations be

required to adhere to regular testing

hours and to test any subject vehicle

presented for a test during its test

period. EPA believes this requirement

has been met by the State’s SIP revision.

Therefore, for the purposes of this

rulemaking, MDE does not have any

conditions placed on the State under 40

CFR 51.355, and no remedy is required

by the State under this section.

Comment #25: MDE has requested

clarification of the requirements under

40 CFR 51.356 for SIP approval.

Specifically, clarification is requested

regarding the I/M rule requirement that

the program provide for allowing

inspections of vehicles registered in

other program areas, and for issuance of

certificates of compliance or waiver.

Response #25: As stated in the TSD,

EPA could not find any provisions in

the SIP that explicitly allow for

inspections of vehicles outside of the

program area, and for the issuance of

certificates of compliance or waiver.

However, since EPA understands that

Maryland is investigating the idea of

reciprocity with surrounding states for

purposes of compliance with the

program requirements, EPA assumes

that Maryland intends on extending the
40942 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

option of out of state inspections to

those requesting it. For the purposes of

rulemaking, EPA has not placed any

conditions on the State therefore, with

respect to this component of the I/M

program at this time. If however EPA

discovers problems with the reciprocity

issue in the future, EPA will commence

a SIP call to remedy this problem.

Comment #26: Also under 40 CFR

51.356, MDE would like clarification as

to what is required in order to meet the

federal fleet installations testing

requirement. MDE will provide an

update on the discussions with US GSA

and US DoD, however, MDE would like

to know what further is required for SIP

approval.

Response #26: The TSD states that

Maryland’s SIP revision does not speak

to the requirement that specifically the

Federal installation managers show

proof of inspection for all Federal

employee-owned vehicles operated on

the installation. However, the Maryland

SIP revision does state that ‘‘the federal

agency has the responsibility of

ensuring that its employees comply,

with MVA’s guidance.’’ EPA believes

that this statement satisfies this intent of

this section of the rule, and no further

action is required by MDE in order for

SIP approval. EPA would however,

welcome any further information that

the Department can provide with

respect to federal fleet testing issues,

specifically relating to discussions with

US GSA and US DoD. EPA here notes

that the District of Columbia is also

engaging US GSA and US DoD in

discussions on fleet testing in the

Washington Metropolitan area, and that

it may be instructive for Maryland, the

District of Columbia and the

Commonwealth of Virginia to engage in

these discussions together at this time.

Comment #27: MDE has also asked for

clarification under 40 CFR 51.356, as to

what is required for SIP approval in

relation to special exemptions. MDE

noted that it will quantify the special

exemptions extended to motorists under

the VEIP program, however, MDE would

like clarification as to what is required

for SIP approval.

Response #27: EPA anticipates MDE’s

clarifications of the special exemptions

categories, and believes that this

clarification can be made under the

enhanced performance standard section,

40 CFR 51.351. There are no further SIP

requirements for special exemptions,

provided that the program meets the

performance standard, taking

exemptions into account.

Comment #28: MDE commented that

under 40 CFR 51.358, it has satisfied the

dual exhaust sampling requirements. In

the TSD, EPA cited a deficiency for this

section, stating that the SIP does not

contain provisions for sampling dual

exhaust vehicles. MDE cited Appendix

G of SIP revision 95–06, page RFP38.

Response #28: EPA has reviewed the

cite provided by MDE and concurs that

the simultaneous testing requirement

has indeed been met under the SIP. EPA

notes that the TSD will be amended to

correct this oversight, however no

conditions are affected since none were

cited in the NPR for this element.

Comment #29: MDE has asked for

clarification under 40 CFR 51.358 as to

whether or not the SIP is deficient with

respect to the requirement to update test

equipment to accommodate new

technology vehicles and changes to the

program. Under this section of the TSD,

EPA commented that the SIP does not

appear to address this element. However

the NPR cites this requirement as being

met through the annual reporting

requirement.

Response #29: EPA believes that the

above reference requirement has been

met by Maryland through its annual

reporting requirement, as found in the

SIP revision under Section II.P.2.. EPA

will amend the TSD to reflect this,

however, no changes will be made to

the NPR conditions, since none were

imposed under this section.

Comment #30: MDE commented that

the NPR discussion under 40 CFR

51.358 notes that all requirements of

this section are approvable, however,

the TSD notes that Quality Assurance

requirements and procedures for the

evaporative system functional test

equipment are not included in the SIP

revision. MDE further commented that it

will provide EPA with the appropriate

requirements and procedures when EPA

approved specifications for the pressure

test become available.

Response #30: EPA expects that the

requirements under this section will be

met when the state is able to provide

revised pressure testing procedures for

the SIP. MDE can fulfill the Quality

Assurance requirements for the pressure

test specifications when the pressure

test specification is approved by EPA,

adopted by Maryland and submitted to

EPA as a revision to the SIP.

Comment #31: MDE would like

clarification as to whether or not a

deficiency exists with respect to

counterfeit resistancy of vehicle

inspection reports. No deficiency was

cited in the NPR, however, the TSD

reported that Maryland does not have a

specific requirement aimed at making

documents counterfeit resistant, and

that the program certificates do not

carry an official seal. MDE further

commented that this requirement

should not be applicable to a state with

registration denial as the enforcement

mechanism.

Response #31: As is cited in the NPR,

EPA believes that Maryland has an

adequate measure to ensure counterfeit

resistance, i.e., unique identification

numbers given on each Vehicle

Inspection Report (VIR), coupled with

accountability of the lane inspectors for

each numbered VIR. EPA notes that the

official seal requirement has not been

met by the state, however, EPA believes

the unique serial number method is

adequate for maintaining counterfeit

resistantancy. EPA also concurs with

MDE’s assessment regarding

applicability of this requirement (i.e.,

offical seal) to programs using

registration denial. Nothing further is

required by the state in order to meet

this section of the rule.

Comment #32: MDE commented that

the TSD cites a deficiency regarding

ensuring that compliance documents

cannot be stolen or removed without

being damaged. The NPR does not cite

such deficiency. MDE would like

clarification as to what is required of

Maryland to comply with this section.

Further MDE questioned the

applicability of this section to a program

using registration denial as the

enforcement mechanism.

Response #32: EPA concurs with

MDE’s assessment regarding

applicability of this requirement to

programs using registration denial.

Nothing further needs to be done by the

state to meet the requirements of this

section.

Comment #33: MDE commented that

under the section relating to Waivers

and Compliance via Diagnostic

Inspections (40 CFR 51.360), all of the

vehicles that are the subject of

extensions for the program are actually

inspected in the biennial test cycle and

neither the compliance rate, nor

emissions reductions are affected by this

practice. Maryland requests clarification

regarding what deficiency, if any exists

for this section.

Response #33: EPA agrees with MDE’s

rationale regarding compliance rate

calculations, and emissions reductions.

EPA further accepts MDE’s clarification

contained in its comment letter, that

hardship extensions do not actually

constitute compliance waivers from the

program, and therefore do not excuse

the motorist from meeting the

requirements of the program, but merely

extend the amount of time afforded to

the motorist for compliance with the

program. EPA accepts this explanation

as sufficient for purposes of satisfying

this condition under this section of the

rule. No further documentation needs to

be provided by MDE for this condition.
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40943

Comment #34: MDE commented that

the TSD cites the quality control section

of waiver issuance as being

unapprovable. MDE requests

clarification from EPA regarding this

TSD cited deficiency.

Response #34: EPA has reviewed the

TSD and believes this citation of a

deficiency is a typographical error. EPA

will amend the TSD to reflect an

approvable citation for this requirement.

EPA notes that no change is necessary

for the NPR, since no condition was

cited for this section.

Comment #35: MDE commented that

it will address the evaporative system

total purge flow check when the

evaporative system tests are

implemented. MDE requests that EPA

clarify what is required under this

section for approval.

Response #35: EPA noted in the TSD

that the purge system pass/fail results

did not include the evaporative test total

purge flow achieved during the test.

However, EPA did not cite this as a

deficiency in the NPR since MDE has

committed to changing its purge

specifications when EPA makes noninvasive purge procedures available.

EPA will reassess the requirements of

this section when the non-invasive

procedures become available. This

requirement may or may not be a part

of the revised non-invasive testing

specifications, and so EPA did not cite

a lack of this data as a deficiency at this

time. EPA will clarify what exactly is

required when non-invasive

specifications become available, and

MDE is instructed to consult EPA

guidance on pressure testing

specifications for SIP revision purposes.

Comment #36: MDE notes that the

NPR cites all requirements of 40 CFR

51.370 as having been met. However,

the TSD cites a deficiency with regard

to recall campaign number for vehicles

with unresolved recalls. MDE wants

clarification as to whether this is a SIP

deficiency, and what is required of

Maryland under this section. MDE

further requests guidance from EPA on

complying with the recall provisions of

the I/M rule.

Response #36: MDE should ensure

that the data system includes the recall

campaign number for vehicles with

unresolved recalls, however, under the

NPR, no further documentation needs to

be submitted to EPA to demonstrate that

this requirement has been met at this

time, and no condition has been placed

on the State for this deficiency since

guidance does not currently exist on

how to accomplish this task at this time.

EPA will assist MDE in developing

methods for ensuring that this data be

included in Maryland’s system in the

future.

III. Conditional Approval

Under the terms of EPA’s October 31,

1996 notice of proposed conditional

approval rulemaking (61 FR 56183),

Maryland was required to make

commitments to remedy deficiencies

with the I/M program SIP (as specified

in the above notice) within twelve

months of the effective date of today’s

final conditional approval notice. On

December 23, 1996, Jane T. Nishida,

Secretary of the MDE, submitted a letter

to David L. Arnold, Chief, Ozone/CO

and Mobile Source Section, EPA Region

III, committing to address and correct,

by a date certain, all of the deficiencies

listed in EPA’s October 31, 1996 NPR.

Because Maryland has submitted the

commitment letter called for in EPA’s

October 31, 1996 NPR, EPA is today

taking final conditional approval action

upon the Maryland I/M SIP, under

section 110 of the CAA.

IV. Final Rulemaking Action

EPA is conditionally approving

Maryland’s enhanced I/M program as a

revision to the Maryland SIP, based

upon certain conditions. Should the

State fail to fulfill the conditions by the

deadline of no more than one year from

September 29, 1997, this conditional

approval will convert to a disapproval

pursuant to CAA section 110(k). In that

event, EPA would issue a letter to notify

the State that the conditions had not

been met, and that the approval had

converted to a disapproval.

V. Administrative Requirements

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.

A. Executive Order 12866

This action has been delegated to the

Regional Administrator for decisionmaking and signature. The Office of

Management and Budget (OMB) has

exempted this regulatory action from

E.O. 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. 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.

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 the 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).

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 stateenforceability. 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.

C. 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.
40944 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

EPA has determined that the

conditional 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.

D. Submission to Congress and the

General Accounting Office

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 the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by September 29,

1997.

Filing a petition for reconsideration

by the Administrator of this final rule to

conditionally approve the Maryland

enhanced I/M SIP 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) of the Administrative

Procedures Act).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Nitrogen dioxide, Ozone,

Reporting and record keeping

requirements.

Dated: July 18, 1997.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

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 V—Maryland

2. Section 52.1072 is added to read as

follows:

§ 52.1072 Conditional approval.

(a) The State of Maryland’s July 11,

1995 submittal for an enhanced motor

vehicle inspection and maintenance (I/

M) program, and the March 27, 1996

amendment to the original SIP revision

is conditionally approved based on

certain contingencies. The following

conditions listed in paragraphs (a)(1)

through (a)(15) of this section must be

addressed in a revised SIP submission.

Along with the conditions listed in

paragraphs (a)(1) through (a)(15) of this

section is a separate detailed I/M

checklist explaining what is required to

fully remedy the deficiencies found in

the proposed notice of conditional

approval. This checklist is found in the

Technical Support Document (TSD),

located in the docket of this rulemaking,

that was prepared in support of the

proposed conditional I/M rulemaking

action for Maryland. By no later than

one year from September 29, 1997,

Maryland must submit a revised SIP

that meets the following conditions for

approvability:

(1) Fully adopt and submit to EPA as

a SIP revision, final regulations and

documentation of the public hearing

process addressing Maryland’s March

27, 1997 amendment to the SIP

pertaining to proposed regulatory

changes to the VEIP, as a result of the

flexibility afforded to Maryland from

federal and state legislative changes.

(2) Provide confirmation from the

State Attorney General’s Office clearly

stating that Maryland’s interpretation of

the sunset date of the program is no

earlier than November 15, 2005, or in

the absence of such an opinion, submit

to EPA new legislative authority

allowing for such an extended sunset

date of the program.

(3) Submit to EPA a modeling

demonstration of the program using the

appropriate assumptions and

methodology (see TSD and the Response

to Public Comments section of this rule

for detailed discussions) demonstrating

compliance with the I/M performance

standard for the years 2002 and 2005

(excluding the year 1999, as

recommended by EPA).

(4) Obtain and/or demonstrate to EPA

that adequate funding and tools exist for

the years 1997 and 1998, including a

detailed explanation of the number of

personnel dedicated to quality

assurance, data analysis, program

administration, and enforcement. In

addition, Maryland needs to provide

budget allotments for equipment

resources. EPA notes that an update of

the budget information is adequate to

satisfy this condition.

(5) Provide an explanation to EPA of

how all subject vehicles in the program

will be identified, which includes an

estimate of the number of unregistered

vehicles operated in the program area.

Subsequent to EPA issuing guidance,

Maryland needs to document how

vehicles that are routinely operated in

the program but not registered in the

program area are identified.

(6) Provide to EPA applicable sections

of state laws and regulations specifically

addressing engine switching and testing

of vehicles with no certified engine

configuration. Maryland needs to

commit to adopting non-invasive purge

test procedures when EPA

specifications become available. In

addition, EPA expects Maryland to

submit written procedures for the gascap check and to adopt the non-invasive

fuel-fill pipe pressure specifications and

procedures when EPA issues the final

technical guidance.

(7) Submit to EPA written

specifications for the gas cap check

procedures referenced in Maryland’s

regulations.

(8) Provide to EPA a description of

how Maryland’s current practice of

issuing short term extensions because of

economic hardship is granted, which

reasonably and clearly defines the time

frame of the extension period.

(9) Submit to EPA documentation of

how Maryland will handle out-of-state

exemptions, employ mechanisms to

enforce vehicle transfer requirements

when owners move into the program

area, and cite motorists for

noncompliance with the registration

requirement. Maryland will need to

clarify its practice on vehicle

impoundment when a motorist is cited

for driving with a suspended

registration. In addition, EPA needs

verification on vehicle exemption

triggering elements which allow the

subject vehicle to by-pass an inspection

test. Confirmation by VIN check or

physical examination of the subject

vehicle needs to be included in the SIP

revision, as a means of ensuring

validation of the exemption triggering

elements.

(10) Demonstrate to EPA that

enforcement program oversight is

quality controlled and quality assured.

Maryland needs to provide a procedures

document that details the specifics of

the implementation of the enforcement

program oversight including

information management activities,

activities of enforcement involved in
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40945

monitoring the program, and auditing

the enforcement. Quality control and

assurance needs to address penalty

structures, periodic auditing and

analysis, program effectiveness, and in

use fleet compliance via parking lot

surveys and road side pullovers.

(11) Provide a description to EPA of

Maryland’s auditing program that will

include a minimum number of covert

vehicles that are used for auditing

purposes, covert and overt performance

audits of inspectors, audits of stations

and inspectors records, equipment

audits, and formal training of all state I/

M enforcement officials and auditors.

(12) Submit to EPA documentation

regarding the set up of Maryland’s

penalty structure used to ensure the

contractor is in compliance with State

regulations. The penalty schedule must

be applied to the contractor, stations,

and inspectors. Information should

include administrative & judicial

responsibilities & procedures, and a

description of the funding allocations.

(13) Submit to EPA an administrative

procedures manual or description of the

practice of inspector recertification

which must occur at least every two

years.

(14) Submit to EPA State regulations

documenting provisions for the

protection of whistle blowers. In

addition, Maryland needs to provide

documentation of how it investigates

and responds to complaints made by the

public.

(15) Maryland must start mandatory

testing of all subject vehicles as soon as

possible, or by November 15, 1997 at the

latest.

(b) [Reserved]

[FR Doc. 97–20219 Filed 7–30–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 64

[Docket No. FEMA–7669]

List of Communities Eligible for the

Sale of Flood Insurance

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Final rule.

SUMMARY: This rule identifies

communities participating in the

National Flood Insurance Program

(NFIP). These communities have

applied to the program and have agreed

to enact certain floodplain management

measures. The communities’

participation in the program authorizes

the sale of flood insurance to owners of

property located in the communities

listed.

EFFECTIVE DATES: The dates listed in the

third column of the table.

ADDRESSES: Flood insurance policies for

property located in the communities

listed can be obtained from any licensed

property insurance agent or broker

serving the eligible community, or from

the NFIP at: Post Office Box 6464,

Rockville, MD 20849, (800) 638–6620.

FOR FURTHER INFORMATION CONTACT:

Robert F. Shea, Jr., Division Director,

Program Implementation Division,

Mitigation Directorate, 500 C Street SW.,

room 417, Washington, DC 20472, (202)

646–3619.

SUPPLEMENTARY INFORMATION: The NFIP

enables property owners to purchase

flood insurance which is generally not

otherwise available. In return,

communities agree to adopt and

administer local floodplain management

measures aimed at protecting lives and

new construction from future flooding.

Since the communities on the attached

list have recently entered the NFIP,

subsidized flood insurance is now

available for property in the community.

In addition, the Associate Director of

the Federal Emergency Management

Agency has identified the special flood

hazard areas in some of these

communities by publishing a Flood

Hazard Boundary Map (FHBM) or Flood

Insurance Rate Map (FIRM). The date of

the flood map, if one has been

published, is indicated in the fourth

column of the table. In the communities

listed where a flood map has been

published, section 102 of the Flood

Disaster Protection Act of 1973, as

amended, 42 U.S.C. 4012(a), requires

the purchase of flood insurance as a

condition of Federal or federally related

financial assistance for acquisition or

construction of buildings in the special

flood hazard areas shown on the map.

The Associate Director finds that the

delayed effective dates would be

contrary to the public interest. The

Associate Director also finds that notice

and public procedure under 5 U.S.C.

553(b) are impracticable and

unnecessary.

National Environmental Policy Act

This rule is categorically excluded

from the requirements of 44 CFR part

10, Environmental Considerations. No

environmental impact assessment has

been prepared.

Regulatory Flexibility Act

The Associate Director certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities in accordance

with the Regulatory Flexibility Act, 5

U.S.C. 601 et seq., because the rule

creates no additional burden, but lists

those communities eligible for the sale

of flood insurance.

Regulatory Classification

This final rule is not a significant

regulatory action under the criteria of

section 3(f) of Executive Order 12866 of

September 30, 1993, Regulatory

Planning and Review, 58 FR 51735.

Paperwork Reduction Act

This rule does not involve any

collection of information for purposes of

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

Executive Order 12612, Federalism

This rule involves no policies that

have federalism implications under

Executive Order 12612, Federalism,

October 26, 1987, 3 CFR, 1987 Comp.,

p. 252.

Executive Order 12778, Civil Justice

Reform

This rule meets the applicable

standards of section 2(b)(2) of Executive

Order 12778, October 25, 1991, 56 FR

55195, 3 CFR, 1991 Comp., p. 309.

List of Subjects in 44 CFR Part 64

Flood insurance, Floodplains.

Accordingly, 44 CFR part 64 is

amended as follows:

PART 64—[AMENDED]

1. The authority citation for Part 64

continues to read as follows:

Authority: 42 U.S.C. 4001 et seq.,

Reorganization Plan No. 3 of 1978, 3 CFR,

1978 Comp., p. 329; E.O. 12127, 44 FR 19367,

3 CFR, 1979 Comp., p. 376.

§ 64.6 [Amended]

2. The tables published under the

authority of § 64.6 are amended as

follows: