[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 59996-59998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29388]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; correcting amendment.

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SUMMARY: This action corrects an interim final rule, which was 
published on January 28, 1997, regarding EPA conditional approval of 
Pennsylvania's enhanced inspection and maintenance (I/M) program. This 
action pertains to the consequences in the event that the Pennsylvania 
enhanced I/M program failed to commence per the deadlines set forth in 
EPA's interim final rule. EPA is taking this action for the purposes of 
consistency with rulemaking actions EPA has since taken on other 
states' inspection and maintenance programs. EPA is correcting its 
January 28 final rule through a direct final rule, without prior 
proposal, because the Agency views this as a noncontroversial SIP 
revision and anticipates no adverse comment from the public. A detailed 
description of the correction is set forth in the SUPPLEMENTARY 
INFORMATION section, below. If EPA receives adverse comments, the 
direct final rule will be withdrawn and all public comments received 
will be addressed in a subsequent final rule based on a parallel 
proposed rule, published elsewhere in this Federal Register. EPA will 
not institute a second comment period on this action. Any parties 
interested in commenting on this action should do so at this time.


[[Page 59997]]


DATES: Comments must be received in writing by December 8, 1997. If no 
adverse comments to this action is received, the action will become 
effective January 5, 1998. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to David 
L. Arnold, Chief, Ozone/CO and Mobile Sources Section (Mailcode 3AT21), 
U.S. Environmental Protection Agency, Region III, 841 Chestnut 
Building, Philadelphia, Pennsylvania 19107. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air, Radiation, and Toxics Division, U.S. 
Environmental Protection Agency, Region III, 841 Chestnut Building, 
Philadelphia, Pennsylvania 19107. Relevant documents are also available 
at the Pennsylvania Department of Environmental Resources Bureau of Air 
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, 
Pennsylvania 17105.

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

SUPPLEMENTARY INFORMATION:

Background

    On January 28, 1997 (62 FR 4004), EPA published an interim final 
rule approving a State Implementation Plan (SIP) revision submitted by 
Pennsylvania for an enhanced inspection and maintenance program for all 
subject areas in the Commonwealth.

Need for Correction

    As published, the direct final rule contains an error, which may 
prove to be misleading. Therefore, EPA's action today serves to clarify 
that rulemaking, as described in the January 28, 1997 document, the 
National Highway Safety Designation Act (NHSDA) directs EPA to grant 
interim approval for a period of 18 months to approvable decentralized 
I/M submittals. The NHSDA requires such a state to gather data on the 
program during that time, and to assess the effectiveness of the 
program at the end of the 18-month period. Therefore, EPA believes that 
Congress intended for programs to be implemented as soon as possible, 
and that these programs must commence testing by November 15, 1997, so 
that at least six months worth of operational data can be collected for 
the purpose of evaluating the program.
    Therefore, EPA set a strict timetable for states to begin testing 
under the NHSDA, and conditioned approval of Pennsylvania's I/M plan 
upon start up by November 15, 1997. EPA's January 28, 1997 (62 FR 4004) 
interim approval of Pennsylvania's plan was conditioned upon five major 
deficiencies--including start up of the program. In the Background 
section of the January 1997 rulemaking for Pennsylvania, EPA stated 
that if the Commonwealth failed to start its program according to 
schedule, the conditional interim approval would convert to a 
disapproval after a finding letter was sent by EPA to the state. 
However, in the Public Comments/Response to Comments section of EPA's 
January 1997 rule, EPA conversely stated that all conditions of the 
conditional approval automatically convert to disapprovals, by 
operation of law, if a state fails to remedy a deficiency upon which 
the plan is conditioned (by the date certain established under the 
conditional approval). EPA further added that in the event any 
condition is not fulfilled in a timely fashion, conversion to a 
disapproval is automatic. EPA would subsequently send a letter to the 
state notifying the state and the public that the approval had 
converted to a disapproval. These two sections seem to be inconsistent, 
and their meaning could be easily misinterpreted, if the responses in 
the Public Comments/Response to Comments section are applied to the 
start condition, in addition to the other noted major deficiencies.

Correction of Publication

    Although it is unclear in the January 28, 1997 rulemaking, EPA did 
not intend for I/M program implementation (or start up) to be a 
condition, the failure of which would automatically convert the 
Commonwealth's SIP approval to a disapproval. The I/M program start up 
condition is not imposed pursuant to a commitment to correct a 
deficient SIP under section 110(k)(4) of the Clean Air Act. Instead, 
EPA is imposing the start date condition under its general SIP approval 
authority under section 110(k)(3) of the Clean Air Act, which does not 
require automatic conversion in the event the condition is not 
satisfied in a timely manner [see EPA's Interim Final Rule approving 
Virginia's enhanced I/M program (62 FR 26746)] .
    Unlike the other specified conditions of Pennsylvania's interim 
approval, which are explicit conditions under section 110(k)(4) of the 
Clean Air Act, and which will trigger an automatic disapproval should 
the Commonwealth fail to meet its commitments, the start date provision 
will trigger a disapproval upon EPA's notification to the Commonwealth 
via letter that the program did not start per the specified deadlines 
imposed by EPA in its final rule--by no later than November 15, 1997 
for the five-county Philadelphia area and no later than November 15, 
1999 for the remaining 16 counties in Pennsylvania. In the event the 
program did not start in a timely manner, such a letter would notify 
the Commonwealth that this rulemaking action has been converted to a 
disapproval and that the first sanction associated with such a 
disapproval has been triggered, per the proposed interim final 
determination document published on October 3, 1996 (61 FR 31598). As 
explained in that document, the 18-month sanctions clock for 
Pennsylvania's I/M program SIP has already expired, with sanctions 
suspended while EPA undertook SIP rulemaking action.
    Although the January 28, 1997 final rule does not make the 
distinction clear between program start up and the other conditions 
placed upon the interim SIP approval, EPA intended to distinguish the 
failure for timely start up from all other major deficiencies, as 
explained above. Accordingly, the publication on January 28, 1997 (62 
FR 4004) of 40 CFR 52.2026 is being amended by revising paragraph (a) 
and (a)(1) to address the start date condition.

Final Action

    EPA is today correcting an error in its January 28, 1997 interim 
conditional approval of Pennsylvania's enhanced I/M program SIP 
revision. EPA is taking this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse public comments on this action. However, in a separate document 
in this Federal Register publication, EPA is proposing to approve the 
SIP revision should adverse or critical comments be filed. This action 
will be effective January 5, 1998 unless, within 30 days of 
publication, adverse or critical comments are received.
    If EPA receives such comments, this correction action will be 
withdrawn before the effective date by publishing a subsequent document 
that will withdraw the final action. All public comments received will 
then be addressed in a subsequent final rule based on the parallel 
proposal action. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on January 5, 1998.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action''

[[Page 59998]]

and, is therefore not subject to review by the Office of Management and 
Budget. In addition, this correction action does not impose any 
enforceable duty or contain any unfunded mandate as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior 
consultation with state officials as specified by Executive Order 12875 
(58 FR 58093, October 28, 1993), or involve special consideration of 
environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994).
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    However, conditional approvals of SIP submittals under section 110 
and subchapter I, part D of the CAA do not create any new requirements 
but simply approve requirements that a state is already imposing. 
Therefore, because the federal SIP approval does not impose any new 
requirements, I certify that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new Federal requirement.
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this correction action must be filed in the United 
States Court of Appeals for the appropriate circuit by January 5, 1998. 
Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this rule for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: October 29, 1997.
William T. Wisnieski,
Acting Regional Administrator, Region III.

    Part 52, Chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

    2. Section 52.2026 is amended by revising paragraphs (a) 
introductory text and (a)(1) to read as follows:


Sec. 52.2026  Conditional Approval.

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    (a) If the Commonwealth fails to start its program according to the 
schedule it provided (i.e., by no later than November 15, 1997 for the 
five-county Philadelphia area and no later than November 15, 1999 for 
the remaining sixteen counties), this conditional approval will convert 
to a disapproval after EPA sends a letter to the state. If the 
Commonwealth fails to satisfy the following conditions per the 
deadlines listed within each condition, this conditional approval will 
automatically convert to a disapproval as explained under section 
110(k) of the Clean Air Act. The conditions for approvability are as 
follows:
    (1) By no later than September 15, 1997, a notice must be published 
in the Pennsylvania Bulletin by the Secretary of the Pennsylvania 
Department of Transportation which certifies that the enhanced I/M 
program is required in order to comply with Federal law and also 
certifies the geographic areas which are subject to the enhanced I/M 
program (the geographic coverage must be identical to that listed in 
Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the 
commencement date of the enhanced I/M program.
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[FR Doc. 97-29388 Filed 11-5-97; 8:45 am]
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