[Federal Register Volume 70, Number 4 (Thursday, January 6, 2005)]
[Proposed Rules]
[Pages 1314-1324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-177]
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Part III
Environmental Protection Agency
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40 CFR Part 51
Amendments to Vehicle Inspection Maintenance Program Requirements To
Address the 8-Hour National Ambient Air Quality Standard for Ozone;
Notice of Proposed Rulemaking
Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 /
Proposed Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-7857-4]
RIN 2060-AM21
Amendments to Vehicle Inspection Maintenance Program Requirements
To Address the 8-Hour National Ambient Air Quality Standard for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes minor revisions to the Motor Vehicle
Inspection/Maintenance (I/M) regulation to update submission and
implementation deadlines and other timing-related requirements to more
appropriately reflect the implementation schedule for meeting the 8-
hour National Ambient Air Quality Standards (NAAQS) for ozone. This
proposal is directed specifically at those areas that will be newly
required to implement I/M as a result of being designated and
classified under the 8-hour ozone standard; the conditions under which
an existing I/M program under the 1-hour ozone standard must continue
operation under the 8-hour standard are addressed under the anti-
backsliding provisions of the April 30, 2004 final rulemaking which
established several key requirements for implementing the 8-hour ozone
standard (69 FR 23931).\1\
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\1\ Additional guidance on anti-backsliding under the 8-hour
standard and how it applies to I/M programs can be found in the May
12, 2004 policy memo signed by Tom Helms, Ozone Policy and
Strategies Group, and Leila Cook, State Measures and Conformity
Group, entitled ``1-Hour Ozone Maintenance Plans Containing Basic I/
M Programs,'' a copy of which is contained in the docket for this
proposed rulemaking.
DATES: Written comments on this proposal must be received no later than
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February 7, 2005.
ADDRESSES: You may submit comments, identified by Docket OAR-
2004-0095, by any of the following methods:
Federal eRulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include Docket
OAR-2004-0095 in the subject line of the message.
Fax: (202) 566-1741.
Mail: U.S. Environmental Protection Agency, EPA West (Air
Docket), 1200 Pennsylvania Avenue, NW., Room: B108; Mail Code: 6102T,
Washington, DC 20460.
Hand Delivery/Courier: EPA Docket Center (Air Docket),
U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW.,
Room: B108; Mail Code: 6102T, Washington, DC 20004.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
http://cascade.epa.gov/RightSite/dk_public_home.htm, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://cascade.epa.gov/RightSite/dk_public_home.htm or EPA Docket Center (Air Docket), U.S. Environmental
Protection Agency, 1301 Constitution Avenue, NW., Room: B108; Mail
Code: 6102T, Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: David Sosnowski, Office of
Transportation and Air Quality, Transportation and Regional Programs
Division, 2000 Traverwood, Ann Arbor, Michigan 48105. Telephone (734)
214-4823.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
I. Table of Contents
II. Summary of Proposal
III. Authority
IV. Background of the Proposed Amendments
A. Amendments to the I/M Performance Standards
B. Amendments to Program Evaluation Requirements
C. Amendments to the Basic I/M Waiver Requirements
D. Amendments to Update SIP Submission Deadlines
E. Amendments to Update Implementation Deadlines
V. Discussion of Major Issues
A. Impact on Existing I/M Programs
B. Impact on Future I/M Programs
VI. Economic Costs and Benefits
VII. Public Participation
VIII. Administrative Requirements
A. Administrative Designation
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
II. Summary of Proposal
On April 30, 2004, EPA published a notice of final rulemaking (69
FR 23931) addressing several key requirements related to the
implementation of the 8-hour ozone standard originally promulgated on
July 18, 1997 (62 FR 38856). Among other things, the 8-hour ozone
standard implementation rule established deadlines for meeting the 8-
hour ozone standard based upon an area's designation and
classification. The rule also addresses when State Implementation Plans
(SIPs) and attainment demonstrations must be submitted. As a general
matter, the deadlines associated with implementation of the 8-hour
ozone standard relate back to the effective date of an area's
designation and classification under the 8-hour ozone standard, and new
8-hour ozone non-attainment areas are given the same amount of time to
meet their various obligations as was given to comparably classified
non-attainment areas under the 1-hour ozone standard. For example,
under the Clean Air Act Amendments of 1990 (CAA), most areas designated
and classified as moderate under the 1-hour standard were given 6 years
after designation as non-attainment to attain the 1-hour ozone
standard. Similarly, under the rule for implementing the 8-hour ozone
standard, an area designated and classified as moderate under the 8-
hour standard will also have up to 6 years after the effective date of
its non-attainment designation to attain the 8-hour ozone standard.
In addition to establishing the above-mentioned deadlines, the
April 30, 2004 rulemaking also clarified how the CAA's anti-backsliding
provisions would be applied under the 8-hour standard to certain
applicable requirements such as I/M once the 1-hour ozone standard is
revoked. In general, if an existing I/M area is not able to redesignate
to attainment for the 1-hour ozone standard prior to revocation of that
standard (and is also designated as non-attainment for the 8-hour
standard, regardless of classification or subpart) then that area will
be required to continue implementing an I/M program until it has
attained the 8-hour ozone standard. Readers interested in learning more
about how the Act's anti-backsliding provisions apply to I/M under the
8-hour standard should consult the anti-backsliding provisions of the
April 30, 2004 final rulemaking
[[Page 1315]]
as well as the May 12, 2004 policy memo concerning exceptions to the
general anti-backsliding policy for certain maintenance areas signed by
Tom Helms and Leila Cook entitled ``1-Hour Ozone Maintenance Plans
Containing Basic I/M Programs,'' a copy of which is contained in the
docket for this proposed rulemaking.
When the rulemaking establishing the requirements for vehicle
inspection and maintenance (I/M) programs was first published in
November 1992, some of the deadlines were expressed relatively (i.e.,
``within X years of Y * * *'') while others were set as explicit dates
(i.e., ``no later than November 15, 1993 * * *''). The purpose of
today's proposed rulemaking is to revise outdated timing-related
references in the I/M rule such as submission dates, start dates,
evaluation dates, and other milestones and/or deadlines to make them
relevant for those areas that will be newly required to begin I/M
programs as a result of being designated and classified under the 8-
hour ozone standard. It is not the intention of this proposal to revise
or establish new requirements for existing I/M programs established in
response to the 1-hour ozone standard. As discussed above, the
requirements that apply to existing 1-hour I/M programs that must
continue implementation under the 8-hour standard have already been
addressed under the anti-backsliding provisions of the April 30, 2004
final rulemaking as well as the May 12, 2004 policy memo entitled ``1-
Hour Ozone Maintenance Plans Containing Basic I/M Programs,'' a copy of
which is contained in the docket for this proposed rulemaking.
Today's notice proposes to: (1) Revise sections 51.351 and 51.352
(the basic and enhanced I/M performance standards) to update the start
date and model year coverage associated with specific elements of the
basic and enhanced I/M performance standards as well as to set the
benchmark comparison date(s) for performance standard modeling purposes
that better reflects milestones associated with the 8-hour ozone
standard; (2) revise section 51.353 (network type and program
evaluation) to make the deadline for beginning the first round of
program evaluation testing (which is currently listed as ``no later
than November 30, 1998'') a relative deadline keyed to the date of
program start up; (3) amend section 51.360 (waivers and compliance via
diagnostic inspection) so that the deadline for establishing full
waiver limits for those basic I/M programs choosing to allow waivers
(currently, ``no later than January 1, 1998'') becomes ``January 1,
1998, or coincident with program start up, whichever is later''; (4)
update section 51.372 (state implementation plan submissions) to set
the I/M SIP submission deadline for areas newly required to adopt I/M
programs under the 8-hour ozone standard as 1 year after the effective
date of EPA's final action on today's proposal or 1 year after the
effective date of designation and classification under the 8-hour
standard (whichever is later); (5) update section 51.373
(implementation deadlines) to establish the implementation deadline for
new I/M programs required under the 8-hour standard as 4 years after
the effective date of designation and classification under the 8-hour
ozone standard; and (6) revise section 51.373 (implementation
deadlines) to clarify that the deadline for beginning OBD testing for
areas newly required to implement I/M as a result of being designated
and classified under the 8-hour ozone standard is ``coincident with
program start up.''
III. Authority
Authority for the rule changes proposed in this notice is granted
to EPA by sections 182, 184, 187, and 118 of the Clean Air Act as
amended (42 U.S.C. 7401, et seq.).
IV. Background of the Proposed Amendments
On July 18, 1997, EPA revised the National Ambient Air Quality
Standard (NAAQS) for ozone (62 FR 38856) by promulgating a standard of
0.08 parts per million (ppm) as measured over an 8-hour period. At the
time, EPA indicated its belief that the 8-hour ozone NAAQS should be
implemented under the less prescriptive requirements of subpart 1 of
part D of title I of the CAA rather than the more prescriptive mandates
of subpart 2 of that part. For mandatory I/M--which falls under subpart
2, as opposed to the more flexible subpart 1--this approach to
implementing the 8-hour ozone NAAQS solely under subpart 1 would have
meant that I/M would not be mandatory for any area that was newly
designated under the 8-hour ozone standard (unless the area in question
had previously been required to implement I/M under the 1-hour
standard, in which case the Act's anti-backsliding provisions would
apply).
Various industry groups and states challenged EPA's final rule
promulgating the 8-hour ozone NAAQS, which eventually led to a Supreme
Court ruling, issued in February 2001. Among other things, the Supreme
Court found that EPA's original implementation approach, which did not
provide a role for subpart 2 in implementing the 8-hour NAAQS, was
unreasonable. Specifically, the Court noted EPA could not ignore the
provisions of subpart 2 that ``eliminate[] regulatory discretion''
allowed by subpart 1. The Court also identified several portions of the
CAA's classification scheme under subpart 2 that are ``ill-fitted'' to
the revised standard and remanded the implementation rule to EPA for
the development of a reasonable approach for implementation. Whitman v.
American Trucking Assoc., 121 S.Ct. 916-919 (2001) (Whitman).
The Agency's 8-hour ozone implementation proposal was published in
the Federal Register on June 2, 2003 (68 FR 32802). Key portions of the
June 2, 2003 proposal relevant to I/M (and other subpart 2
requirements) were subsequently promulgated as final in a rulemaking
published in the Federal Register on April 30, 2004 (69 FR 23951). It
is, therefore, appropriate and timely for EPA to update the I/M rule to
clarify the requirements for areas newly required to implement I/M as a
result of being designated and classified under the 8-hour ozone
standard. It is not, however, the intention of this proposal to address
requirements for existing, 1-hour I/M programs which must continue
under the 8-hour standard; those requirements are already addressed
under the anti-backsliding provisions of the April 30, 2004 final
rulemaking as well as the May 12, 2004 policy memo entitled ``1-Hour
Ozone Maintenance Plans Containing Basic I/M Programs.''
Today's proposed revisions to the I/M rule and EPA's rationale for
each are discussed under separate headings below.
A. Amendments to the I/M Performance Standards
1. What Is an I/M Performance Standard?
An I/M performance standard is a collection of program design
elements (such as start date, test type, network type, vehicle
coverage, etc.) which defines a benchmark program to which a state's
proposed program is compared in terms of its potential to reduce
emissions of carbon monoxide (CO) and/or the ozone precursors,
hydrocarbons (HC) and oxides of nitrogen (NOX) by certain
benchmark comparison dates (also known as ``evaluation dates''). Unless
an alternative method or model has been approved by EPA, the mechanism
used to compare the performance standard program to a state's proposed
program is
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the currently applicable version of EPA's mobile source emission factor
model--currently, MOBILE6.2. The MOBILE model uses input files that
include descriptions of the program design elements but which also
include locally variable parameters, such as the age distribution of
the local fleet, average temperature of the local area, local fuel
characteristics, etc.
To determine whether or not a given program meets the performance
standard, it is necessary to produce three MOBILE input files: (1) The
applicable performance standard benchmark program; (2) the state's
proposed program; and (3) a no-I/M scenario which characterizes the
emissions from the local fleet with no I/M program in place. Once these
input files have been created, the MOBILE model is then run to produce
assessments of the emission levels expected with the performance
standard in place, with the proposed program in place, and with no I/M
program in place. The emission reduction ``credits'' associated with
the performance standard and proposed program are calculated by
subtracting the emission levels projected with either program in place
from the emission levels projected with no I/M program in place. If the
emission reduction credits associated with the state's proposed program
are equal to or greater than those associated with the performance
standard, then the state's proposed program is considered to have met
its performance standard.
2. What Are ``I/M Program Design Elements'' and How Do They Interact
With ``Locally Variable Parameters''?
I/M program design elements are program features most likely to
have a direct impact on the ability of the program to reduce levels of
the three criteria pollutants (CO, HC, and NOX). Factors
that directly influence the level of emission reductions associated
with a given I/M program design include but are not limited to the
following: test frequency, compliance rate, vehicle type coverage,
model year coverage, start date, evaluation date, and test type [e.g.,
idle, IM240, Acceleration Simulation Mode (ASM), onboard diagnostics
(OBD)].
To illustrate how an I/M program design element can interact with a
``locally variable parameter,'' consider model year (MY) coverage and a
local variable such as in-use fleet age distribution. Generally
speaking, the more model years covered, the greater the potential for
reducing emissions, though not all model years are considered equal in
this regard. For example, testing the newest vehicles only provides
marginal, additional emission reductions because new cars are unlikely
to have accumulated the wear and tear that typically lead to high
emissions. On the opposite end of the spectrum, testing the very oldest
cars may not provide much in the way of emission reductions either,
given the small number of such vehicles still capable of being driven
and their limited contribution to a given non-attainment area's overall
vehicle miles traveled (VMT). What constitutes optimal model year
coverage will vary from area to area, depending upon the
characteristics of the local, in-use fleet. This local variability (and
its impact on the emission reductions that can potentially be achieved
by a given I/M program) is one of the reasons why the input files used
to demonstrate compliance with an I/M performance standard must include
both the I/M program design elements that define the programs being
compared and the local variables likely to affect the mobile source
emission inventory, like local in-use fleet age distribution, VMT
distribution, average temperature, and local fuel composition.
3. How Much Discretion Does EPA Have in Deciding What I/M Program
Design Elements To Include in a Performance Standard?
In mandating that EPA establish performance standards for I/M
programs, the Clean Air Act Amendments of 1990 were fairly prescriptive
with regard to several of the I/M program design elements that must be
included. For example, EPA's I/M performance standard for areas
designated and classified as having ``serious'' or worse air quality
(i.e., the ``enhanced'' I/M performance standard) is required by the
statute to include annual vehicle testing with at least two tests per
vehicle (an emissions test and a component check to detect tampering
and/or misfueling) covering both passenger cars and light-duty trucks,
with no allowance for any model year exemptions. EPA was given more
discretion, however, when it came to determining what specific emission
test and failure threshold combination would apply for any given model
year covered by the performance standard, so that older vehicles
certified to more lenient emission standards would not be subject to
the same stringent I/M testing criteria established for newer, more
technologically advanced vehicles.
4. How Much Discretion Does a State Have in Deciding the Design of Its
Actual I/M Program?
The 1990 CAA specifies certain minimum program design requirements
that must be part of a state's I/M program. For example, all mandatory
I/M programs must include some level of OBD testing, while all enhanced
I/M programs are required to include some form of on-road testing.
Nevertheless, states have far more latitude in designing their own
programs than EPA has in setting the performance standard. For example,
states can adopt biennial programs provided equivalent emission
reductions are achieved and can exempt the newest and/or oldest model
years, while EPA's performance standard was required to be annual and
was not allowed to exempt vehicles based upon model year. As long as a
state's program meets the 1990 CAA's minimum requirements and can be
shown through modeling to achieve the same or better emission
reductions as the applicable performance standard, the actual design of
the I/M program (whether annual or biennial, with or without model year
exemptions, centralized or decentralized, allowing waivers or not,
using dynamometer-based testing or not, covering heavy-duty trucks or
not, etc.) is for the state to decide. The criteria that a subject area
should consider in designing (or redesigning) its I/M program are
discussed below, under item 10 of this subsection.
5. Why Do EPA's Current Performance Standards Need To Be Revised for
Areas Newly Required To Do I/M Under the 8-Hour Ozone NAAQS?
The current I/M performance standards were written to reflect the
deadlines set by the 1990 CAA for 1-hour ozone non-attainment areas.
For example, the start dates for various elements of the current
performance standards reflect either the actual mandated start dates
for those elements, or what were considered reasonable start dates for
areas newly required to do I/M under the 1-hour standard. These date
assumptions do not make sense under the schedule promulgated for
meeting the 8-hour standard. For example, one current enhanced I/M
performance standard assumes a start date of no later than 1995, while
current 8-hour ozone non-attainment areas were not even designated and
classified until 2004 and are not expected to submit attainment plans
until 2007. It is therefore essential to revise the timing assumptions
associated with the I/M performance standards so that they
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make sense for 8-hour ozone non-attainment areas new to I/M.
6. What Regulatory Change Does EPA Propose?
EPA proposes to make the following regulatory changes to the basic
I/M performance standard for areas newly required to implement a basic
I/M program as a result of being designated and classified moderate
non-attainment under the 8-hour ozone NAAQS (and meeting the existing
I/M population criteria): (1) Start date: four years after the
effective date of designation and classification under the 8-hour ozone
standard; (2) emission test types: Model Year (MY) 1968-2000--idle, MY
2001 and newer--onboard diagnostic (OBD) check; (3) evaluation date:
six years after the effective date of designation and classification
under the 8-hour ozone standard rounded to the nearest July. All other
basic I/M performance design elements shall be the same as previously
promulgated for 1-hour ozone non-attainment areas (see 40 CFR 51.352).
For areas newly required to implement an enhanced I/M program as a
result of being designated and classified as serious or higher non-
attainment under the 8-hour ozone NAAQS (and meeting the existing I/M
population criteria for enhanced I/M areas), EPA proposes that an 8-
hour ozone enhanced I/M performance standard be established assuming
the same program design elements as the current low enhanced I/M
performance standard defined at 40 CFR 51.351 (g) but with the
following exceptions: (1) Start date: four years after the effective
date of designation and classification under the 8-hour ozone standard;
(2) emission test types: MY 1968-2000--idle, MY 2001 and newer--onboard
diagnostic (OBD) check; (3) evaluation dates: six years after the
effective date of designation and classification under the 8-hour ozone
standard rounded to the nearest July and the applicable attainment
date, also rounded to the nearest July.
A state's program will be deemed in compliance with the 8-hour
ozone enhanced I/M performance standard if it can demonstrate through
modeling that the proposed program will achieve the same percent
reduction in HC and NOX: (1) As achieved by the performance
standard program based upon an evaluation date set to the six year
anniversary of the effective date of the area's designation and
classification under the 8-hour ozone standard, rounded to the nearest
July and (2) can demonstrate through modeling that the same percent
reduction as achieved under number 1 is still being achieved as of the
first July following the area's attainment date under the 8-hour ozone
standard.
7. Why Does EPA Propose That Only MY 2001 and Newer Vehicles Be
Subjected To the OBD-I/M Check as Part of the Proposed I/M Performance
Standards for Areas New to I/M Under the 8-Hour Ozone Standard When
Vehicles Have Included OBD Systems Since MY 1996? Does This Reflect
EPA's Recommended MY Coverage for Such Testing? Is There Something
Which Prevents Successful Testing of Older (i.e., pre-2001) OBD-
Equipped Vehicles?
EPA's proposed MY coverage for OBD-I/M testing in the 8-hour I/M
performance standards does not reflect the Agency's recommended MY
coverage for such testing nor does it suggest a problem with testing
pre-2001 OBD-equipped vehicles. Since 2000, I/M programs across the
country have been successfully testing MY 1996 and newer vehicles using
the OBD-I/M test, in accordance with EPA requirements and guidance.
Although older OBD-equipped vehicles tend to have higher failure rates
than newer OBD-equipped vehicles, this relationship holds true for all
older versus newer vehicles.
The reason EPA proposes to limit coverage of the OBD test as part
of the proposed 8-hour I/M performance standards goes to the heart of
why the CAA required EPA to establish performance standards as opposed
to mandating program designs: Flexibility. Test type coverage is one of
the mechanisms used in setting an I/M performance standard that can
either increase or all but eliminate the level of flexibility states
will have in designing their own I/M programs. If, for example, EPA
established a performance standard using maximum MY coverage of the
most rigorous test available, the performance standard would
effectively cease to be a ``performance standard'' and would become,
instead, a mandatory program design.
In 1992 when the original I/M performance standards were
established, OBD testing was included in the performance standards only
as an uncredited placeholder because, at the time, no OBD-equipped
vehicles were available for test credit assessment. Since that time,
however, EPA has done extensive testing of OBD-equipped vehicles and
the effectiveness of OBD testing. As a result, EPA's mobile source
emission factor model (currently MOBILE6.2) affords OBD testing the
maximum credit available to any I/M test. This, in turn, means that
what was previously an uncredited placeholder has now become the
driving factor in determining how much or how little flexibility is
reflected in the I/M performance standards.
EPA is proposing MY 2001 and newer as the model year coverage for
the OBD test in the 8-hour I/M performance standards because that is
the level of coverage that has been found (through modeling) to afford
8-hour areas newly subject to I/M the same level of flexibility
included in the existing I/M regulations and currently available to I/M
programs required under the 1-hour standard. MY 2001 was chosen to
ensure that new and existing programs are held to comparable standards.
EPA invites commenters interested in proposing alternative ranges of
model year coverage to provide their recommendations, including an
explanation addressing why the alternative is preferable to today's
proposal.
8. How Much Flexibility Will States Have in Designing Their Newly
Required, 8-Hour I/M Programs To Meet EPA's Proposed I/M Performance
Standards Under the 8-Hour Ozone Standard?
Under EPA's proposal, areas newly subject to I/M under the 8-hour
ozone standard will have approximately the same level of flexibility
that currently exists for areas subject to I/M as a result of the 1-
hour standard. That said, designing a new I/M program will nevertheless
involve facing different opportunities and/or challenges than were
faced in the mid-1990's when many of today's current programs were
designed. This is because the vehicle fleet is not static; as time
passes--and standards and requirements change--the relative proportion
of old to new technology vehicles is constantly changing, with the
percent and number of older technology vehicles shrinking as newer
technology vehicles begin to dominate the in-use fleet.
In the mid-1990's, fleet turnover was not much of an issue when it
came to designing I/M programs because even though testing technology
had evolved considerably since the simple idle test, the new tests
were, for the most part, downwardly compatible. An IM240 could be used
to test a 1968 model year vehicle just as readily as it could test a
1993 model year vehicle. Such is no longer the case with the OBD test,
which, while inexpensive, accurate, easy, and effective, can only be
performed on OBD-equipped vehicles (i.e., light-duty vehicles and
trucks, MY 1996 and newer). Given the substantial difference in capital
investment involved in traditional tailpipe testing
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(and especially dynamometer-based testing like the IM240 and ASM)
versus that associated with the OBD test, areas newly required to
implement I/M under the 8-hour standard will face a challenge not faced
by I/M programs which began testing in the 1990's or earlier--namely,
how to take full advantage of the evolving nature of the in-use fleet.
As suggested earlier, one important characteristic of that evolving in-
use fleet is the rate at which OBD-equipped vehicles are becoming an
increasing proportion of any fleet while non-OBD-equipped vehicles play
an ever shrinking role, in terms of absolute numbers as well as overall
contribution to an area's VMT and the local mobile source emission
inventory. This trend toward an OBD majority in-use fleet will only
become more pronounced as time goes on, making the prospect of an I/M
program that relies exclusively (or nearly exclusively) on OBD testing
an attractive alternative to traditional, tailpipe-based testing.
Based upon the time period associated with implementing the 8-hour
ozone standard and the national default rate of fleet turnover from
non-OBD-equipped to OBD-equipped vehicles, EPA believes that both of
today's proposed basic and enhanced I/M performance standards can be
met by a state program that exempts model year 1995 and older vehicles
from testing and only performs the OBD and gas cap test on MY 1996 and
newer, OBD-equipped vehicles. The degree to which the proposed
standards also allow for other forms of flexibility (such as allowing
newer model year exemptions, and/or permitting the testing of vehicles
biennially as opposed to annually) will depend largely upon an area's
locally variable parameters, such as local fleet age and VMT
distributions. Whether adopting such a program will meet the area's
other Clean Air Act goals, however, will vary on a case-by-case basis.
Item 10 of this subsection will discuss some of the criteria states
should consider as they begin the process of developing their newly
required I/M programs (as well as revamping existing programs to
capitalize on evolving vehicle and vehicle testing technology).
9. Is EPA Barring 8-Hour Ozone Non-Attainment Areas Newly Required To
Adopt I/M From Performing Tailpipe Testing?
No. EPA does not have the authority to prohibit I/M programs from
tailpipe testing, nor would it be appropriate to do so. Instead, EPA is
merely providing the flexibility needed to allow areas to exempt
vehicles from tailpipe testing in favor of OBD testing on vehicles MY
1996 and newer, if a state so desires. However, EPA does recommend that
8-hour non-attainment areas newly required to implement I/M programs
look closely at their local fleet characteristics such as age
distributions, the fraction of local VMT attributable to MY 1995 and
older vehicles, and the rate of fleet turn-over from non-OBD-equipped
vehicles to OBD-equipped vehicles to assess the financial viability of
various program designs before deciding on an appropriate program
design. For example, based upon the number of such vehicles in the
local fleet, can the cost of starting up and running a dynamometer-
based testing network dedicated to MY 1995 and older vehicles be
recouped without charging an exorbitant per-vehicle test fee or
subsidizing the program through some alternative funding mechanism,
such as an across-the-board increase in vehicle registration fees?
10. What Are Some of the Factors That Should Be Considered as Areas New
to I/M Begin Designing Their Vehicle Inspection Programs in Response to
the 8-Hour Ozone Standard?
As newly required (as well as existing) I/M programs look at ways
to optimize those programs, it is appropriate to consider what
programmatic and financial efficiencies and other improvements might be
feasible. To facilitate this process, in 2002, EPA (in consultation
with the states and other stakeholders) developed a list of questions
and/or issues states should consider as they make choices about their
existing and/or future I/M programs, entitled ``Considerations for
State I/M Program Optimization,'' \2\ an abbreviated version of which
is provided in the list of criteria below.
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\2\ A copy of the full document from which these criteria are
drawn is located in the docket for this action (Docket
OAR-2004-0095).
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In providing this list, it is not EPA's intention to advocate for
one I/M program type or element versus another, or to make formal
recommendations. The history of I/M has clearly shown that what is
appropriate for one area is not always appropriate for another. The
following list is therefore intended merely to outline the various
factors that should be taken into consideration when designing (or
redesigning) the optimal I/M program for a given area. It should be
used to supplement whatever I/M optimization efforts may already be
underway, to raise issues that may have been overlooked, and to
otherwise ensure that the optimization process is as comprehensive as
possible and does not lead to unintended consequences.
Although today's proposal focuses on those 8-hour ozone non-
attainment areas brand-new to I/M, the list of criteria provided below
includes considerations that may be relevant to both new and/or
existing I/M programs.\3\ States should consult with their EPA Regional
offices early in the I/M optimization process, and such efforts should
be conducted taking the following factors into consideration:
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\3\ It should be noted that any revision to an existing I/M
program which is part of a previously approved SIP will require the
submission and approval of a SIP revision prior to those revisions
going into effect.
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What portion of the state's emissions inventories for
ozone, CO, and/or air toxics do on-road mobile sources constitute?
What portion of the state's attainment, maintenance, and/
or Rate-of-Progress (ROP) plans does and/or will I/M constitute?
How important will I/M reductions be in demonstrating
attainment and transportation conformity?
Are there additional emission reduction benefits an area
may need from an I/M program in addition to what is needed to meet the
performance standard?
Alternatively, how much credit can an area afford to lose
without negatively affecting these plans?
If an area with an existing I/M program is redesignated to
attainment, what changes (if any) can be made without backsliding or
interfering with any other CAA requirement?
Even if an existing I/M program plays a relatively modest
role in a state's 1-hour ozone standard attainment strategy, what role
will it play in attaining the 8-hour ozone standard?
Is the I/M program useful in meeting an area's goal for
reducing air toxics? Will an OBD-only program meet this goal?
What are the legal and/or contractual constraints
associated with optimizing the I/M program?
What number of MYs should be exempted to strike the right
balance among competing factors such as the likelihood of failure,
equity to vehicle owners of exposure to program requirements, and the
cost of testing clean vehicles?
What is the proportion of pre- to post-MY 1996 vehicles in
the local fleet? When will post-MY 1996 vehicles predominate?
How do the pre- and post-MY 1996 fleets compare in terms
of the VMT attributed to each? When will MY 1996
[[Page 1319]]
and newer vehicles make up the majority of the area's VMT?
What proportion of the local mobile source emission
inventory is attributable to pre- vs. post-MY 1996 vehicles?
What are the projected failure rates for the pre- vs.
post-MY 1996 fleets?
If an area already has an I/M program, how recent was the
last change to the program? Will changing the program again undermine
public confidence in the program? Will voluntarily changing the program
make it vulnerable to pressure to incorporate additional, unwelcome
changes?
Will changing an existing program require changes to the
program's legal authority?
B. Amendments to Program Evaluation Requirements
1. What Is the Program Evaluation Requirement?
Section 182(c)(3)(C) of the 1990 CAA requires that each state
subject to enhanced I/M shall ``biennially prepare a report to the
Administrator which assesses the emission reductions achieved by the
program required under this paragraph based upon data collected during
the inspection and repair of vehicles. The methods used to assess the
emission reductions shall be those established by the Administrator.''
Section 51.353 of EPA's current I/M rule (network type and program
evaluation) provides additional detail on how this requirement is to be
met, including minimum sampling requirements and specific deadlines by
which program evaluation testing must begin. Currently, section
51.353(c)(4) of the I/M rule specifies that the first round of program
evaluation testing is to begin ``no later than November 30, 1998.''
2. What Regulatory Change Does EPA Propose?
EPA proposes to revise section 51.353(c)(4) of the I/M rule which
currently indicates that the first round of program evaluation testing
is to begin ``no later than November 30, 1998'' to ``no later than 1
year after program start up.'' This 12 month period prior to the
beginning of program evaluation testing is comparable to that permitted
under the original I/M program evaluation requirements and is intended
to allow new programs under the 8-hour ozone standard the opportunity
to resolve the sorts of start-up problems typical of such programs in
their first few months of implementation.
C. Amendments to the Basic I/M Waiver Requirements
1. What Are the Basic I/M Waiver Requirements?
Neither the 1990 CAA nor the existing I/M rule require (or
prohibit) basic I/M programs to grant waivers from the program's repair
requirements once a minimum dollar limit has been spent toward repairs
relevant to the cause of failure. To help ensure that the issuance of
waivers did not become excessive in the basic I/M programs that chose
to allow them, EPA established specific repair expenditure levels that
had to be met prior to a waiver's being granted in a basic I/M program
as part of its original 1992 I/M rule. Specifically, for pre-1981 model
year vehicles, a minimum of $75 has to be spent on relevant repairs
while for 1981 and newer vehicles, the minimum expenditure level is
$200. Because several basic I/M programs were already operating at the
time the 1992 rule was promulgated--some complying with the waiver
allowances provided in the rule, some not--EPA also established a
deadline by which the new requirements were to be met (i.e., ``no later
than January 1, 1998'').
2. What Regulatory Change Does EPA Propose?
EPA proposes to amend section 51.360(a)(6) which sets the deadline
for establishing waiver limits for those basic I/M programs choosing to
allow waivers (currently, ``no later than January 1, 1998'') to read
``January 1, 1998, or coincident with program start up, whichever is
later.'' Since all existing programs should already be meeting these
requirements and requiring spending limits prior to waiver will impose
no additional program implementation delay in areas newly starting
programs, EPA sees no reason to delay implementation of these
requirements for either new or existing programs.
D. Amendments to Update SIP Submission Deadlines
1. What Are the Current SIP Submission Deadlines?
Under the CAA as amended in 1990, areas required to implement basic
I/M programs were to submit SIP revisions for such programs
``immediately after the date of enactment'' of the 1990 Act. The basic
I/M programs submitted under this provision were to be based upon pre-
existing EPA I/M guidance that was in effect immediately before passage
of the 1990 Act. As a separate (but related) matter, the 1990 CAA
required EPA to revise this pre-1990 I/M guidance within 12 months of
enactment. Enhanced I/M SIPs were required to be submitted 1 year after
EPA was to have published its revised I/M guidance (i.e., two years
after enactment). Previously submitted basic I/M SIPs were required to
be revised to incorporate EPA's revised I/M guidance.
The Act did not define what was meant by the term ``immediately,''
nor did it attempt to explain how such a requirement might be met,
especially for areas new to the I/M requirement and therefore lacking
the necessary legal authority and implementing regulations. To provide
basic I/M program areas a reasonable amount of time in which to prepare
and submit the required basic I/M SIP, EPA proposed to use its
authority to grant conditional approvals under section 110(k)(4) of the
1990 CAA to give these areas up to 1 year after conditional approval of
a so-called ``committal SIP''.\4\ EPA was challenged on its attempt to
extend I/M SIP deadlines through the SIP approval process and although
the court found that 110(k)(4) could not be used to effect such
extensions, in its decision, the court identified the states' need for
further guidance from EPA in the case of enhanced I/M programs as the
deciding factor regarding whether or not a given I/M deadline extension
was justified. See Natural Resources Defense Council, Inc. v. EPA, et
al., 22 F.3d 1125 (D.C. Cir. 1994). Because existing pre-1990 I/M
policy was adequate for a state to develop and submit a basic I/M SIP,
the court ruled that EPA's attempt to extend the basic I/M SIP
submittal deadline was unjustified in that case. In the case of
enhanced I/M programs, however, existing pre-1990 I/M policy was not
adequate and enhanced I/M areas could not proceed with SIP development
until after EPA published its revised guidance. In this latter case,
therefore, the court ruled that although 110(k)(4) should not have been
used, extending the SIP submittal deadline for enhanced I/M SIPs was
justified, given that EPA's guidance was not published until 10 days
before those SIPs were due.
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\4\ A ``committal SIP'' consisted of a commitment from a state's
governor or his/her designee to meet a list of milestones leading to
the submittal of a full SIP within 1 year.
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Unlike 1990 when basic and enhanced I/M programs differed with
regard to the availability of adequate existing EPA guidance from which
to proceed with SIP development, under the 8-hour ozone standard newly
required I/M programs of either variety are equally dependent upon
EPA's
[[Page 1320]]
revising its existing I/M regulations. As previously discussed, many of
the timing-related requirements of the I/M rule are no longer relevant
within the context of the 8-hour ozone standard and must therefore be
revised before states can proceed with I/M SIP development. For
example, if we were to apply the existing basic I/M performance
standard (as written) to a newly required, basic I/M program area under
the new standards, that area would be required to demonstrate that back
in 1996 (when it had no I/M program in place) it was nevertheless
achieving the same or better emission reductions from that non-existent
program as it would have achieved if the performance standard program
had been in place. Clearly, this would be an absurd requirement, and
that is why EPA is proposing to adopt a more rational approach, as
discussed below. Thus EPA believes that consistent with the NRDC case,
it is appropriate to interpret the I/M SIP submittal requirement of the
CAA to allow areas subject to that requirement to have a reasonable
time after promulgation of EPA's revised I/M rulemaking to adopt and
submit such programs. EPA concludes that any other interpretation of
the statute would produce absurd results.
2. What Regulatory Change Does EPA Propose?
Because areas newly required to adopt either basic or enhanced I/M
programs under the 8-hour ozone standard are unable to produce a
complete and approvable SIP until EPA has revised its existing I/M
regulations, EPA proposes to update section 51.372 (state
implementation plan submissions) to clarify that such areas are
required to submit their I/M SIPs, whether basic or enhanced, within 1
year after the effective date of EPA's taking final action on the I/M
rule revisions proposed here today. For areas newly designated as non-
attainment under the 8-hour ozone standard after finalization of this
proposal, we propose that those areas submit their I/M SIPs within 1
year of the effective date of their designation and classification.
Based upon its experience with the submission of I/M SIPs in response
to the 1990 Act's requirements for 1-hour I/M programs, EPA deems this
to be a reasonable amount of time in which to develop and submit an I/M
SIP, given the states' need to secure legal authority, develop
implementing regulations, provide notice-and-comment opportunity, etc.
As noted by EPA both in its general preamble published after the 1990
amendments to the Act and in the 1992 I/M rules, 57 FR 13498, 13517 and
57 FR 52950, 52970, respectively, EPA has long believed that one year
is an appropriate time period for states to obtain necessary
legislative authority to adopt and submit an I/M program.
E. Amendments To Update Implementation Deadlines
1. What Are the Current Implementation Deadlines?
Under section 51.373 of the 1992 I/M rule, non-attainment areas
required to begin (or upgrade) basic I/M programs as a result of their
classification under the 1990 CAA were given until January 1994 to
begin implementing if a decentralized program was adopted, or July
1994, if a centralized program was adopted. Areas newly required to
adopt basic I/M as a result of being designated and classified after
promulgation of the 1992 I/M rule were required to begin implementation
one year after obtaining legal authority (if a decentralized program
was adopted) or two years after obtaining legal authority (if a
centralized program was adopted). Enhanced I/M program areas required
as a result of being designated and classified under the 1990 CAA were
allowed to phase-in implementation of the enhanced I/M program between
January 1, 1995 and January 1, 1996, provided at least 30% of the I/M
vehicle population was subject to the full requirements of the program
as of January 1, 1995. Areas newly required to adopt enhanced I/M as a
result of being designated and classified after promulgation of the
1992 I/M rule were required to begin implementation two years after
obtaining legal authority. Separately, section 51.373 of the I/M rule
established a range of deadline options for implementation of the OBD
checks required of all I/M programs under the 1990 CAA. While the
deadline for requiring repairs based upon the OBD test varied depending
upon the phase-in option chosen by the program, all I/M programs
required as a result of being designated and classified under the 1-
hour ozone standard were required to begin some form of OBD testing no
later than January 1, 2003.
2. What Regulatory Change Does EPA Propose?
EPA proposes to revise section 51.373 (implementation deadlines) to
replace the current fixed implementation deadlines for I/M programs
required as a result of designation and classification after 1992 with
a new, relative implementation deadline for areas newly subject to I/M
as a result of being designated non-attainment under the 8-hour ozone
standard and classified as moderate non-attainment or higher.
Specifically, EPA proposes that all I/M programs newly required based
upon their designation and classification under the 8-hour ozone
standard--whether basic or enhanced--begin full implementation of the
required program within 4 years after the effective date of designation
and classification under the 8-hour ozone standard. EPA believes that
the proposed implementation deadline is reasonable and necessary to
allow for sufficient time to construct and start-up a program after
program adoption following EPA promulgation of final guidance, as well
as to provide a minimum of one full, biennial test cycle prior to the
first milestone date for newly required I/M programs under the 8-hour
ozone standard (i.e., the attainment deadline for moderate 8-hour ozone
non-attainment areas, which is 6 years after the effective date of
designation and classification, as described below).
Additionally, EPA proposes to clarify that the deadline for
beginning pass-fail OBD checks for areas newly required to perform I/M
testing as a result of being designated and classified under the 8-hour
ozone standard is coincident with implementation of all other program
elements, i.e., within 4 years after the effective date of designation
and classification. Since current model year vehicles are all OBD
equipped and viable OBD test methods have been available for a number
of years EPA sees no reason to delay start up of OBD testing beyond the
start date of the program as a whole.
V. Discussion of Major Issues
A. Impact on Existing I/M Programs
The proposed amendments to the I/M rule do not change the
requirements that currently apply to existing I/M programs required as
a result of being classified under the 1-hour ozone standard. The
proposed amendments are directed specifically at those areas that will
be newly required to implement I/M as a result of being designated and
classified under the 8-hour ozone standard. The intention of these
proposed amendments is to ensure that these new program areas are
afforded generally the same level of flexibility in program design and
implementation as is currently available to existing, 1-hour I/M
programs. Readers interested in learning the conditions under which an
existing 1-hour I/M program must continue operation under the 8-hour
standard should consult the anti-backsliding provisions of the April
30, 2004 final rulemaking which
[[Page 1321]]
established several key requirements for implementing the 8-hour ozone
standard (69 FR 23931).\5\
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\5\ Additional guidance on anti-backsliding under the 8-hour
standard and how it applies to I/M programs can be found in the May
12, 2004 policy memo signed by Tom Helms, Ozone Policy and
Strategies Group, and Leila Cook, State Measures and Conformity
Group, entitled ``1-Hour Ozone Maintenance Plans Containing Basic I/
M Programs,'' a copy of which is contained in the docket for this
proposed rulemaking.
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B. Impact on Future I/M Programs
The proposed amendments are intended specifically for those areas
which currently do not perform I/M testing, but will be required to do
so as a result of being designated and classified under the 8-hour
ozone standard. Should they be made final, these amendments will allow
future I/M program areas the flexibility necessary to design from the
ground up reasonable, cost effective, motorist-friendly I/M programs
that take full advantage of advances in vehicle and vehicle-testing
technology, as well as fleet turnover. The level of flexibility
proposed to be provided for these new program areas is comparable to
the level of flexibility already available to existing 1-hour I/M
programs.
VI. Economic Costs and Benefits
Today's proposed revisions provide states with an incentive to
increase the cost effectiveness and efficiency of future I/M programs.
The proposal, if finalized, will lessen rather than increase the
potential economic burden on states of implementing such programs.
Furthermore, states are under no obligation, legal or otherwise, to
modify existing plans meeting the previously applicable requirements as
a result of today's proposal.
VII. Public Participation
EPA desires full public participation in arriving at final
decisions in this rulemaking action. EPA solicits comments on all
aspects of this proposal from all parties. Wherever applicable, full
supporting data and detailed analysis should also be submitted to allow
EPA to make maximum use of the comments. All comments should be
directed to the Air Docket, Docket No. OAR-2004-0095.
VIII. Administrative Requirement
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines significant ``regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
There are no additional information requirements in this proposed
rule beyond those already imposed by the existing I/M rule which
require the approval of the Office of Management and Budget under the
Paperwork Reduction Act 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this proposal will not
have a significant economic impact on a substantial number of small
entities and, therefore, is not subject to the requirement of a
Regulatory Impact Analysis. A small entity may include a small
government entity or jurisdiction. This certification is based on the
fact that the I/M areas impacted by the proposed rulemaking do not meet
the definition of a small government jurisdiction, that is,
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000.'' The basic and enhanced I/M requirements only apply to
urbanized areas with population in excess of 200,000 depending on
location. Furthermore, the impact created by the proposed action does
not increase the preexisting burden of the existing rules which this
proposal seeks to amend.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule itself does not contain
a Federal mandate that may result in expenditures of $100 million or
more for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The primary purpose of this proposed
rule is to amend the existing federal I/M regulations to provide
flexibility in how the regulations cover areas newly designated non-
attainment under the 8-hour ozone ambient air quality standards. Clean
Air Act sections 182(b)(4) and 182(c)(3) require the applicability of
I/M to such areas. Thus, although this rule explains how I/M
[[Page 1322]]
should be conducted, it merely implements already established law that
imposes I/M requirements and does not itself impose requirements that
may result in expenditures of $100 million or more in any year. The
intention of this proposal is to improve the I/M regulation by
implementing the rule in a more practicable manner and/or to clarify I/
M requirements that already exist. None of these proposed amendments
impose any additional burdens beyond that already imposed by applicable
federal law; thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the UMRA and EPA has not
prepared a statement with respect to budgetary impacts.
E. Executive Order 13132: Federalism
Executive Order 13132, Federalism (64 FR 43255, August 10, 1999),
revokes and replaces Executive Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental Partnership). Executive Order 13132
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' is defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, EPA may
not issue a regulation that has federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the regulation. EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the Agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft rule with federalism implications
to OMB for review pursuant to Executive Order 12866, EPA must include a
certification from the Agency's Federalism Official stating that EPA
has met the requirements of Executive Order 13132 in a meaningful and
timely manner.
This proposed rule, that amends a regulation that is required by
statute, will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. The Clean Air Act
requires I/M to apply in certain non-attainment areas as a matter of
law, and this proposed rule merely provides areas newly designated as
non-attainment under the 8-hour ozone standard additional flexibility
with regard to meeting their existing statutory obligations.
In summary, this proposed rule is required primarily by the
statutory requirements imposed by the Clean Air Act, and the proposed
rule by itself will not have a substantial impact on States. Thus, the
requirements of section 6 of the Executive Order do not apply to this
proposed rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Today's amendments to the I/M rule do not significantly or uniquely
affect the communities of Indian tribal governments. Specifically, this
proposed rule would incorporate into the I/M rule flexible provisions
addressing newly designated 8-hour ozone non-attainment areas subject
to I/M requirements under the Act, and these provisions would not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Accordingly, the requirements of Executive Order 13175 are not
applicable to this proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not economically significant within the meaning of Executive
Order 12866 and does not involve the consideration of relative
environmental health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This rule is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this proposed rule is not
likely to have any significant adverse effects on energy supply.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and
[[Page 1323]]
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, the use of voluntary consensus standards does not apply to
this proposed rule.
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Transportation.
Dated: December 22, 2004.
Michael O. Leavitt,
Administrator.
For the reasons set out in the preamble, part 51 of chapter I,
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 51--[AMENDED]
1. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
2. Section 51.351 is proposed to be amended by revising paragraph
(c) and adding a new paragraph (i) to read as follows:
Sec. 51.351 Enhanced I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). For those areas required to
implement an enhanced I/M program prior to the effective date of
designation and classifications under the 8-hour ozone standard, the
performance standard shall include inspection of all model year 1996
and later light-duty vehicles and light-duty trucks equipped with
certified on-board diagnostic systems, and repair of malfunctions or
system deterioration identified by or affecting OBD systems as
specified in Sec. 51.357, and assuming a start date of 2002 for such
testing. For areas required to implement enhanced I/M as a result of
designation and classification under the 8-hour ozone standard, the
performance standard defined in paragraph (i) of this section shall
include inspection of all model year 2001 and later light-duty vehicles
and light-duty trucks equipped with certified on-board diagnostic
systems, and repair of malfunctions or system deterioration identified
by or affecting OBD systems as specified in Sec. 51.357, and assuming
a start date of 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
* * * * *
(i) Enhanced performance standard for areas designated and
classified under the 8-hour ozone standard. Areas required to implement
an enhanced I/M program as a result of being designated and classified
under the 8-hour ozone standard, must meet or exceed the HC and
NOX emission reductions achieved by the model program
defined below:
(1) Network type. Centralized testing.
(2) Start date. 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
(3) Test frequency. Annual testing.
(4) Model year coverage. Testing of 1968 and newer vehicles.
(5) Vehicle type coverage. Light duty vehicles, and light duty
trucks, rated up to 8,500 pounds GVWR.
(6) Emission test type. Idle testing (as described in appendix B of
subpart S) for 1968-2000 vehicles; onboard diagnostic checks on 2001
and newer vehicles.
(7) Emission standards. Those specified in 40 CFR part 85, subpart
W.
(8) Emission control device inspections. Visual inspection of the
positive crankcase ventilation valve on all 1968 through 1971 model
year vehicles, inclusive, and of the exhaust gas recirculation valve on
all 1972 and newer model year vehicles.
(9) Evaporative system function checks. None, with the exception of
those performed by the OBD system on vehicles so-equipped and only for
model year 2001 and newer vehicles.
(10) Stringency. A 20% emission test failure rate among pre-1981
model year vehicles.
(11) Waiver rate. A 3% waiver rate, as a percentage of failed
vehicles.
(12) Compliance rate. A 96% compliance rate.
(13) Evaluation date. Enhanced I/M program areas subject to the
provisions of this paragraph (i) shall be shown to obtain the same or
lower emission levels for HC and NOX as the model program
described in this paragraph assuming an evaluation date set 6 years
after the effective date of designation and classification under the 8-
hour ozone standard (rounded to the nearest July) to within +/-0.02
gpm. Subject programs shall demonstrate through modeling the ability to
maintain this percent level of emission reduction (or better) through
their attainment date for the 8-hour ozone standard, also rounded to
the nearest July.
* * * * *
3. Section 51.352 is proposed to be amended by revising paragraph
(c) and adding a new paragraph (e) to read as follows:
Sec. 51.352 Basic I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). For those areas required to
implement a basic I/M program prior to the effective date of
designation and classification under the 8-hour ozone standard, the
performance standard shall include inspection of all model year 1996
and later light-duty vehicles equipped with certified on-board
diagnostic systems, and repair of malfunctions or system deterioration
identified by or affecting OBD systems as specified in Sec. 51.357,
and assuming a start date of 2002 for such testing. For areas required
to implement basic I/M as a result of designation and classification
under the 8-hour ozone standard, the performance standard defined in
paragraph (e) of this section shall include inspection of all model
year 2001 and later light-duty vehicles equipped with certified on-
board diagnostic systems, and repair of malfunctions or system
deterioration identified by or affecting OBD systems as specified in
Sec. 51.357, and assuming a start date of 4 years after the effective
date of designation and classification under the 8-hour ozone standard.
* * * * *
(e) Basic performance standard for areas designated non-attainment
for the 8-hour ozone standard. Areas required to implement a basic I/M
program as a result of being designated and classified under the 8-hour
ozone standard, must meet or exceed the emission reductions achieved by
the model program defined below for the applicable ozone precursor(s):
(1) Network type. Centralized testing.
(2) Start date. 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
(3) Test frequency. Annual testing.
(4) Model year coverage. Testing of 1968 and newer vehicles.
(5) Vehicle type coverage. Light duty vehicles.
(6) Emission test type. Idle testing (as described in appendix B of
subpart S) for 1968-2000 vehicles; onboard diagnostic checks on 2001
and newer vehicles.
(7) Emission standards. Those specified in 40 CFR part 85, subpart
W.
(8) Emission control device inspections. None.
(9) Evaporative system function checks. None, with the exception of
those performed by the OBD system on vehicles so-equipped and only for
model year 2001 and newer vehicles.
[[Page 1324]]
(10) Stringency. A 20% emission test failure rate among pre-1981
model year vehicles.
(11) Waiver rate. A 0% waiver rate, as a percentage of failed
vehicles.
(12) Compliance rate. A 100% compliance rate.
(13) Evaluation date. Basic I/M program areas subject to the
provisions of this paragraph (e) shall be shown to obtain the same or
lower emission levels as the model program described in this paragraph
by an evaluation date set 6 years after the effective date of
designation and classification under the 8-hour ozone standard (rounded
to the nearest July) for the applicable ozone precursor(s).
* * * * *
4. Section 51.353 is proposed to be amended by revising paragraph
(c)(4) to read as follows:
Sec. 51.353 Network type and program evaluation.
* * * * *
(c) * * *
(4) The program evaluation test data shall be submitted to EPA and
shall be capable of providing accurate information about the overall
effectiveness of an I/M program, such evaluation to begin no later than
1 year after program start-up.
* * * * *
5. Section 51.360 is proposed to be amended by revising paragraph
(a)(6) to read as follows:
Sec. 51.360 Waivers and compliance via diagnostic inspection.
* * * * *
(a) * * *
(6) In basic programs, a minimum of $75 for pre-81 vehicles and
$200 for 1981 and newer vehicles shall be spent in order to qualify for
a waiver. These model year cutoffs and the associated dollar limits
shall be in full effect by January 1, 1998, or coincident with program
start-up, whichever is later. Prior to January 1, 1998, States may
adopt any minimum expenditure commensurate with the waiver rate
committed to for the purposes of modeling compliance with the basic I/M
performance standard.
* * * * *
6. Section 51.372 is proposed to be amended by removing and
reserving paragraph (b)(1) and (b)(3) and by revising paragraph (b)(2)
to read as follows:
Sec. 51.372 State implementation plan submissions.
* * * * *
(b) * * *
(2) A SIP revision required as a result of designation for a
National Ambient Air Quality Standard in place prior to implementation
of the 8-hour ozone standard and including all necessary legal
authority and the items specified in paragraphs (a)(1) through (a)(8)
of this section, shall be submitted no later than November 15, 1993.
For non-attainment areas designated and classified under the 8-hour
ozone standard, a SIP revision including all necessary legal authority
and the items specified in paragraphs (a)(1) through (a)(8) of this
section, shall be submitted by [insert date 12 months after the
effective date of EPA's final action on this proposal] or 1 year after
the effective date of designation and classification under the 8-hour
ozone National Ambient Air Quality Standard, whichever is later.
* * * * *
7. Section 51.373 is proposed to be amended by removing and
reserving paragraph (e), by revising paragraphs (b), and (d), and by
adding a new paragraph (h), all to read as follows:
Sec. 51.373 Implementation deadlines.
* * * * *
(b) For areas newly required to implement basic I/M as a result of
designation under the 8-hour ozone standard, the required program shall
be fully implemented no later than 4 years after the effective date of
designation and classification under the 8-hour ozone standard.
* * * * *
(d) For areas newly required to implement enhanced I/M as a result
of designation under the 8-hour ozone standard, the required program
shall be fully implemented no later than 4 years after the effective
date of designation and classification under the 8-hour ozone standard.
* * * * *
(h) For areas newly required to implement either a basic or
enhanced I/M program as a result of being designated and classified
under the 8-hour ozone standard, such programs shall begin OBD testing
on subject OBD-equipped vehicles coincident with program start-up.
* * * * *
[FR Doc. 05-177 Filed 1-5-05; 8:45 am]
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