Inspection/Maintenance Ozone Transport Region Flexibility Amendments

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-5313-7]

Inspection/Maintenance Ozone Transport Region Flexibility

Amendments

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes revisions to the motor vehicle

Inspection/Maintenance (I/M) requirements by adding a special low

enhanced performance standard for qualified areas in Ozone Transport

Regions (OTR). EPA announced its intent to amend certain aspects of the

I/M Program Requirements in December 1994 and held stakeholders'

meetings on January 24, 1995 and January 31, 1995. A public hearing was

held on May 17, 1995. Many of the comments received during that

rulemaking came from OTR stakeholders who were concerned that the

proposed changes did not address metropolitan areas in the OTR that

were attainment, marginal, or moderate areas. Today's supplemental

action proposes to create an additional performance standard which

would apply to attainment, marginal and moderate areas in the OTR. The

fundamental goal is to allow those OTR qualifying areas the flexibility

to implement a broader range of I/M programs than is currently

permitted.

DATES: Written comments on this proposal must be received no later than

November 22, 1995. No public hearing will be held unless a request is

received in writing by October 30, 1995.

ADDRESSES: Interested parties may submit written comments (in duplicate

if possible) to Public Docket No. A-95-08. It is requested that a

duplicate copy be submitted to Eugene J. Tierney at the address in the

FOR FURTHER INFORMATION CONTACT section below. The docket is located at

the Air Docket, Room M-1500 (6102), Waterside Mall S.W., Washington, DC

20460. The docket may be inspected between 8:30 a.m. and 12 noon and

between 1:30 p.m. until 3:30 p.m. on weekdays. A reasonable fee may be

charged for copying docket material.

FOR FURTHER INFORMATION CONTACT: Eugene J. Tierney, Office of Mobile

Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth

Road, Ann Arbor, Michigan, 48105. Telephone (313) 668-4456.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Summary of Proposal

III. Authority

IV. Background of the Proposed Amendment

V. Discussion of Major Issues

A. Emission Impact of the Proposed Amendments

B. Impact on Existing and 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

II. Summary of Proposal

Under the Clean Air Act as amended in 1990 (the Act), 42 U.S.C.

7401 et seq., the U.S. Environmental Protection Agency (EPA) published

in the Federal Register on November 5, 1992 (40 CFR part 51, subpart S)

rules related to plans for Motor Vehicle Inspection and Maintenance (I/

M) programs (hereafter referred to as the I/M rule; see 57 FR 52950).

EPA is proposing today to further revise this rule to provide greater

flexibility to certain Ozone Transport Region (OTR) areas.

Section 182 of the Act is prescriptive regarding the various

elements that are required as part of an enhanced I/M performance

standard. It also provides states with flexibility in meeting the

numerical performance standards for enhanced or basic I/M programs.

States in the OTR have requested additional flexibility in implementing

I/M in areas

[[Page 54322]]

which are in attainment, which are areas designated and classified as

marginal ozone areas or which are designated and classified as moderate

ozone areas under 200,000 in population. These three types of areas

would be exempt from I/M requirements but for their location in the

Ozone Transport Region. These OTR areas are included in the Act to help

achieve overall attainment and maintenance goals for the region, which

includes serious, and severe ozone nonattainment areas.

EPA is today proposing to establish an additional enhanced I/M

performance standard for qualified areas in the Northeast OTR,

hereafter referred to as the OTR low enhanced performance standard. The

emission reduction targets for this program are less than both the low

enhanced performance standard and the basic performance standard. There

are two qualifications to be eligible for the OTR low enhanced

performance standard. First, the standard would apply only in

attainment areas, marginal ozone nonattainment areas and certain

moderate ozone nonattainment areas under 200,000 in an OTR. Moderate

areas of that size that were not previously required to, or had not in

fact implemented, a basic I/M program under the pre-1990 Act could take

advantage of the OTR low enhanced performance standard. Section

182(a)(2)(B)(i) requires areas that had or were required to have I/M

programs pre-1990 to retain programs of at least that stringency in

their SIPs. Because, as explained below, EPA believes the Act requires

an enhanced I/M program to be an enhancement over otherwise applicable

I/M requirements, areas subject to basic I/M could not adopt the less

stringent OTR low enhanced program. Any moderate area with urbanized

areas having a total population of over 200,000 would also be required

to implement basic I/M under section 182(b)(4) and would thus be

ineligible for the OTR low enhanced standard. Second, the OTR low-

enhanced program must be supplemented by other measures in order to

achieve the emission reductions that would have occurred had a regular

low-enhanced I/M program been implemented (as defined by Sec. 51.351(g)

of 40 CFR). This is because the primary goal of the Act in establishing

the OTR provisions and requiring enhanced I/M in areas with a

population of 100,000 or more in the OTR was to contribute to regional

attainment and EPA believes that an area should be able to qualify for

the additional flexibility provided under the OTR low enhanced standard

only if it achieves in some other way, the additional reductions that

the otherwise applicable low-enhanced I/M program would achieve. Thus,

the total emission reductions from the I/M program plus the additional

measures would have to equal the tonnage reduction that a regular low-

enhanced program would have generated. However, since local reductions

are not the crucial factor, a state may bubble surplus reductions from

other areas not required to implement I/M in the state. For example, a

state could implement a statewide reformulated gasoline (RFG) program

(note that EPA has recently asked for comment on whether attainment

areas can opt in to the reformulated gasoline program and a decision

has not yet been made on this issue) plus an OTR low enhanced program

in subject areas or statewide and potentially achieve comparable

reductions to a regular low enhanced program because of the additional

reductions RFG would achieve in areas not otherwise required to have

RFG. Equality of emission reductions must be demonstrated over a time

period which aligns with the attainment deadlines of all OTR areas:

from 2000 through 2007. Note that an I/M program that meets an OTR low

enhanced performance standard must be implemented even if other

measures could achieve comparable emission reductions because the Act

specifically requires an enhanced I/M program in metropolitan areas

with 100,000 population in the OTR. Measures to fill the gap between

OTR low and regular low enhanced I/M may not be otherwise required by

the Clean Air Act. EPA invites comment on whether and how a state may

use credits obtained through an Open Market Trading program to satisfy

the equal reduction requirement.

The OTR low enhanced performance standard model program is composed

of the following elements: annual testing of 1968 and newer light duty

vehicles and light duty trucks, OBD checks for 1996 and newer vehicles,

remote sensing of 1968-1995 vehicles, catalyst checks on 1975 and newer

vehicles, and PCV valve checks on pre-1975 vehicles. These elements

collectively satisfy the Act's requirements that the enhanced I/M

program performance standard include certain listed features.

The emission reduction targets generated by this model program

cannot be precisely modeled at this time but EPA estimates the targets

to be less than those for the basic I/M program standard (which are

approximately 6.3% for HC, 10.8% for CO, and 0.7% for NOX). As

soon as EPA completes development of guidance on remote sensing

credits, an analysis of the emission reduction targets generated by

this model program will be placed in the docket. In that the OTR low

enhanced standard is less than basic I/M, the question arises as to how

this standard meets the requirement of the Act for ``enhanced'' I/M.

There are two important facts to consider in this regard: first,

neither the Act nor the legislative history specifies that the emission

reduction targets for enhanced I/M must be greater than basic in all

cases. EPA believes the Act provides the agency latitude in

establishing multiple performance standards to meet a wide range of

state and local needs and conditions. Second, the areas eligible to

take advantage of this performance standard were not required to nor

did they implement I/M programs prior to 1990. So, in all cases, this

standard establishes a program target that is enhanced relative to what

was present or required for the area before enactment of the 1990

Amendment or is otherwise required after the 1990 Amendments.

As is the case with all performance standard model programs, EPA

does not necessarily recommend implementation of the model program,

since it is constrained in composition by law (e.g., EPA recommends not

testing cars until they reach 4 years of age and recommends biennial

testing as more cost-effective; by contrast, the enhanced I/M

performance standards are required by the Act to reflect a model

program that includes annual testing of all vehicles). In that the

emission reduction targets for this performance standard are below the

basic level, this standard provides the broadest possible latitude in

program design. For example, some states in the OTR have existing

decentralized, safety inspection programs. Comprehensive visual checks

of emission control devices, a gas cap pressure test, the Act-mandated

OBD check, and the Act-mandated on-road testing could be added to these

programs. Many other possibilities exist for program designs that could

meet this performance standard.

While the proposed OTC low enhanced performance standard is less

demanding than the existing performance standard applicable to the

affected areas, the proposed regulatory changes will ensure that

enhanced I/M programs in these areas meet statutory criteria for EPA

approval. A state's OTR low enhanced program is required, under

Sec. 182(c)(3)(C) of the Clean Air Act, to include computerized

analyzers and on-road testing devices; computerized equipment and on-

road testing devices are required by the

[[Page 54323]]

current rule and apply to the OTR low-enhanced program. A state's OTR

low-enhanced program shall also include a regulatory framework for

waivers, if waivers are to be issued, and an enforcement system through

registration denial; the proposed amendments leave requirements in this

regard the same as for other enhanced I/M areas. As mandated by the

Act, in an OTR low enhanced program, vehicle emissions shall be tested

annually unless biennial testing will equal or exceed the reductions

that can be obtained from annual inspections. A program could combine

biennial inspections on the vehicles equipped with OBD with biennial

evaporative system checks to achieve the necessary additional

reductions. The OTR low-enhanced program shall operate on a centralized

basis, unless an alternative program with decentralized inspections

meets the same performance standard. The performance standard itself is

based on centralized inspections of OBD-equipped vehicles and on-road

remote sensing testing; EPA believes that this meets the specific

requirement that the performance standard be based on centralized

testing.

Also, today's proposal would establish quality assurance

requirements for OTR low enhanced I/M programs that are commensurate

with the emission reductions the programs are intended to achieve. In

particular, current rules require enhanced I/M programs to be evaluated

by conducting test-only IM240s on a random representative sample of the

fleet (a minimum of 0.1%) to verify that the emission reductions are

occurring. EPA believes that the emission reductions from an OTR low

enhanced program are small enough that this level of effort is not

necessarily justified. Also, the routine quality assurance requirements

are also not necessarily appropriate in light of the low level of

benefits of the program.

EPA also proposes to modify the exclusion rule for counties within

MSAs in the Ozone Transport Region. The modification would allow states

to exclude counties that comprise less than 1% of the population of the

MSA. Inclusion of such a small fraction of the population is not worth

the significant cost of expanding geographic coverage of the program to

include such a county.

EPA proposes that the implementation date for full testing in areas

opting for the OTR low performance standard be no later than the latest

date, by which full testing can commence and still achieve sufficient

reductions to meet the performance standard by the Act's attainment and

reasonable further progress deadlines including the end of 1999

attainment date for serious ozone nonattainment areas. This will

generally mean a start date no later than January 1, 1999, for annual

testing programs, although EPA proposes to accept field testing

commencing as late as July 1, 1999 if the full I/M reductions can be

achieved by the serious areas attainment date. Note that the

performance standard model program assumes a start date of January 1,

1999 because EPA believes Congress intended that the performance

standard be based on at least one complete annual test cycle. With the

requirement to offset the emissions difference between OTR low and

regular low enhanced, this date ensures that attainment in the region

is not impaired.

EPA's proposal would also serve to provide other flexibilities to

non-OTR states in designing quality assurance programs. The intent is

to allow alternative quality assurance procedures that are as effective

or better than those specified in the rule.

III. Authority

Authority for the action proposed in this notice is granted to EPA

by section 182 of the Clean Air Act as amended (42 U.S.C. 7401, et

seq.).

IV. Background of the Proposed Amendments

The features of the enhanced I/M performance standard model program

are used to generate the minimum performance target that a state must

meet. When programmed into the most current version of EPA's mobile

source emission factor model (hereafter referred to as MOBILE5a), these

features produce a target emission factor (emissions per mile of

vehicle travel) which a state's proposed program must not exceed to be

deemed minimally acceptable for purposes of state implementation plan

(SIP) approval. This combination of features, however, does not

constitute either a required or recommended program design. The use of

the performance standard approach allows EPA to meet Congress's dual

statutory requirements that the EPA develop a performance standard

based on certain statutory features and that the standard provide

states with maximum flexibility to design I/M programs to meet local

needs.

EPA maintains that the Act in no way bars it from establishing more

than one enhanced I/M performance standard. EPA believes that precedent

exists for the adoption of multiple enhanced I/M performance standards,

tailored to the unique needs of certain areas, and points to the case

of El Paso, Texas, for which a separate, enhanced I/M performance

standard was created [57 FR 52989, Sec. 51.351 (e)]

V. Discussion of Major Issues

A. Emission Impact of the Proposed Amendments

EPA is still in the process of evaluating the emission impact of

the OTR enhanced I/M performance standard. The evaluation process is

based on a number of inputs, including credits awarded for RSD, and is

modeled using MOBILE5a and national average values for vehicle age mix,

mileage accumulation, and other area and fleet related variables. Once

EPA finalizes RSD credits, an analysis of the emission reduction

targets generated by this model program will be placed in the docket.

The emission impact of the OTR enhanced performance standard is

expected to be neutral since the proposed change would not reduce the

total emission reductions that states must achieve. The scope of this

change is also limited to attainment areas, marginal ozone areas, and

certain moderate ozone areas below 200,000 population in the Ozone

Transport Region.

B. Impact on Existing and Future I/M Programs

Only states that choose to utilize the proposed OTR performance

standard will be affected by today's proposal. Modifications to a

state's I/M program as a result of this rule change may require a SIP

revision, if a plan has already been submitted. Each case is likely to

be different, depending upon the magnitude of the change. It is

important to note that today's proposal in no way increases the

existing burden on states. States that currently comply, or are in the

process of complying, with the existing I/M rule would only be affected

by today's rule revisions if they so choose. Today's proposed

amendments represent opportunities for those states that can meet the

criteria set forth in today's proposal; under no circumstances are

these proposed opportunities to be construed as mandatory obligations.

VI. Economic Costs and Benefits

Today's proposed revisions provide states additional flexibility

that lessens rather than increases the potential burden on states.

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.

[[Page 54324]]

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. A-95-08.

VIII. Administrative Requirements

A. Administrative Designation

It has been determined that this proposed amendment to the I/M rule

is not a significant regulatory action under the terms of Executive

Order 12866 and are therefore not subject to OMB review. Any impacts

associated with these revisions do not constitute additional burdens

when compared to the existing I/M requirements published in the Federal

Register on November 5, 1992 (57 FR 52950) as amended. Nor does the

proposed amendment create an annual effect on the economy of $100

million or more or otherwise adversely affect the economy or the

environment. It is not inconsistent with nor does it interfere with

actions by other agencies. It does not alter budgetary impacts of

entitlements or other programs, and it does not raise any new or

unusual legal or policy issues.

B. Reporting and Recordkeeping Requirement

There are no information requirements in this supplemental proposed

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. A small government jurisdiction is

defined as ``governments of cities, counties, towns, townships,

villages, school districts, or special districts, with a population of

less than 50,000.'' 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.'' Furthermore, the

impact created by the proposed action does not increase the pre-

existing burden which this proposal seeks to amend.

D. Unfunded Mandates Act

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 where the estimated costs to State, local, or tribal

governments, or to the private sector, will be $100 million or more.

Under Section 205, EPA must select the most cost-effective and least

burdensome alternative that achieves the objective 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 impacted by the rule.

To the extent that the rules being proposed by this action would

impose any mandate at all as defined in Section 101 of the Unfunded

Mandates Act upon the state, local, or tribal governments, or the

private sector, as explained above, this proposed rule is not estimated

to impose costs in excess of $100 million. Therefore, EPA has not

prepared a statement with respect to budgetary impacts. As noted above,

this rule offers opportunities to states that would enable them to

lower economic burdens from those resulting from the currently existing

I/M rule.

List of Subjects in 40 CFR Part 51

Environmental protection, Administrative practice and procedure,

Air pollution control, Carbon monoxide, Transportation.

Dated: October 3, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, part 51 of title 40 of the

Code of Federal Regulations is proposed to be amended to read as

follows:

PART 51--[AMENDED]

1. The authority citation for Part 51 continues to read as follows:

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

2. Section 51.350 is amended by revising paragraphs (b)(1) and

adding (b)(5) to read as follows:

Sec. 51.350 Applicability.

* * * * *

(b) Extent of area coverage. (1) In an ozone transport region, the

program shall cover all counties within subject MSAs or subject

portions of MSAs, as defined by OMB in 1990, except largely rural

counties having a population density of less than 200 persons per

square mile based on the 1990 Census and counties with less than 1% of

the population in the MSA may be excluded provided that at least 50% of

the MSA population is included in the program. This provision does not

preclude the voluntary inclusion of portions of an excluded county.

Non-urbanized islands not connected to the mainland by roads, bridges,

or tunnels may be excluded without regard to population.

* * * * *

(5) Notwithstanding the limitation in paragraph (b)(3) of this

section, in an ozone transport region, states which opt for a program

which only meets the performance standard described in Sec. 51.351(h)

of this part, may apply a geographic bubble covering areas in the state

not otherwise subject to an I/M requirement to achieve emission

reductions from other measures equal to or greater than what would have

been achieved if the low enhanced performance standard were met in the

subject I/M areas. Emissions reductions from non-I/M measures shall not

be counted towards the OTR low enhanced performance standard.

* * * * *

3. Section 51.351 is amended by adding paragraph (h) to read as

follows:

Sec. 51.351 Enhanced I/M performance standards.

* * * * *

(h) Ozone Transport Region Low-Enhanced Performance Standard. An

attainment area, marginal ozone area, or moderate ozone area with a

1980 Census population of less than 200,000 in the urbanized area, in

an ozone transport region, that is required to implement enhanced I/M

under section 184(b)(1)(A) of the Clean Air Act, but was not previously

required to or did not in fact implement basic I/M under the Clean Air

Act as enacted prior to 1990 and is not subject to the requirements for

basic I/M programs in this subpart, may select the performance standard

described below in lieu of the standard described in paragraph (f) or

(g) of this section as long as the difference in emission reductions

between the program described in paragraph (g) and this paragraph are

made up with other measures, as provided in Sec. 51.350(b)(5).

Offsetting measures shall not include those otherwise required by the

Clean Air Act in the areas from which credit is bubbled. The program

elements for this

[[Page 54325]]

alternate OTR enhanced I/M performance standard are:

(1) Network type. Centralized testing.

(2) Start date. January 1, 1999.

(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) Exhaust emission test type. Remote sensing measurements on

1968-1995 vehicles; on-board diagnostic system checks on 1996 and newer

vehicles.

(7) Emission standards. For remote sensing measurements, a carbon

monoxide standard of 7.5% (with at least two separate readings above

this level to establish a failure).

(8) Emission control device inspections. Visual inspection of the

catalytic converter on 1975 and newer vehicles and visual inspection of

the positive crankcase ventilation valve on 1968-1974 vehicles.

(9) Waiver rate. A 3% waiver rate, as a percentage of failed

vehicles.

(10) Compliance rate. A 96% compliance rate.

(11) Evaluation dates. Enhanced I/M program areas subject to the

provisions of this paragraph shall be shown to obtain the same or lower

VOC and NOX emission levels as the model program described in this

paragraph by January 1, 2000, 2003, 2006, and 2007. Equality of

substituted emission reductions to the benefits of the low enhanced

performance standard must be demonstrated for the same evaluation

dates.

4. Section 51.353 is amended by adding paragraph (c)(5) to read as

follows:

Sec. 51.353 Network type and program evaluation.

* * * * *

(c) * * *

(5) Areas that qualify for and choose to implement an OTR low

enhanced I/M program, as established in Sec. 51.351(h), that achieves

less emission reduction credit than the basic performance standard for

one or more pollutants are exempt from the requirements of paragraphs

(c)(1) through (c)(4) of this section. The reports required under

Sec. 51.366 of this part shall be sufficient in these areas to satisfy

the requirements of Clean Air Act for program reporting.

* * * * *

5. Section 51.364 is amended by adding paragraphs (e) and (f) to

read as follows:

Sec. 51.364 Enforcement against contractors, stations and inspectors.

* * * * *

(e) Alternative quality assurance procedures or frequencies that

achieve equivalent or better results may be approved by the

Administrator. Statistical process control shall be used whenever

possible to demonstrate the efficacy of alternatives.

(f) Areas that qualify for and choose to implement an OTR low

enhanced I/M program, as established in Sec. 51.351(h) of this part,

that achieves less emission reduction credit than the basic performance

standard for one or more pollutants are not required to meet the

oversight specifications of this section.

6. Section 51.373 is amended by adding paragraph (f) to read as

follows:

Sec. 51.373 Implementation deadlines.

* * * * *

(f) Areas that choose to implement an enhanced I/M program only

meeting the requirements of Sec. 51.351(h) of this subpart shall fully

implement the program no later than July 1, 1999. The availability and

use of this late start date does not relieve the area of the obligation

to meet the requirements of Sec. 51.351(h)(11).

[FR Doc. 95-26202 Filed 10-20-95; 8:45 am]

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