Minor Amendments to Inspection Maintenance Program Evaluation Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[FRL-5889-1]

Minor Amendments to Inspection Maintenance Program Evaluation

Requirements

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 replacing the I/M rule

requirement that the tailpipe portion of the mandatory program

evaluation be performed using only an IM240 or equivalent mass-emission

transient test with a requirement that states use a sound evaluation

methodology capable of providing accurate information about the overall

effectiveness of an I/M program. The goal of this proposed rule change

is to allow states additional flexibility to use not only IM240 but

other approved alternative methodologies for their program evaluation.

This proposal also clarifies that such program evaluation testing shall

begin no later than November 30, 1998, and is not required to be

coincident with program start up (though the first report is still due

two years after program start up). This proposal also clarifies that

``initial test'' simply means that the test is conducted before repairs

for each test cycle, and does not therefore preclude states from using

alternative sampling methodologies such as roadside pullover to sample

the fleet.

This proposal also amends the conditions relating to the program

evaluation testing requirements that were part of the conditional

interim approval actions taken on the I/M State Implementation Plans

(SIPs) for the Commonwealths of Pennsylvania and Virginia and the State

of Delaware. Lastly, through this document, EPA requests that other

states that would like to take advantage of the flexibility proposed

today review their

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implementation plans for any language that conflicts with these

proposed changes. Such language will need to be amended and the

amendment submitted as a SIP revision once today's proposed action

becomes final.

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

October 20, 1997. No public hearing will be held unless a request is

received in writing by October 6, 1997.

ADDRESSESS: Interested parties may submit written comments (in

duplicate if possible) to Public Docket No. A-97-46. It is requested

that a duplicate copy be submitted to Tracey Bradish 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 SW.,

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: Tracey Bradish, Office of Mobile

Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth

Road, Ann Arbor, Michigan 48105. Telephone (313) 668-4239.

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) a rule related to state air quality implementation 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 states in conducting

program evaluation. This proposed rulemaking proposes to: (1) Amend the

I/M program evaluation requirements at 40 CFR 51.353(c) to remove the

current requirement that the tailpipe portion of the program evaluation

can be performed only by conducting mass emission transient testing

(METT), (2) create a new evaluation requirement at 40 CFR 51.353(c)

that will instead require states to conduct program evaluation testing

using a sound evaluation methodology capable of providing accurate

information about I/M program effectiveness, such evaluation to begin

no later than November 30, 1998, (3) amend the requirement that the

program evaluation tests be conducted ``at the time initial test is

due'' to clarify that states are not barred from using alternative

sample gathering methods like roadside pullovers by defining ``the time

of initial test'' as any time prior to repairs during the inspection

cycle under consideration, (4) delete the current conditions on

Pennsylvania's and Virginia's conditional interim I/M approvals and

Delaware's conditional approval (40 CFR part 52, subpart NN,

Sec. 52.2026(a)(2), 40 CFR part 52, subpart V, Sec. 52.2450(b)(2), and

40 CFR part 52, subpart I, Sec. 52.424(b), respectively) that require

submission of program evaluation regulations under the existing I/M

rule, and (5) impose a new condition on Pennsylvania's, Virginia's, and

Delaware's I/M approvals that will require them to submit I/M

regulations which include a requirement to perform a program evaluation

using a sound evaluation methodology meeting the amended requirements

of 40 CFR 51.353(c) by November 30, 1998, if commitments are submitted

by October 15, 1997 to submit such regulations within such time frame.

The I/M rule currently requires states to test at least 0.1 percent

of the vehicles subject to inspection in a given year using a state

administered or monitored IM240 or an EPA approved equivalent METT

evaluation methodology. This proposed action revises the current rule

to allow states the option of using an approved, alternative, sound

methodology for their program evaluation. This proposed action also

clarifies that states are to start vehicle testing for their program

evaluation no later than November 30, 1998, and are not required to do

so coincident with program start up.

Today's proposed action is in response to the many changes that

have occurred in the field of I/M since the original rule was

promulgated in November 1992. Program designs and test types not

originally envisioned in 1992 are now becoming the options of choice

among many states required to implement enhanced I/M programs. For

example, non-METTs like the Acceleration Simulation Mode (ASM) test

have been adopted by several enhanced I/M states that were originally

expected to choose the METT-based IM240. These states have subsequently

voiced the concern that requiring a METT like the IM240 for the purpose

of evaluating a program using a non-METT as its day-to-day test poses

certain practical implementation difficulties not experienced in

programs that have opted to use a METT as the day-to-day test. While

these problems are not insurmountable, EPA acknowledges the practical

benefits of developing a sound evaluation methodology that does not

rely on METT. Today's proposal, therefore, introduces the flexibility

needed to allow states who choose to do so to make the case for

alternative evaluation methodologies, including those centered on non-

METT-based testing. Today's proposed amendments will also better

accommodate new advances in analytical methodologies, given the speed

at which new technology in this field has been shown to evolve and

mature.

To ensure that all states have an equal opportunity to take

advantage of the flexibilities created by today's proposed amendments,

it is necessary that EPA also amend certain I/M SIP approval actions

previously published in the Federal Register in response to the

National Highway System Designation Act of 1995 (NHSDA), as well as

those published in response to EPA's own I/M flexibility amendments of

September 18, 1995 and July 25, 1996. The NHSDA and I/M amendments

introduced additional flexibility with regard to I/M program design,

and states that opted to take advantage of this flexibility were

required to submit new SIPs. In review of these revised I/M SIPs, EPA

found that many failed to fully address one aspect or another of the I/

M rule, leading the Agency to propose either conditional interim

approvals (in the case of NHSDA-triggered revisions) or conditional

approvals in the remaining cases. For example, the Commonwealths of

Pennsylvania and Virginia failed to fully address the I/M rule's

program evaluation requirements for conducting the IM240 or an

equivalent, approved METT on 0.1 percent of their in-use fleet. In

response to this omission, EPA originally placed conditions on the

Virginia and Pennsylvania interim approval actions, based on

commitments made by the Commonwealths, requiring them to adopt the

regulations needed to meet the METT-based program evaluation

requirement. Since today's proposed amendments broaden the program

evaluation requirement to include other

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sound evaluation methodologies, it is also appropriate to propose

withdrawing these METT-based program evaluation conditions on the

interim approval notices for Virginia and Pennsylvania. In place of

these original conditions, EPA proposes to impose new conditions that

will require the commonwealths instead to submit program evaluation

regulations that meet the more flexible requirements of the amended 40

CFR 51.353(c). In the case of Delaware, while the program evaluation

condition did not explicitly require METT-based program evaluation, the

deadline for meeting that condition falls sooner than it would based

upon today's proposed amendments. To take advantage of this deadline

extension, it is necessary for EPA to also amend the Federal Register

notice conditionally approving the Delaware I/M SIP. All three--

Delaware, Virginia, and Pennsylvania--must submit a commitment by

October 15, 1997, to adopt and submit the required evaluation

methodology requirements by November 30, 1998 in order to support EPA's

imposition of the new proposed conditions under section 110(k)(4) of

the Act.

Of the three above SIP approval notices, only Virginia's requires

the Commonwealth to meet its METT-based program evaluation condition

before EPA will be able to finalize today's proposed action. The

current deadline for Virginia's meeting this condition is September 15,

1997, which is based upon a commitment made by the Commonwealth prior

to EPA's decision to revise the program evaluation requirement. The

September 15, 1997 date does not reflect the full twelve month period

available under the statute for meeting conditions which, in the case

of Virginia, would be May 15, 1998. Virginia has recently committed to

submit program evaluation provisions meeting the existing I/M rule by

May 15, 1998 should EPA fail to take final action on today's proposal.

For these reasons, EPA is taking an interim final action elsewhere in

this Federal Register to extend the deadline for Virginia's existing

program evaluation condition to May 15, 1998. EPA believes it is

appropriate to take such action without prior public notice and comment

because it would be contrary to the public interest to require Virginia

to comply with a condition based on a requirement that EPA has proposed

to amend, and because Virginia's recent commitment is consistent with

the statute.

Lastly, it may be necessary for some states to amend their

currently approved I/M SIPs to take advantage of today's proposed

flexibilities. EPA therefore requests that such states review their

enhanced I/M SIPs for any language that may conflict with today's

proposed changes. Such language will need to be amended and the

amendment submitted as a SIP revision once today's proposed action

becomes final.

III. Authority

Authority for the rule change 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.). Authority to conditionally approve a SIP based on a state's

commitment to revise the SIP by a date certain within one year is

provided by section 110(k)(4) of the Act.

IV. Background of the Proposed Amendments

Section 182(c)(3)(C) of the 1990 Clean Air Act required that

enhanced I/M programs ``biennially prepare a report to the

Administrator which assesses the emission reductions achieved by the

program * * * based on data collected during inspection and repair of

vehicles. The methods used to assess the emission reductions shall be

those established by the Administrator.'' EPA established the criteria

for this program evaluation under section 51.353(c) of the original I/M

rule (November 5, 1992).

As originally promulgated, the program evaluation was to include

state administered or monitored program evaluation tests on a random,

representative sample of at least 0.1 percent of the annual subject

vehicle population. The program evaluation tests included measuring the

gram-per-mile tailpipe emissions of this sample using the IM240.

Alternative, equivalent METTs were allowed in place of the IM240, but

these had to be approved by EPA. The results of the program evaluation

testing were to be reported every two years, beginning with the second

anniversary of program start up.

The IM240 was originally selected as the basis for program

evaluation because of its high degree of correlation to the Federal

Test Procedure (FTP), the one test method that all vehicles have in

common due to its use in the vehicle certification process. Both the

FTP and the IM240 are METTs, which means that they measure the actual

mass of emissions produced by a vehicle (in terms of grams per mile) as

opposed to simply measuring the concentrations of those emissions.

METTs like the IM240 and FTP also simulate real world driving

conditions by testing the vehicle over the course of a driving cycle

covering a wide range of speeds and operating conditions. This is

especially important in determining a vehicle's precise emissions

output, since most on-road vehicles emit different amounts depending

upon their operating conditions.

Of these two METTs, the IM240 was deemed to be the most cost

effective for use as a program evaluation method. Furthermore, at the

time the I/M rule was promulgated in 1992, it was anticipated that most

programs subject to the enhanced I/M requirement would opt to use IM240

as part of their routine testing program. Therefore, requiring

additional, state administered or monitored IM240s to confirm the

overall program's effectiveness did not require states to invest in

additional, program evaluation testing equipment and did not call for

the development of an alternative program evaluation testing

methodology.

On November 28, 1995, President Clinton signed the National Highway

System Designation Act of 1995 (NHSDA). Section 348 of this legislation

addressed I/M program requirements, and specifically prohibited EPA

from mandating the ``adoption or implementation by a State of a test-

only IM240 enhanced vehicle inspection and maintenance program as a

means of compliance with'' the Clean Air Act. Nevertheless, EPA has

determined that additional flexibility is desirable in the program

evaluation area as well, to better accommodate the wider range of

enhanced I/M program designs states are in the process of adopting and

implementing under both the NHSDA and EPA's previous I/M flexibility

amendments, and which were not anticipated at the time the original

program evaluation criteria were promulgated. Furthermore, EPA now

believes that alternative, sound methods for meeting the Clean Air

Act's program evaluation requirement may exist, and the Agency intends

to work with states and other interested parties during the proposed

period of delay in evaluation requirements to identify and approve

these alternatives.

EPA is therefore proposing to provide greater flexibility in two

specific areas with regard to these criteria. The first is to broaden

the universe of potentially acceptable program evaluation tests by

changing the requirement from the IM240 or an approved, equivalent METT

to the less prescriptive, and more innovation-friendly requirement for

a ``sound evaluation methodology.'' Second, to give EPA and the states

time to evaluate potential alternative methodologies, EPA is proposing

to delay the start up of the mandatory evaluation program to no later

than

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November 30, 1998. EPA believes that postponing this requirement is a

logical extension of the deadline deferment otherwise provided for or

implicit in the flexibilities provided by the NHSDA and EPA's own I/M

flexibility amendments.

V. Discussion of Major Issues

A. Emission Impact of the Proposed Amendments

The program effectiveness evaluation does not itself produce

emission reductions. Rather, the program evaluation is intended to

confirm that emission reductions projected by modeling and claimed in

the states' implementation plans have been achieved in actual practice.

This evaluation assesses the effectiveness of the entire program, not

just the test type being used. Should a shortfall be discovered between

the credit claimed and the reductions actually achieved, the program

evaluation is also used to define the extent of that shortfall.

Therefore, the program evaluation measurement methodology has an impact

on a state's ability to determine whether or not additional reductions

are needed to achieve its clean air goals within the prescribed time

frame. The evaluation may also demonstrate that a program is exceeding

its reduction goals and therefore deserves additional credit.

It is important to note that the Clean Air Act does not mandate the

method to be used in evaluating program effectiveness. Instead, the

responsibility for determining and approving the program evaluation

methodology is delegated to the Administrator. Some states have already

adopted or have indicated an intention to adopt the IM240 or some

other, as-yet unapproved, equivalent mass-emission transient test for

the purpose of performing the required program evaluation. Today's

proposed action does not retract the Administrator's previous approval

of the IM240, and it does not compel states that have chosen to use an

approved METT as their program evaluation method to change to another,

as-yet-undefined method. EPA believes that the IM240 and potentially

other equivalent METTs provide a sound methodology for program

evaluation.

Furthermore, today's proposed action is not intended to eliminate

the need for states to perform the program evaluation required by the

Act; it does not change the fact that such evaluation must be based

upon actual data as opposed to modeled projections. It also does not

change the fact that EPA must approve the program evaluation

methodology selected for any state program, as a SIP revision. Instead,

today's proposed action is intended to broaden the range of potentially

acceptable evaluation methods and delay the time for their

implementation; it will also serve as an incentive for innovation in

the development of such methods.

Lastly, while today's proposed action will have the effect of

delaying when the program effectiveness evaluation begins, it does not

change when the first program evaluation report is due, which remains

two years after the initial start date of mandatory testing. Thus, the

first report will be based on only one year of data. Given this and the

above, EPA concludes that today's proposed action will have no net

impact on emission reductions.

B. Impact on Existing and Future I/M Programs

Only states that choose to utilize the additional flexibilities

discussed in this notice will be affected by today's proposal to change

the I/M rule. Modifications to a state's I/M program as a result of

this rule change may require a SIP revision. 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 will only be affected by today's

rule revisions if they so choose. Today's proposed amendments represent

options for those states that choose to take advantage of the

flexibilities proposed in today's notice.

The specific changes of the program evaluation based conditions on

Virginia, Pennsylvania, and Delaware also do not present an additional

burden on those states. None is compelled to pursue the opportunities

for flexibility that will be created by finalization of the proposed

changes to their conditional approvals. Should any of the three states

choose not to submit a new commitment consistent with the amended rule,

EPA will retain in place the current condition for such state based on

the existing state commitment, even while proceeding to change the I/M

rule.

VI. Economic Costs and Benefits

Today's proposed revisions provide states additional flexibility

that lessens rather than increases the potential economic burden on

states choosing to take advantage of this regulation. 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. A-97-46.

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 is 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. 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 enhanced I/M requirements only apply to urbanized

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areas with population in excess of either 100,000 or 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 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 Sec. 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: September 2, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I 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 51.353 is amended by revising paragraphs (c)(3) and

(c)(4) to read as follows:

Sec. 51.353 Network type and program evaluation.

* * * * *

(c) * * *

(3) The evaluation program shall consist, at a minimum, of those

items described in paragraph (b)(1) of this section and program

evaluation data using a sound evaluation methodology, as approved by

EPA, and evaporative system checks, specified in Sec. 51.357(a) (9) and

(10) of this subpart, for model years subject to those evaporative

system test procedures. The test data shall be obtained from a

representative, random sample, taken at the time of initial inspection

(before repair) on a minimum of 0.1 percent of the vehicles subject to

inspection in a given year. Such vehicles shall receive a state

administered or monitored test, as specified in this paragraph (c)(3),

prior to the performance of I/M-triggered repairs during the inspection

cycle under consideration.

(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

November 30, 1998.

* * * * *

PART 52--[AMENDED]

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

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

2. Section 52.2026 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 52.2026 Conditional approval.

* * * * *

(a) * * *

(2) The Commonwealth must submit to EPA as a SIP amendment, by

November 30, 1998, the final Pennsylvania I/M program evaluation

regulation requiring an approved alternative sound evaluation

methodology to be performed on a minimum of 0.1 percent of the subject

fleet each year as per 40 CFR 51.353(c)(3) and which meets the program

evaluation elements as specified in 40 CFR 51.353(c).

* * * * *

3. Section 52.2450 is amended by revising paragraph (b)(2) to read

as follows:

Sec. 52.2450 Conditional approval.

* * * * *

(b) * * *

(2) The Commonwealth must submit to EPA as a SIP amendment, by

November 30, 1998, the final Virginia I/M program evaluation regulation

requiring an approved alternative sound evaluation methodology to be

performed on a minimum of 0.1 percent of the subject fleet each year as

per 40 CFR Sec. 51.353(c)(3) and which meets the program evaluation

elements as specified in 40 CFR 51.353(c).

4. Section 52.424 is amended by revising paragraph (b) introductory

text to read as follows:

Sec. 52.424 Conditional approval.

* * * * *

(b) The State of Delaware's February 17, 1995 submittal for an

enhanced motor vehicle inspection and maintenance (I/M) program, and

the November 30, 1995 submittal of the performance standard evaluation

of the low enhanced program, is conditionally approved based on certain

contingencies.

The following conditions must be addressed in a revised SIP

submission. Along with the conditions listed is a separate detailed I/M

checklist explaining what is required to fully remedy the deficiencies

found in the proposed notice of conditional approval. This checklist is

found in the Technical Support Document (TSD), located in the docket of

this rulemaking, that was prepared in support of the proposed

conditional I/M rulemaking for Delaware. This checklist and Technical

Support Document are available at the Air, Radiation, and Toxics

Division, 841 Chestnut Bldg., Philadelphia, PA 19107, telephone (215)

566-2183. By no later than one year from June 18, 1997, Delaware must

submit a revised SIP that meets the following conditions for

approvability, with the exception of condition in paragraph (b)(3) of

this section which addresses I/M program evaluation requirements.

Condition in pargraph (b)(3) of this section must be met by November

30, 1998, in keeping with the amended requirements of 40 CFR 51.353.

* * * * *

[FR Doc. 97-24947 Filed 9-18-97; 8:45 am]

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