Minor Amendments to Inspection Maintenance Program Evaluation Requirements; Amendment to the Final Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[FRL-5945-8]

RIN 2060-AH61

Minor Amendments to Inspection Maintenance Program Evaluation

Requirements; Amendment to the Final Rule

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today's action revises 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 action is to allow

states additional flexibility to use not only IM240 but other approved

alternative methodologies for their program evaluation. Today's action

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 action 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.

Today's action 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. States wishing to take advantage of the flexibility

provided by today's action should review their implementation plans for

any language that conflicts

[[Page 1363]]

with today's amendments. Such language will need to be amended and the

amendment submitted as a SIP revision by November 30, 1998.

EFFECTIVE DATE: This rule will take effect on February 9, 1998.

ADDRESSES: Materials relevant to this rulemaking are contained in the

Public Docket No. A-97-46. 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. Electronic copies of the preamble and the

regulatory text of this rulemaking are available on the Office of

Mobile Sources' World Wide Web site, http://www.epa.gov/OMSWWW/.

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. E-mail

[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Summary of Rule

III. Authority

IV. Public Participation

A. Increased Flexibility

B. METT vs. ``Sound'' Evaluation Method

C. ``Sound'' vs. non-METT Evaluation Method

D. FTP Correlation

E. SIP Submission Deadlines

F. Need for New State Regulations

G. State Monitoring

V. Economic Costs and Benefits

VI. Administrative Requirements

A. Administrative Designation

B. Reporting and Recordkeeping Requirement

C. Regulatory Flexibility Act

D. Unfunded Mandates Act

E. Small Business Regulatory Enforcement Fairness Act

F. Petition for Judicial Review

II. Summary of Rule

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). With today's action, EPA is

amending this rule to provide greater flexibility to states in

conducting program evaluation. This action: 1) amends 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

only be performed by conducting mass emission transient testing (METT),

2) creates a new evaluation requirement at 40 CFR 51.353(c) that

instead requires 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) amends the requirement that the program

evaluation test be conducted ``at the time the 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) deletes 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) imposes a new condition on Pennsylvania's, Virginia's, and

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

revisions 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.

Prior to today's action, the I/M rule required 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. Today's action revises this

requirement to allow states the option of using an approved,

alternative, sound methodology for their program evaluation. This

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. EPA notes that

existing requirements for program start up as soon as possible remain

in place and are not effected in any way by today's program evaluation

amendments.

Today's 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 potential, practical benefits of

adopting a sound evaluation methodology that does not rely on METT.

Today's action, 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. In

addition to considering state proposals, EPA will also be conducting

formal reviews of several alternative evaluation methodologies

presented to it during a stakeholder's meeting held in Ann Arbor,

Michigan on August 11, 1997, details of which are discussed in the

``Public Participation'' section of this document. Today's action 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 action, 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

[[Page 1364]]

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 action

broadens the program evaluation requirement to include other sound

evaluation methodologies, it is also appropriate to withdraw these

METT-based program evaluation conditions on the interim approval

notices for Virginia and Pennsylvania. In place of these original

conditions, today's action imposes new conditions that will require the

commonwealths instead to submit SIP revisions that meet the more

flexible requirements of the amended 40 CFR 51.353(c). These new

conditions are based on new commitments submitted by the states to meet

the new evaluation requirements. 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 amendments. To allow the State

to take advantage of this deadline extension, it is necessary for EPA

to also amend the Federal Register document conditionally approving the

Delaware I/M SIP based upon a new state commitment to meet the new

program evaluation requirements. All three--Delaware, Virginia, and

Pennsylvania--must submit revised SIPs meeting the amended evaluation

methodology requirements by November 30, 1998 in order to meet the new

conditions imposed by today's action under section 110(k)(4) of the

Act.

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

required the Commonwealth to meet its METT-based program evaluation

condition before EPA could complete today's action. The original

published deadline for Virginia to meet its program evaluation

condition was September 15, 1997, which did not reflect the full twelve

month period available under the statute for meeting such conditions.

Therefore, in conjunction with the publication of the notice proposing

today's action, and based upon a commitment by the Commonwealth, EPA

took an interim final action to extend the deadline for Virginia's

existing program evaluation condition to May 15, 1998, which

represented the latest date available prior to finalization of today's

action. Today's action creates a new deadline of November 30, 1998, in

keeping with the time extension provided to other states by today's

action for compliance with the new evaluation requirements promulgated

today and consistent with Virginia's new commitment to meet the new

requirements by that date.

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

their currently approved I/M SIPs to take advantage of flexibilities

provided by today's action. EPA therefore suggests that such states

review their enhanced I/M SIPs for any language that may conflict with

today's amendments. Such language will need to be amended and the

amendment submitted as a SIP revision no later than November 30, 1998,

in order to take advantage of today's flexibility.

III. Authority

Authority for the rule change proposed in this document 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. Public Participation

Written comments on the September 19, 1997 proposal were received

from seven sources prior to the close of public comment period on

October 20, 1997: The Georgia, Missouri, and Wisconsin Departments of

Natural Resources; the Maryland Department of the Environment;

Pennsylvania's Department of Transportation and Department of

Environmental Protection (jointly); the Service Station Dealers of

America and Allied Trades; and the International Tire and Rubber

Association. The Missouri and Wisconsin Departments of Natural

Resources and the Maryland Department of the Environment opposed the

amendments, while the remainder of the commenters supported the

proposed amendments, in whole or in part.

In addition, the Texas Natural Resource Conservation Commision

(TNRCC) submitted comments one month after the close of public comment

period, in a letter dated November 20, 1997. While we will not be

addressing each of TNRCC's comments separately and specifically in this

rulemaking due to time constraints, EPA does acknowledge their receipt

and has included them in the docket for this rulemaking. In general,

TNRCC supported the proposed amendments and reiterated and/or

reinforced comments made by the other, above commmenters.

The main issues raised by the commenters are summarized and

addressed below.

A. Increased Flexibility

All the commenters supporting changes to the program evaluation

requirement as well as the other proposed amendments cited the greater

flexibility provided to states as the primary reason for their support.

Among these supporters, one stands out: Pennsylvania. Unlike the other

supporters, Pennsylvania augmented its support of the amendments with

numerous additional comments suggesting that even greater flexibility

is still needed. These additional comments will be addressed as

appropriate, below.

B. METT vs. ``Sound'' Evaluation Method

1. Summary of Proposal

The proposal removed the I/M rule's requirement that the program

evaluation testing be performed using either an IM240 or ``any other

transient, mass emission test procedure approved as equivalent,'' and

replaced it with the more flexible requirement that such testing be

conducted using an EPA-approved, ``sound evaluation methodology * * *

capable of providing accurate information about the overall

effectiveness of an I/M program.''

2. Summary of Comments

Commenters opposed to the proposed amendments focused on the test

type to be used for the program evaluation. These commenters generally

favored leaving the original requirement for IM240 or an equivalent

METT unchanged. Most of the opposing commenters cited EPA's original

reasons for choosing the IM240--its accuracy, its ability to reflect

real world driving conditions, its correlation to the Federal Test

Procedure (FTP), and its ability to measure actual mass emissions, as

opposed to percent concentrations--in support of retaining the

requirement. The opposing commenters also suggested that METT testing

was the only way to provide an objective and consistent criterion for

comparing the effectiveness of state programs, particularly given the

number and variety of untested program designs being implemented by the

states, post-NHSDA. One such commenter was also concerned that allowing

program evaluations based upon potentially less rigorous criteria could

unfairly penalize those states that opt for METT-based

[[Page 1365]]

program evaluations, by artificially overestimating the benefit of

decentralized, non-METT-based programs (and therefore underestimating

those areas' contribution to regional ozone transport problems).

3. Response to Comments

While EPA agrees that IM240 and equivalent METTs are a cost

effective, accurate, objective, and consistent method for evaluating

the program effectiveness of both METT and non-METT-based I/M programs,

suggesting that only a METT evaluation will suffice is premature. While

we can assure states that have opted to use IM240 as their day-to-day

inspection that the IM240 itself will continue as an approved program

evaluation test method (because it represents a sound evaluation

technique capable of providing accurate data on the effectiveness of I/

M programs), we cannot now rule out the possibility of acceptable METT

and non-METT alternatives to the IM240. EPA is in the process of

reviewing several alternative, non-IM240-based program evaluation

methodologies that were presented at a stakeholder's meeting held in

Ann Arbor on August 11, 1997 and at the 13th Annual Mobile Sources/

Clean Air Conference held September 16-19, 1997 in Steamboat Springs,

Colorado. While many of these methods are cheaper, easier-to-implement

variations on the METT concept that could be conducted with minimal

equipment retrofitting in an otherwise decentralized, non-METT setting,

at least one would allow states to use their existing, non-METT I/M

program data in the determination of program effectiveness.

Furthermore, while EPA's resources necessarily limit us in the number

of alternative methodologies we can evaluate, we remain open to

reviewing evaluations of additional methodologies conducted by the

states or other interested parties and submitted to EPA, including non-

METT alternatives. Lastly, while it is still too early to tell which of

these methods will be deemed approved alternatives, EPA is sensitive to

the need for both equity and accuracy in whatever candidate

methodologies are selected for approval. EPA will take special care to

insure that the benefits of non-METT programs are not overestimated as

a result of the selected evaluation methodologies.

C. ``Sound'' vs. non-METT Evaluation Method

1. Summary of Proposal

While the proposed amendment language discussed above removes the

explicit requirement that the program evaluation test be METT-based--

thereby opening the door to the possibility of non-METT-based

alternatives--the amendment does not jump to the conclusion that such

non-METT alternatives actually exist.

2. Summary of Comments

While Pennsylvania supported the spirit of the proposed amendments,

the Commonwealth argued that EPA fell short by failing to specify that

a non-METT program evaluation methodology would, in fact, be found and

adopted. The Commonwealth argued that the program evaluation test

should be the same test used for day-to-day testing (i.e., in the case

of Pennsylvania, the non-METT-based idle and ASM tests). To support

this claim, Pennsylvania cited the CAA's requirement that the biennial

program evaluation be ``based on data collected during the inspection

and repair of vehicles'' (emphasis added). Pennsylvania also quoted

Conference Report 105-297 accompanying H.R. 2158, in support of its

claim that Congress intended to bar EPA from mandating the use of IM240

for any purpose, including program evaluation. Furthermore, citing the

same conference report, Pennsylvania indicated its belief that EPA was

specifically directed by Congress to develop (not merely consider) a

non-METT program evaluation test. In particular, Pennsylvania objected

to the proposal's claim that it introduced ``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.'' Specifically, Pennsylvania claimed that it is ``EPA's

statutory obligation to develop a non-METT evaluation method; it is not

the states' obligation to 'make the case' for one.''

3. Response to Comments

As indicated in the previous response, EPA is still in the process

of evaluating several alternative program evaluation methods, at least

one of which would be consistent with Pennsylvania's request to use

routine test data as the basis for program evaluation. Also, the

intention of the ``make the case'' statement quoted by Pennsylvania was

not to shift the obligation for test review and evaluation to the

states. Rather, as previously stated, EPA's resources necessarily limit

us in the number of alternative methodologies we can evaluate, and

while a non-METT-based alternative is being considered by EPA, we

remain open to reviewing evaluations of additional methodologies

conducted by the states or other interested parties. Further, EPA does

not view comments in legislative history on unrelated legislation to

impose any new requirements on EPA with respect to I/M program

evaluations. The CAA gives EPA the flexibility to establish appropriate

program evaluation methodologies and EPA is properly exercising that

discretion. Under these amended requirements, EPA is no longer

requiring use of IM240 and has specifically opened the door so that

non-METT-based alternatives may be considered. Finally, EPA does not

believe that the CAA requirement to base program evaluation on data

collected during inspection places any limitation on the test type to

be used to conduct such evaluations. Whatever test is to be used, EPA

agrees it will be conducted at the time of initial testing as defined

in today's action.

D. FTP Correlation

1. Summary of Proposal

The proposal did not address the criteria by which candidate

alternative program evaluation methodologies would be judged, other

than specifying that the method would be ``sound'' and ``capable of

providing accurate information about the overall effectiveness of an I/

M program.''

2. Summary of Comments

Though correlation to the FTP was not stipulated as a criterion for

evaluating alternative program evaluation methodologies in the proposal

submitted for public comment, several commenters raised FTP correlation

as an issue. Those commenters opposed to the proposed amendments argued

for the retention of IM240 because of the high degree to which that

test correlates with the test used to certify new vehicles to the

applicable emission standards (i.e., the FTP). One of the opposing

commenters--Maryland--while not ruling out the possibility of valid

alternatives, specifically requested that any approved alternative

methods be ``no less rigorous or reliable than the IM240 METT.''

Pennsylvania, on the other hand, objected to using correlation to the

FTP as a criterion for determining the approvability of alternative

program evaluation methods. The Commonwealth also suggested that,

should EPA choose correlation to the FTP as the primary criterion for

establishing an alternative method's approvability, then it is EPA's

responsibility to make non-METTs like the ASM and idle test correlate

better to the FTP. This last comment was in

[[Page 1366]]

response to the Commonwealth's reference to previous EPA statements

regarding the very poor correlation to the FTP exhibited by non-METTs

like the ASM and idle tests.

3. Response to Comments

While EPA believes that a high degree of correlation to the FTP is

a reliable indicator of a test's ability to accurately measure real

world in-use vehicle emissions, we are not prepared to rule out the

possibility that other, surrogate measurements could provide equally

valid indicators of program effectiveness. EPA will explore other

potential measures in conjunction with development and analysis of

alternative evaluation techniques. Nevertheless, EPA disagrees with the

suggestion that should FTP correlation be found to be the only reliable

indicator of an evaluation method's acceptability that EPA therefore is

obligated to somehow improve the degree to which non-METTs correlate to

the FTP. While it is possible to increase correlation to the FTP by

starting with the same basic equipment used to perform a non-METT like

the ASM and either changing the test procedure and/or retrofitting the

equipment to gather variables like exhaust volume, the resultant test

is no longer an ASM by definition, but likely something approximating a

METT. Trying to change the correlation of a given test without

fundamentally changing the underlying nature of the test itself is a

logical impossibility. Furthermore, strategies such as tightening

cutpoints--which states have used historically to increase emission

reductions by increasing the failure rate for a chosen test--do not

improve a test's correlation to the FTP, which is based on actual

emission measurements and not relative failure rate.

E. SIP Submission Deadlines

1. Summary of Proposal

The proposal revised the conditional approvals for Pennsylvania,

Virginia, and Delaware to require the submission of SIP revisions

addressing the revised program evaluation requirements by November 30,

1998. The proposal also set the date by which program evaluation

testing is to begin for all enhanced I/M programs at no later than

November 30, 1998. The proposal did not address which alternative

program evaluation tests would be reviewed nor when guidance on

approved alternatives would be issued.

2. Summary of Comments

Both Maryland and Pennsylvania raised concerns regarding whether or

not EPA would be able to complete its review of alternative program

evaluation methodologies in time for states to meet the November 30,

1998 deadline. While Pennsylvania commented that it ``agrees that

states need to start vehicle testing for their program evaluation no

later than November 30, 1998,'' it also requested that states be given

until November 30, 2000 to submit revised SIPs. Pennsylvania also

requested that the requirement that the revised SIP include an

``approved'' program evaluation methodology be deleted, suggesting that

such a requirement would either circumvent the public notice-and-

comment rulemaking process SIP approvals are usually subjected to, or

require states to submit SIP revisions substantially earlier than

November 30, 1998 to allow EPA time to process and approve the

submission by the November 30, 1998 deadline.

3. Response to Comments

EPA has currently identified four alternative program evaluation

methodologies which will be the subject of further investigation in the

coming months. The methods to be reviewed are: 1) The V-MAS method, a

low cost method for measuring exhaust flow for the purpose of

converting concentration measurements into mass emissions measurements;

2) The California Analytical Bench method, a low cost analyzer bench

that uses the same type of analyzers as the IM240; 3) The Sierra

Research method, a method that relies on state I/M program data,

modeling data, and correlation to a base I/M program with a known

effectiveness level; and 4) The RSD method, which relies on remote

sensing (RSD) data. EPA projects the following schedule for its program

evaluation methodology review, including milestones already completed:

August 11, 1997--EPA hosted a stakeholder's meeting for states,

contractors, vendors, and all interested parties for the purpose of

seeking input regarding which alternative methods to investigate. This

milestone has been completed.

September 15, 1997--EPA selected the candidate methodologies for

further investigation. This milestone has also been completed.

May 31, 1998--The testing of candidate methodologies will be

completed.

October 15, 1998--EPA's analysis of the testing results will be

completed.

October 31, 1998--EPA will release a policy memo and guidance on

approved program evaluation methodologies.

While a review of the above schedule initially suggests that states

hoping to meet a November 30, 1998 deadline will have only one month in

which to prepare and submit their SIP revisions, such a conclusion

assumes that states can take no relevant action prior to the release of

official EPA guidance on alternative methods. In fact, many elements of

the necessary SIP revision are not test-dependent and can be addressed

well prior to finalization of EPA guidance. Furthermore, while final

guidance may not be released until October 31, 1998, the direction of

the investigation should be clear well before that deadline, and EPA

will keep all interested parties informed of our progress as the review

process moves forward. Also, it should be pointed out again that

today's action does not bind any state to change whatever course it may

have been on prior to the introduction of this additional flexibility.

States that choose to make use of this additional flexibility must

determine for themselves the feasibility of such a decision within the

context of their local needs and competing resource demands. EPA does

not see any reason to extend compliance beyond November 1998.

Concerning Pennsylvania's request that EPA delete the requirement

that the evaluation method included in the SIP revision be

``approved,'' EPA declines this request. Contrary to the Commonwealth's

expressed concern, ``approved'' as it is used in this context does not

mean that the SIP revision itself has to be somehow pre-approved prior

to submission (or prior to November 30, 1998). Rather, ``approved''

simply refers to the program evaluation test methodology included in

the submission. The approval of alternative program evaluation

methodologies is the goal of the investigation discussed earlier in

this response. The guidance scheduled for release no later than October

31, 1998 will indicate which methods are ``approved'' in this sense.

EPA wishes to retain the ``approved'' language in the rule merely to

indicate that states may not do I/M program evaluations with

methodologies that EPA has not found to be acceptable. EPA will still

complete notice-and-comment rulemaking on any SIP submission containing

program evaluation methodology revisions once it is submitted.

F. Need for New State Regulations

1. Summary of Proposal

The proposal revised the program evaluation conditions on the

Pennsylvania and Virginia conditional interim I/M SIP approvals to

require the submission of revised state I/M program

[[Page 1367]]

evaluation regulations by November 30, 1998, based upon commitments

from the commonwealths.

2. Summary of Comments

Pennsylvania commented that its existing state I/M program

evaluation regulations are sufficiently broad as to meet the new

general program evaluation requirements without further revision. The

Commonwealth also suggested that the specific details necessary as part

of a SIP revision to address implementation of the revised program

evaluation requirements would be provided by EPA guidance, implying

that perhaps no SIP revision would be required to implement them

(though this conclusion was not stated explicitly).

3. Response to Comments

EPA agrees that the Commonwealth's standing regulation, previously

approved into the Pennsylvania I/M SIP, is broad enough to meet the

revised general program evaluation requirements and has revised that

portion of today's action to reflect this. This said, EPA cautions

against jumping to the conclusion that the detail provided in future

EPA guidance will satisfy the detailed program description requirements

necessary for an approvable SIP revision addressing these requirements.

EPA guidance, by necessity, must be general and applicable to a wide

range of program possibilities. It will likely include options that

states will need to select from and tailor to their local needs. EPA

guidance will not be so limited and prescriptive as to obviate the need

for separate SIP submissions from the states to implement alternative

program evaluation methodologies. Thus, although Pennsylvania will

likely not need new regulations, EPA believes that it will need a new

SIP revision to address today's amended program evaluation

requirements.

G. State Monitoring

1. Summary of Proposal

The proposal requires that the sample of vehicles selected for

program evaluation testing receive a program evaluation test that is

either ``administered or monitored'' by the state. This requirement was

not introduced or revised as part of the proposed amendment, and has

been a part of I/M requirements since publication of the 1992 rule.

2. Summary of Comments

Pennsylvania objected to the requirement that the program

evaluation test be administered or monitored by the state, indicating

that it ``is not in the 'business' of emissions testing.'' In

particular, the Commonwealth objected to the notion of having to invest

in the purchase of any testing equipment whatsoever for the purpose of

evaluating program effectiveness. Instead, Pennsylvania indicated its

preference to ``monitor the program through computer programming and

software,'' with the possibility of random station visits at its

discretion. The Commonwealth concluded by suggesting that it would not

object to this requirement if it is subsequently determined that states

can, in fact, use their day-to-day I/M tests as the program evaluation

test.

3. Response to Comments

As explained elsewhere, EPA is still in the process of evaluating

possible program evaluation methodologies, at least one of which would

allow states to use their day-to-day I/M test as the program evaluation

test. Regardless of the conclusions of the program evaluation

investigation, however, EPA does not believe that removing the

requirement for state administration or monitoring of the program

evaluation test is justified. The requirement is intended to ensure

quality assurance and quality control of the subset of vehicle testing

data devoted to program evaluation. Given the small size of the sample

required (i.e., 0.1%) it is essential that the objectivity and quality

of the data under consideration not be questioned. EPA believes this

can only be accomplished by state operated or contracted program

evaluations. Thus, EPA believes the requirement that program evaluation

tests be administered or monitored by the state should remain no matter

what test type is selected.

V. Economic Costs and Benefits

Today's action provides states additional flexibility that lessens

rather than increases the potential economic 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 action.

VI. Administrative Requirements

A. Administrative Designation

It has been determined that this 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 do the amendments 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 action 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 action 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 this 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 areas with population

in excess of either 100,000 or 200,000 depending on location.

Furthermore, the impact created by this action does not increase the

pre-existing burden of the existing rule which this action amends.

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

[[Page 1368]]

finalized by this action would impose any mandate at all as defined in

Sec. 101 of the Unfunded Mandates Act upon the state, local, or tribal

governments, or the private sector, as explained above, this action 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 I/M rule

which this action amends.

E. Small Business Regulatory Enforcement Fairness Act

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. The rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

F. Petition for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by March 10, 1998.

Filing a petition for reconsideration by the Administrator of this

final rule to amend the program evaluation requirements of the I/M rule

does not affect the finality of this rule for the purpose of judicial

review, nor does it extend the time within which a petition for

judicial review may be filed, and shall not postpone the effectiveness

of such rule or action. This action may not be challenged later in

proceedings to enforce its requirements. (See section 307(b)(2) of the

Clean Air Act).

List of Subjects

40 CFR Part 51

Environmental protection, Administrative practice and procedure,

Air pollution control, Carbon monoxide, Transportation.

40 CFR Part 52

Air pollution control, Carbon monoxide.

Dated: December 29, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, parts 51 and 52 of title

40, chapter I of the Code of Federal Regulations is 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 paragraph (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 et seq.

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 plan

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 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 item in paragraph (b)(3)

of this section which addresses I/M program evaluation requirements.

Condition in paragraph (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. 98-551 Filed 1-8-98; 8:45 am]

BILLING CODE 6560-50-F