Additional Flexibility Amendments to Vehicle Inspection Maintenance Program Requirements; Proposed Amendment to the Final Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-6421-1]

Additional Flexibility Amendments to Vehicle Inspection

Maintenance Program Requirements; Proposed Amendment to the Final Rule

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes several substantive and minor revisions

to the Motor Vehicle Inspection/Maintenance (I/M) requirements to

provide additional flexibility to state I/M programs, both in response

to the I/M provisions of the National Highway System Designation Act of

1995 (NHSDA), and in compliance with the Clean Air Act requirement that

EPA's guidance for such programs be ``from time to time revised.'' The

proposed amendments would: modify the current I/M performance standard

modeling requirements to reflect delays caused by the NHSDA, and to

provide states greater flexibility in how they meet the performance

standard; also in response to the NHSDA, remove the I/M rule provision

establishing the decentralized, test-and-repair credit discount; revise

certain test procedure, standard, and equipment requirements to better

accommodate alternative test types and program designs. This revision

also entails changing the data collection, analysis, and reporting

requirements to make them consistent with various alternative test and

program types; as well as minor revisions to the inspector training

requirements; revise the requirements for consumer protection and

improving repair effectiveness to limit the current requirement to

provide diagnostic information to those programs and test types capable

of producing such information, reliably and practically; expand the

options for complying with the on-road testing requirement to

accommodate more recent variations, such as clean screening and non-

tailpipe based, roadside tests.

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

September 20, 1999. No public hearing will be held unless a request is

received in writing by September 7, 1999.

ADDRESSES: Interested parties may submit written comments (in duplicate

if possible) to Public Docket No. A-99-19. It is requested that a

duplicate copy be submitted to David Sosnowski 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: David Sosnowski, Office of Mobile

Sources, Regional and State Programs Division, 2000 Traverwood, Ann

Arbor, Michigan, 48105. Telephone (734) 214-4823.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Summary of Proposal

III. Authority

IV. Background of the Proposed Amendments

A. Performance Standard Amendments

B. Network Requirement Amendments

C. Test Procedure and Related Amendments

D. Consumer Protection and Repair Effectiveness Amendments

E. On-Road Testing Amendments

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

E. Executive Order 12875: Enhancing the Intergovernmental

Partnership

[[Page 45492]]

F. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

G. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks

H. National Technology Transfer and Advancement Act

II. Summary of Proposal

Under the Clean Air Act as amended in 1990 (CAA), 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

amend this rule to provide greater flexibility to states to tailor

their I/M programs to better meet local needs, both now and in the

future. With today's notice EPA proposes to: (1) Amend the enhanced I/M

performance standard requirements at 40 CFR 51.351 to change the

performance standard modeling requirement from demonstrating that the

performance standard is met on 2000 and each subsequent milestone

(through to and including the attainment deadline) to a requirement

that the performance standard be met (within +/- 0.02 grams-per-mile)

on 2002, and that the same or better level of emission reduction be

demonstrated for the attainment deadline, rounded to the nearest year;

(2) in response to the National Highway System Designation Act of 1995

(NHSDA) and to provide greater flexibility to the states with regard to

network design options: (a) Delete 40 CFR 51.353(b) which previously

established the decentralized, test-and-repair credit discount, and (b)

revise the definition of test-only at 40 CFR 51.353(a) to allow test-

only stations to sell self-serve gasoline, pre-packaged oil, and any

other items that are not directly related to automotive parts sales

and/or service; (3) to better accommodate alternative test types and

program designs: (a) Revise the test procedures and standards

requirements at 40 CFR 51.357 to clarify that tailpipe exhaust testing

is not a universal requirement for all I/M programs, that alternatives

to the IM240 drive cycle are allowed under the requirements for

transient testing, and that the standard for an acceptable alternative

test is comparability, not necessarily equivalence, (b) revise the test

equipment requirements at 40 CFR 51.358 to make the definition of

``computerized analyzer'' less prescriptive and to relax the

requirement for a real-time data link for those areas required to do I/

M, but which do not need to claim I/M emission reductions to meet their

other, non-I/M CAA requirements, and (c) revise the data collection,

analysis, and reporting requirements at 40 CFR 51.365 and 40 CFR 51.366

to clarify that the specific elements to be collected and reported are

only required where applicable to the test type employed, and to make

the requirements less prescriptive with regard to the test types

assumed; (4) revise the requirements for consumer protection at 40 CFR

51.368 and improving repair effectiveness at 40 CFR 51.369 to limit the

current requirement to provide diagnostic information to those programs

and test types capable of producing such information, reliably and

practically, and; (5) expand the options for complying with the on-road

testing requirement at 40 CFR 51.371 by: (a) Removing language

suggesting that such testing must be tailpipe-based, and (b) inserting

language making the out-of-cycle repair requirement optional where on-

road testing is used as a clean-screen approach.

The goal of these proposed amendments is to bring the rule up-to-

date with current policy decisions and statutory requirements, while

also providing states the additional flexibility they need to tailor

their I/M programs now to better meet their future needs. Among these

future needs are: (1) The need to maximize program efficiency and

customer convenience by capitalizing on newer vehicle testing options,

such as on-board diagnostic (OBD) system testing; (2) the need to

accommodate an in-use fleet turning over to newer, cleaner, and more

durable vehicle technologies over time; and (3) the need to assess the

role I/M should play in areas once they have attained the National

Ambient Air Quality Standards (NAAQS).

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.) and by section 348 of the National Highway System Designation Act

of 1995 (23 U.S.C. 101).

IV. Background of the Proposed Amendments

A. Performance Standard Amendments

Section 182(c)(3)(B)(i) of the Clean Air Act as amended in 1990

requires EPA to develop a performance standard for enhanced I/M areas

to meet. EPA's I/M rule currently requires I/M programs to produce the

same or better emission reductions as would be achieved by one of three

possible enhanced I/M performance standards 1--the high

enhanced, low enhanced, and OTR low enhanced I/M performance standards.

Currently, states demonstrate meeting the relevant performance standard

by modeling their desired program along side the performance standard

program, and comparing both to a no-I/M-program scenario, using the

most current version of EPA's mobile source emission factor model,

MOBILE, and assuming local conditions for fuel type, average

temperature, fleet age distribution, vehicle miles traveled (VMT)

accumulation, etc. The 1992 I/M rule required that enhanced I/M

programs show they could meet the relevant performance standard

beginning with a 2000 evaluation date (which was considered the closest

modeling equivalent to the CAA's November 15, 1999 milestone date for

Reasonable Further Progress) and for each CAA milestone thereafter

(also rounded to the nearest evaluation year) through, to and including

the relevant attainment date. EPA's policy for milestones beginning

with 2003 and later was to consider the standard met if the projected

emission reductions for the state's program came within

0.02 grams-per-mile (gpm) of the performance standard's

projected reductions, due to the uncertainty of modeled benefits for

evaluation years after 2001.

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\1\ The current I/M rule actually contains four enhanced I/M

performance standards as a result of a typographical oversight when

EPA introduced its original flexibility amendments in 1995. EPA

intended to delete the standard described in 40 CFR 51.351(a) and

replace it with the standard described in paragraph (f) of that

section. Unfortunately, both standards were retained. Along with the

other actions proposed today, EPA proposes to correct this

oversight.

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Today's proposal would change the current enhanced I/M performance

standard requirements in three ways:

First, today's proposal would change the requirement that enhanced

I/M programs demonstrate meeting the performance standard beginning

with 2000 and on each subsequent milestone through to and including

attainment. Due to delays in program implementation arising from EPA's

own 1995 and 1996 I/M flexibility amendments and the I/M provisions of

the NHSDA, EPA proposes to push back the first required evaluation date

by two years, to 2002. This proposed revision recognizes that as a

result many programs delayed full implementation beyond a date that

would allow for

[[Page 45493]]

meeting the performance standard before 2002.

Second, EPA proposes to reduce the modeling burden on states by

limiting the number of milestones modeled to a maximum of two: 2002

and, for those areas with post-2002 attainment deadlines, the relevant

CAA attainment deadline, rounded up to the nearest year. In the latter

case--the attainment deadline milestone--the grams-per-mile (gpm) or

percent reduction target for comparison would be the same as that

modeled for the 2002 milestone; states would not be required to model

the performance standard scenario for more than one evaluation date to

establish the relevant gpm or percent reduction target. Rather, states

must show that in the attainment year the area continues to show

compliance with the performance standard as originally modeled for the

2002 compliance date. The purpose of this proposal is to streamline the

I/M rule's modeling requirements and provide additional flexibility to

the states, while still insuring that state I/M programs demonstrate

compliance with the relevant performance standard.

Third, today's proposal would apply the current 2003

0.02 gpm rounding policy one year earlier--to the 2002

milestone. The original 2003 rounding policy was developed when it was

discovered that, due to uncertainties related to long-term projections,

even areas adopting EPA's recommended program appeared to be having

trouble demonstrating compliance with the performance standard for

post-2001 milestones, once local parameters such as vehicle age

distribution were taken into consideration. Under the original I/M

rule, there was no 2002 milestone. Instead, the ozone-based milestones

began with 2000, followed by 2003; in between these was the carbon

monoxide (CO) milestone of 2001, for those enhanced I/M areas in

nonattainment for CO. The original 0.02 gpm rounding policy was

actually a post-2001 policy, and was applied to what was then the first

post-2001 milestone (i.e., 2003). With the delays caused by the I/M

flexibility amendments and the NHSDA (discussed above), a new post-2001

milestone became necessary. EPA believes it is therefore appropriate to

apply the 0.02 gpm rounding policy to this new milestone, and proposes

to formalize that change as part of today's proposed amendments.

B. Network Requirement Amendments

Regarding I/M program network design requirements, the Clean Air

Act as amended in 1990 does not prescribe a network for basic I/M

programs while, at the same time, section 182(c)(3)(C)(vi) of the Act

requires that enhanced I/M programs shall be operated ``on a

centralized basis, unless the State demonstrates to the satisfaction of

the Administrator that a decentralized program will be equally

effective.'' In response to this provision, the 1992 I/M rule defined a

decentralized network design that EPA deemed presumptively equivalent

to a centralized program. The core difference between traditional

centralized versus decentralized I/M programs--EPA then maintained--was

the conflict-of-interest the latter were assumed to suffer from,

because most such programs allowed the same individuals who tested the

vehicle to also perform repairs and then retest the vehicle to

determine the effectiveness of those repairs. It was therefore

concluded that a decentralized program that separated these functions

(i.e., a so-called ``test-only'' program) would be presumptively

equivalent to a centralized program. In May 1994, EPA issued a policy

document entitled, ``EPA Policy on Decentralized, Test-Only Stations,''

which interpreted the 1992 I/M rule as further barring decentralized,

test-only stations from engaging in virtually all other for-profit

activities other than testing, prohibiting (for example) the sale of

convenience store type items. This prohibition was based upon the

further assumption that decentralized stations would otherwise use the

guarantee of a passing test as a way to attract customers to their

other sales and services.

In 1995, the substance of the Clean Air Act's enhanced I/M network

requirement was amended by implication by Section 348(b) of the

National Highway System Designation Act which specified that ``[t]he

Administrator shall not disapprove or apply an automatic discount to a

State implementation plan revision under section 182 or 187 of the

Clean Air Act (42 U.S.C. 7511a; 7512a) on the basis of a policy,

regulation, or guidance providing for a discount of emissions credits

because the inspection and maintenance program in such plan revision is

decentralized or a test-and-repair program.'' States opting for the

NHSDA's flexibility were allowed to claim prospective emission

reduction credit for their I/M SIPs based upon a ``good faith

estimate,'' and were to be granted an interim approval which would

lapse after 18 months if the credit claims were not substantiated by

way of a program effectiveness demonstration. While states were given a

limited time during which they could apply for interim approval under

the NHSDA (i.e., by March 28, 1996), the Highway Act's prohibition

against automatic, decentralized or test-and-repair discounts has no

such expiration date and therefore remains in effect permanently.

Today's proposal would amend the program network requirements at 40

CFR 51.353 in two ways:

First, the proposal would delete 40 CFR 51.353(b) which first

established the automatic credit discount for decentralized, test-and-

repair I/M programs. This amendment is proposed in recognition of and

compliance with the requirements of the National Highway System

Designation Act of 1995.

Second, the proposal would explicitly extend the definition of

decentralized test-only to allow such stations to engage in the full

range of sales not directly related to automotive parts sales or

service, including but not limited to the sale of self-serve gasoline,

pre-packaged oil, and other, non-automotive, convenience store items.

This proposal is based upon EPA's determination that a literal reading

of the 1992 I/M rule's definition does not support the broader

prohibitions set by the subsequent, 1994 policy. Such prohibitions have

been deemed irrelevant, post-NHSDA.

C. Test Procedure and Related Amendments

Section 182(c)(3)(C)(i) of the 1990 Clean Air Act established the

minimum requirements for enhanced I/M programs regarding test equipment

by stating that such programs must include ``(c)omputerized emission

analyzers, including on-road testing devices.'' The 1992 I/M rule, in

interpreting this requirement, was driven by the assumption that all

enhanced I/M programs would include IM240 tailpipe emission testing and

most (i.e., those required for ozone nonattainment or transport areas)

would also include evaporative system purge and pressure testing. As a

result, the 1992 I/M rule's requirements for test procedures and

standards at 40 CFR 51.357 and test equipment at 40 CFR 51.358 (as well

as other, related requirements throughout the 1992 I/M rule) tend to be

prescriptive to the point of excluding valid, alternative, non-IM240

test methodologies. This is especially the case since EPA promulgated

the I/M flexibility amendments in 1995 and 1996, and since passage of

the National Highway System Designation Act of 1995, which, taken

together, provided states the opportunity to explore a wide range of

alternative test type and network design combinations not

[[Page 45494]]

anticipated under the 1992 I/M rule. For example, it is currently

possible for some areas to design programs that meet the required

enhanced I/M performance standard without any tailpipe testing at all,

using, instead, a combination of alternative evaporative system

pressure testing methods, onboard diagnostic system checks, and visual

antitampering inspections. The problem is that the I/M rule, as

currently written, includes several provisions effecting test

procedures which assume tailpipe testing as a given, thus unnecessarily

discouraging areas from pursuing a design option which otherwise meets

the areas' needs and local conditions.

In response to the above dilemma, today's proposal would revise the

I/M rule in three areas:

First, the proposal would revise the test procedure and standard

requirements at 40 CFR 51.357 to clarify that tailpipe exhaust testing

is not a universal requirement for all I/M programs and that

alternatives to the IM240 drive cycle are allowed under the

requirements for transient testing. These revisions would be achieved

largely by deleting the words ``tailpipe'' and ``IM240,'' and inserting

the caveat ``where applicable,'' as needed. Similar amendments would be

made elsewhere in the regulatory text, to the extent that the existing

text creates the impression that IM240 or tailpipe testing are absolute

requirements, or that alternative test methods are otherwise barred.

The proposal would also clarify that the standard for an acceptable

alternative test is comparability, not necessarily equivalence.

Establishing ``equivalence'' as the standard for acceptability has the

effect of requiring that alternative tests individually get the same

level of reductions as the test being replaced. EPA believes that this

is an unnecessarily strict standard, and somewhat arbitrary if other

program parameters can be adjusted so the overall performance standard

is still met. That is, a slightly less effective test could still be

acceptable if performed more frequently or on a larger number of

vehicles to offset potential emission reduction losses due to the

alternative test's being comparable, but not strictly equivalent.

Second, the proposal would revise the test equipment requirements

at 40 CFR 51.358 to make the regulatory definition of ``computerized

analyzer'' less prescriptive to allow evaporative emission testing

devices and onboard diagnostic computer (OBD) scanners to qualify as

``computerized analyzers'' under the Act. The current regulatory

definition of ``computerized analyzers'' focuses on a system centered

on a traditional, personal computer, with keyboard input, etc. EPA

believes this is no longer appropriate under the Clean Air Act, given

the recent changes under the NHSDA discussed above. Under the broader

definition proposed, the focus would concentrate on the existence of a

central processing unit, and whether or not the criteria for making

pass/fail decisions are automated. EPA also proposes to relax the

requirement for a real-time data link for those areas required to do I/

M, but which do not need to claim I/M emission reductions to meet their

other, non-I/M CAA requirements. This is proposed to provide

flexibility to those areas which are not relying on I/M to meet their

CAA goals and that have opted to employ stand-alone test equipment that

is not readily connected to a centralized, real-time database. EPA

believes a real-time data link is not necessary for these types of

programs.

Third, the proposal would revise the data collection, analysis, and

reporting requirements at 40 CFR 51.365 and 40 CFR 51.366 to clarify

that the elements to be collected and reported are only required where

applicable to the program type in use in the area, and to make the

requirements less prescriptive with regard to the test types assumed.

These proposed revisions would also have the effect of streamlining

this portion of the rule and would likely reduce the paperwork burden

these reporting requirements place on states without compromising

overall program effectiveness.

D. Consumer Protection and Repair Effectiveness Amendments

Section 51.368(a) of the I/M rule currently requires that enhanced

I/M programs provide motorists that fail the inspection with

``software-generated, interpretive diagnostic information based on the

particular portions of the test that were failed.'' Section 51.369(c)

of the I/M rule requires that repair technicians receive training in

diagnostic theory related to transient and evaporative emission test

failures. In both cases, these requirements were developed based upon

the assumption that enhanced I/M programs would be built around the

IM240 test and would produce second-by-second emissions data that could

be used as an important diagnostic tool, with certain component

failures producing characteristic speed versus emission traces. Since

the 1992 rule was promulgated, however, a wide-range of non-transient,

alternative I/M tests have been approved for use in enhanced I/M

programs. These tests do not produce the detailed kind of diagnostic

information that is possible with a transient test like the IM240,

though they are certainly capable of producing generic diagnostic

information, based upon which tests and/or standards are failed.

Therefore, today's proposal would revise the diagnostic information

provisions at 40 CFR 51.368 and 40 CFR 51.369 to make the requirement

to provide diagnostic information more generic and only required where

applicable to the test type employed.

E. On-Road Testing Amendments

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

enhanced I/M programs include ``on-road testing devices.'' In its 1992

I/M rule, EPA indicated that this requirement could be met by either

using remote sensing devices (RSD) or by conducting road-side pull-

over, tailpipe testing. In either case, vehicles which failed the test

were required to get out-of-cycle repairs, the presumption being that

the purpose of such testing was to identify dirty vehicles in need of

such repairs.

Today's proposal would revise the on-road testing requirements at

40 CFR 51.371 in two ways:

First, the proposal would remove language suggesting that the road-

side pull-over test must be a tailpipe test. The purpose of this change

is to open up this requirement so that it can be met using alternative

evaporative system pressure testing and/or OBD conducted at the

roadside, consistent with changes in I/M program design discussed

above.

Second, the proposal would remove the requirement for out-of-cycle

repairs where on-road testing is used as a pre-test clean screen

method. The purpose of this change is to allow states to use

alternative applications for RSD that have been developed since the

1992 I/M rule was promulgated. These alternatives include an approach

known as ``clean screening,'' where the goal is not to identify high

polluting vehicles for out-of-cycle repairs, but rather to identify

especially clean vehicles which can be exempted from the routine test.

Since such clean screening programs do not generate emission reductions

so much as run the risk of losing those reductions by falsely

identifying (and therefore exempting) vehicles needing repairs as

``clean,'' the proposal would also clarify that only on-road programs

requiring out-of-cycle repairs are eligible to claim additional

emission reduction credit for such pre-screening on-road testing.

[[Page 45495]]

V. Discussion of Major Issues

A. Emission Impact of the Proposed Amendments

Today's proposal introduces additional flexibilities which EPA

believes are needed to allow states to adopt and/or revise their I/M

programs in a way which helps them to meet local needs as smoothly as

possible. Today's proposal is also aimed at removing certain

restrictions in the 1992 I/M rule that would impede transition to the

I/M of the future, which EPA believes will focus largely on OBD-based

testing technologies available on 1996 and later model-year vehicles,

as opposed to today's traditional tailpipe tests. Although today's

proposal does have the potential for allowing some states to implement

more modest I/M programs than would otherwise be the case, nothing in

this notice should be construed as requiring or compelling states to

downsize their programs. Furthermore, nothing in this notice changes

the Clean Air Act's other requirements with regard to 15%, Reasonable

Further Progress, or Attainment plans. Instead, this proposal is aimed

at allowing states greater flexibility in deciding how to apportion the

emission reductions they need, reflecting local needs and conditions to

the best extent possible. In that regard, the intention of this

proposal is to take the focus off ``I/M for the sake of I/M'' and

return it where it belongs--on cleaning the air by whatever method

makes the most sense.

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, if a plan has already been

submitted and approved. Each case is likely to be different, depending

upon the magnitude and direction 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

options (not obligations or requirements) for those states that choose

to take advantage of the flexibilities proposed in today's notice.

Should a state with an approved I/M program for which credit is

being claimed as part of an approved Reasonable Further Progress (RFP)

and/or Attainment SIP choose to revise its I/M program in such a way as

to lower the emission reductions attributable to the I/M program, then

such state will need to not only revise its I/M SIP but also its

affected RFP and Attainment SIPs to address this shortfall.

Specifically, the emission reduction losses due to the state's changes

to its I/M program will have to be made up through the adoption and

implementation of additional measures which will need to be

incorporated as revisions to the affected RFP and Attainment SIPs. Such

revisions will be subject to notice-and-comment rulemaking, and must be

approved by the Administrator.

VI. Economic Costs and Benefits

Today's proposed revisions provide 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 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-99-19.

VIII. Administrative Requirements

A. Administrative Designation

It has been determined that these proposed amendments to the I/M

rule do not constitute a significant regulatory action under the terms

of Executive Order 12866 and this action 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 additional 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 basic and 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 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 Sec. 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

[[Page 45496]]

from those resulting from the currently existing I/M rule.

E. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, any written communications

from the governments, and a statement supporting the need to issue the

regulation. In addition, Executive Order 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates. Today's rule does not create

a mandate on State, local or tribal governments. The rule does not

impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of Executive Order 12875 do not apply to

this rule.

F. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Today's rule does not create a mandate on tribal

governments or create any additional burden or requirements for tribal

government. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 3(b) of Executive

Order 13084 do not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental

Health Risks and Safety Risks

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any

rule that: (1) Is determined to be economically significant as defined

under E.O. 12866, and (2) concerns an environmental health or safety

risk that EPA has reason to believe may have a disproportionate effect

on children. If the regulatory action meets both criteria, the Agency

must evaluate the environmental health or safety effects of the planned

rule on children, and explain why the planned regulation is preferable

to other potentially effective and reasonably feasible alternatives

considered by the Agency. EPA interprets E.O. 13045 as applying only to

those regulatory actions that are based on health or safety risks, such

that the analysis required under section 5-501 of the Order has the

potential to influence the regulation. This rule is not subject to E.O.

13045 because it is not economically significant under E.O. 12866 and

because it is based on technology performance and not on health or

safety risks.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA) directs all Federal agencies to use voluntary

consensus standards instead of government-unique standards in their

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., material specifications, test methods,

sampling and analytical procedures, business practices, etc.) that are

developed or adopted by one or more voluntary consensus standards

bodies. Examples of organizations generally regarded as voluntary

consensus standards bodies include the American Society for Testing and

Materials (ASTM), the National Fire Protection Association (NFPA), and

the Society of Automotive Engineers (SAE). The NTTAA requires Federal

agencies like EPA to provide Congress, through OMB, with explanations

when an agency decides not to use available and applicable voluntary

consensus standards.

These proposed amendments do not involve technical standards.

Therefore, EPA is not considering the use of any voluntary consensus

standards.

List of Subjects in 40 CFR Part 51

Environmental protection, Administrative practice and procedure,

Air pollution control, Carbon monoxide, Transportation.

Dated: August 6, 1999.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, part 51 of 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 is revised to read as

follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

2. Section 51.350 is amended by revising paragraph (c) to read as

follows:

Sec. 51.350 Applicability.

* * * * *

(c) Requirements after attainment. All I/M programs shall provide

that the program will remain effective, even if the area is

redesignated to attainment status or the standard is otherwise rendered

no longer applicable, until the State submits and EPA approves a SIP

revision which convincingly demonstrates that the area can maintain the

relevant standard(s) without benefit of the emission reductions

attributable to the I/M program. The State shall commit to fully

implement and enforce the program until such a demonstration can be

made and approved by EPA. At a minimum, for the purposes of SIP

approval, legislation authorizing the program shall not sunset prior to

the attainment deadline for the applicable National Ambient Air Quality

Standards (NAAQS).

* * * * *

3. Section 51.351 is amended by removing and reserving paragraphs

(a), revisings (b), (f) introductory text, (f)(13), (g)(13) and (h)(11)

to read as follows:

[[Page 45497]]

Sec. 51.351 Enhanced I/M performance standard.

(a) [Reserved]

(b) On-road testing. The performance standard shall include on-road

testing (including out-of-cycle repairs in the case of confirmed

failures) of at least 0.5% of the subject vehicle population, or 20,000

vehicles whichever is less, as a supplement to the periodic inspection

required in paragraphs (f), (g), and (h) of this section. Specific

requirements are listed in Sec. 51.371 of this subpart.

* * * * *

(f) High Enhanced Performance Standard. Enhanced I/M programs shall

be designed and implemented to meet or exceed a minimum performance

standard, which is expressed as emission levels in area-wide average

grams per mile (gpm), achieved from highway mobile sources as a result

of the program. The emission levels achieved by the State's program

design shall be calculated using the most current version, at the time

of submittal, of the EPA mobile source emission factor model or an

alternative model approved by the Administrator, and shall meet the

minimum performance standard both in operation and for SIP approval.

Areas shall meet the performance standard for the pollutants which

cause them to be subject to enhanced I/M requirements. In the case of

ozone nonattainment areas subject to enhanced I/M and subject areas in

the Ozone Transport Region, the performance standard must be met for

both oxides of nitrogen (NOx) and volatile organic compounds (VOCs),

except as provided in paragraph (d) of this section. Except as provided

in paragraphs (g) and (h) of this section, the model program elements

for the enhanced I/M performance standard shall be as follows:

* * * * *

(13) Evaluation date. Enhanced I/M program areas subject to the

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

emission levels as the model program described in this paragraph by

January 1, 2002 to within +/-0.02 gpm. Subject programs shall

demonstrate through modeling the ability to maintain this level of

emission reduction (or better) through their attainment deadline for

the applicable NAAQS standard(s).

(g) * * *

(13) Evaluation date. Enhanced I/M program areas subject to the

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

emission levels as the model program described in this paragraph by

January 1, 2002 to within +/-0.02 gpm. Subject programs shall

demonstrate through modeling the ability to maintain this level of

emission reduction (or better) through their attainment deadline for

the applicable NAAQS standard(s).

(h) * * *

(11) Evaluation date. 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, 2002 to within +/-0.02 gpm. Subject programs

shall demonstrate through modeling the ability to maintain this level

of emission reduction (or better) through their attainment deadline for

the applicable NAAQS standard(s). Equality of substituted emission

reductions to the benefits of the low enhanced performance standard

must be demonstrated for the same evaluation date.

4. Section 51.353 is amended by revising the introductory text and

paragraph (a) and by removing and reserving (b) to read as follows:

Sec. 51.353 Network type and program evaluation.

Basic and enhanced I/M programs can be centralized, decentralized,

or a hybrid of the two at the State's discretion, but shall be

demonstrated to achieve the same (or better) level of emission

reduction as the applicable performance standard described in either

Sec. 51.351 or Sec. 51.352 of this subpart. For decentralized programs

other than those meeting the design characteristics described in

paragraph (a) of this section, the State must demonstrate that the

program is achieving the level of effectiveness claimed in the plan

within 12 months of the plan's approval. The adequacy of these

demonstrations will be judged by the Administrator on a case-by-case

basis through notice-and-comment rulemaking.

(a) Presumptive equivalency. A decentralized network consisting of

stations that only perform official I/M testing (which may include

safety-related inspections) and in which owners and employees of those

stations, or companies owning those stations, are contractually or

legally barred from engaging in motor vehicle repair or service, motor

vehicle parts sales, and motor vehicle sale and leasing, either

directly or indirectly, and are barred from referring vehicle owners to

particular providers of motor vehicle repair services (except as

provided in Sec. 51.369(b)(1) of this subpart) shall be considered

presumptively equivalent to a centralized, test-only system including

comparable test elements. States may allow such stations to engage in

the full range of sales not covered by the above prohibition, including

self-serve gasoline, pre-packaged oil, or other, non-automotive,

convenience store items. At the State's discretion, such stations may

also fulfill other functions typically carried out by the State such as

renewal of vehicle registration and driver's licenses, or tax and fee

collections. Decentralized networks designed around these restrictions

need not provide any additional demonstration to substantiate their I/M

SIP emission reduction credit claims, with the exception of the

biennial program evaluation required of all enhanced I/M programs and

described in paragraph (c) of this section.

(b) [Reserved]

* * * * *

5. Section 51.357 is amended by revising paragraphs (a)(3), (a)(4),

(a)(6), (a)(11), and (a)(13) to read as follows:

Sec. 51.357 Test procedures and standards.

* * * * *

(a) * * *

(3) An official test, once initiated, shall be performed in its

entirety regardless of intermediate outcomes except in the case of

invalid test condition, unsafe conditions, fast pass/fail algorithms,

or, in the case of the on-board diagnostic (OBD) system check, unset

readiness codes.

(4) Tests involving measurement shall be performed with program-

approved equipment that has been calibrated according to the quality

procedures contained in appendix A to this subpart.

* * * * *

(6) Vehicles shall be retested after repair for any portion of the

inspection that is failed on the previous test to determine if repairs

were effective. To the extent that repair to correct a previous failure

could lead to failure of another portion of the test, that portion

shall also be retested. Evaporative system repairs shall trigger an

exhaust emissions retest (in programs which conduct an exhaust emission

test as part of the initial inspection).

* * * * *

(11) Transient emission test. The transient emission test shall

consist of mass emission measurement using a constant volume sampler

(or an Administrator-approved alternative methodology for accounting

for exhaust volume) while the vehicle is driven through a computer-

monitored driving cycle on a dynamometer. The driving cycle shall

include acceleration, deceleration, and idle operating modes as

specified in appendix E to this subpart (or an approved alternative).

[[Page 45498]]

The driving cycle may be ended earlier using approved fast pass or fast

fail algorithms and multiple pass/fail algorithms may be used during

the test cycle to eliminate false failures. The transient test

procedure, including algorithms and other procedural details, shall be

approved by the Administrator prior to use in an I/M program.

* * * * *

(13) Approval of alternative tests. Alternative test procedures may

be approved if the Administrator finds that such procedures would

produce comparable emission reductions from the I/M program as a whole,

in combination with other program elements.

* * * * *

6. Section 51.358 is amended by revising the introductory text,

paragraphs (a) introductory text, (a)(2)(i), (a)(2)(ii), (a)(2)(iv),

(a)(3) introductory text, (a)(3)(iv), (a)(3)(vi), (a)(3)(ix), (b)

introductory text, (b)(2) and (c) and by removing and reserving (b)(1)

and (3) to read as follows:

Sec. 51.358 Test equipment.

Computerized test systems are required for performing an official

emissions test on subject vehicles.

(a) Performance features of computerized test systems. With the

exception of test procedures relying upon a vehicle's onboard

diagnostic (OBD) system (which is certified as part of the overall

vehicle certification process), the test equipment shall be certified

by the program, and newly acquired systems shall be subjected to

acceptance test procedures to ensure compliance with program

specifications.

(2) * * *

(i) Shall be automated;

(ii) Shall be secured from tampering and/or abuse;

(iii) * * *

(iv) Shall be capable of simultaneously sampling dual exhaust

vehicles in the case of tailpipe-based emission test equipment.

(3) The vehicle owner or driver shall be provided with a record of

test results, including all of the items listed in 40 CFR part 85,

subpart W as being required on the test record (as applicable). The

test report shall include:

* * * * *

(iv) The type(s) of test(s) performed;

* * * * *

(vi) The test results, by test, and, where applicable, by

pollutant;

* * * * *

(ix) For vehicles that fail the emission test, information on the

possible cause(s) of the failure.

(b) Functional characteristics of computerized test systems. The

test system is composed of motor vehicle test equipment controlled by a

computerized processor and shall make automatic pass/fail decisions.

(1) [Reserved]

(2) Test systems in enhanced I/M programs shall include a real-time

data link to a host computer that prevents unauthorized multiple

initial tests on the same vehicle in a test cycle and to insure test

record accuracy. For areas which have demonstrated the ability to meet

their other, non-I/M Clean Air Act requirements without relying on

emission reductions from the I/M program (and which have also elected

to employ stand-alone test equipment as part of the I/M program), such

areas may adopt alternative methods for preventing multiple initial

tests, subject to approval by the Administrator.

(3) [Reserved]

* * * * *

(c) SIP requirements. The SIP shall include written technical

specifications for all test equipment used in the program and shall

address each of the above requirements (as applicable). The

specifications shall describe the testing process, the necessary test

equipment, the required features, and written acceptance testing

criteria and procedures.

7. Section 51.359 is amended by revising the introductory text, and

paragraph (a)(1), removing and reserving (a)(3) and revising (c) and

(d) to read as follows:

Sec. 51.359 Quality control.

Quality control measures shall insure that emission testing

equipment is calibrated and maintained properly, and that inspection,

calibration records, and control charts are accurately created,

recorded and maintained (where applicable).

(a) * * * (1) The practices described in this section and in

appendix A to this subpart shall be followed for those tests (or

portions of tests) which fall into the testing categories identified.

Alternatives or exceptions to these procedures or frequencies may be

approved by the Administrator based on a demonstration of comparable

performance.

(2) * * *

(3) [Reserved]

* * * * *

(c) Requirements for transient exhaust emission test equipment.

Equipment shall be maintained according to demonstrated good

engineering practices to assure test accuracy. Computer control of

quality assurance checks and quality control charts shall be used

whenever possible. Exceptions to the procedures and the frequency of

the checks described in appendix A of this subpart may be approved by

the Administrator based on a demonstration of comparable performance.

(d) Requirements for evaporative system functional test equipment.

Equipment shall be maintained according to demonstrated good

engineering practices to assure test accuracy. Computer control of

quality assurance checks and quality control charts shall be used

whenever possible. Exceptions to the procedures and the frequency of

the checks described in appendix A of this subpart may be approved by

the Administrator based on a demonstration of comparable performance.

* * * * *

8. Section 51.362 is amended by revising paragraphs (a)(2) and

(b)(4) to read as follows:

Sec. 51.362 Motorist compliance enforcement program oversight.

* * * * *

(a) * * *

(2) Facilitation of accurate critical test data and vehicle

identifier collection through the use of automatic data capture systems

such as bar-code scanners or optical character readers, or through

redundant data entry (where applicable);

* * * * *

(b) * * *

(4) Maintain and ensure the accuracy of the testing database

through periodic internal and/or third-party review;

* * * * *

9. Section 51.363 is amended by revising paragraphs (a)(4)(vii),

(b)(1), (c)(10), (d)(1)(i) to read as follows:

Sec. 51.363 Quality assurance.

* * * * *

(a) * * *

(4) * * *

(vii) Where applicable, access to on-line inspection databases by

State personnel to permit the creation and maintenance of covert

vehicle records.

(b) * * *

(1) Automated record analysis to identify statistical

inconsistencies, unusual patterns, and other discrepancies;

* * * * *

(c) * * *

(10) A check of the pressure monitoring devices used to perform the

evaporative canister pressure test(s); and

* * * * *

(d) * * *

(1) * * *

[[Page 45499]]

(i) The use of test equipment and/or procedures;

* * * * *

10. Section 51.365 is amended by revising the introductory text,

paragraphs (a)(3), (a)(23), (a)(24), (a)(25), and (b) to read as

follows:

Sec. 51.365 Data collection.

Accurate data collection is essential to the management,

evaluation, and enforcement of an I/M program. The program shall gather

test data on individual vehicles, as well as quality control data on

test equipment (with the exception of test procedures for which either

no testing equipment is required or those test procedures relying upon

a vehicle's OBD system).

(a) * * *

(3) Test system number (where applicable);

* * * * *

(23) Results of the evaporative system pressure test(s) expressed

as a pass or fail;

(24) Results of the evaporative system purge test expressed as a

pass or fail along with the total purge flow in liters achieved during

the test (where applicable); and

(25) Results of the on-board diagnostic check expressed as a pass

or fail along with the diagnostic trouble codes revealed (where

applicable).

(b) Quality control data. At a minimum, the program shall gather

and report the results of the quality control checks required under

Sec. 51.359 of this subpart, identifying each check by station number,

system number, date, and start time. The data report shall also contain

the concentration values of the calibration gases used to perform the

gas characterization portion of the quality control checks (where

applicable).

11. Section 51.366 is amended by revising paragraphs (a)(2)(i),

(a)(2)(ii), (a)(2)(iii), (a)(2)(iv), (a)(2)(v), (a)(2)(vi), (b)(3)(i),

(b)(3)(ii), (b)(3)(iii) and (b)(3)(iv) to read as follows:

Sec. 51.366 Data analysis and reporting.

* * * * *

(a) * * *

(2) * * *

(i) Failing initially, per test type;

(ii) Failing the first retest per test type;

(iii) Passing the first retest per test type;

(iv) Initially failed vehicles passing the second or subsequent

retest per test type;

(v) Initially failed vehicles receiving a waiver; and

(vi) Vehicles with no known final outcome (regardless of reason).

* * * * *

(b) * * *

(3) * * *

(i) Conducted with the vehicle set to fail per test type;

(ii) Conducted with the vehicle set to fail any combination of two

or more test types;

(iii) Resulting in a false pass per test type;

(iv) Resulting in a false pass for any combination of two or more

test types;

* * * * *

12. Section 51.367 is amended by revising paragraphs (a)(1)(vi) and

(a)(3) to read as follows:

Sec. 51.367 Inspector training and licensing or certification.

* * * * *

(a) * * * (1) * * *

(vi) Test equipment operation, calibration, and maintenance (with

the exception of test procedures which either do not require the use of

special equipment or which rely upon a vehicle's OBD system);

* * * * *

(3) In order to complete the training requirement, a trainee shall

pass (i.e., a minimum of 80% of correct responses or lower if an

occupational analysis justifies it) a written test covering all aspects

of the training. In addition, a hands-on test shall be administered in

which the trainee demonstrates without assistance the ability to

conduct a proper inspection and to follow other required procedures.

Inability to properly conduct all test procedures shall constitute

failure of the test. The program shall take appropriate steps to insure

the security and integrity of the testing process.

* * * * *

13. Section 51.368 is amended by revising paragraph (a) to read as

follows:

Sec. 51.368 Public information and consumer protection.

(a) Public awareness. The SIP shall include a plan for informing

the public on an ongoing basis throughout the life of the I/M program

of the air quality problem, the requirements of Federal and State law,

the role of motor vehicles in the air quality problem, the need for and

benefits of an inspection program, how to maintain a vehicle in a low-

emission condition, how to find a qualified repair technician, and the

requirements of the I/M program. Motorists that fail the I/M test in

enhanced I/M areas shall be offered a list of repair facilities in the

area and information on the results of repairs performed by repair

facilities in the area, as described in Sec. 51.369(b)(1) of this

subpart. Motorists that fail the I/M test shall also be provided with

information concerning the possible cause(s) for failing the particular

portions of the test that were failed.

* * * * *

14. Section 51.369 is amended by revising paragraphs (c)(2) and

(c)(3) to read as follows:

Sec. 51.369 Improving repair effectiveness.

* * * * *

(c) * * *

(2) The application of emission control theory and diagnostic data

to the diagnosis and repair of failures on the transient emission test

and the evaporative system functional checks (where applicable);

(3) Utilization of diagnostic information on systematic or repeated

failures observed in the transient emission test and the evaporative

system functional checks (where applicable); and

* * * * *

15. Section 51.371 is amended by revising the introductory text,

paragraphs (a)(2), (a)(3), (b)(2) and (b)(3) to read as follows:

Sec. 51.371 On-road testing.

On-road testing is defined as testing of vehicles for conditions

directly impacting the emission of HC, CO, NOx and/or

CO2 emissions on any road or roadside in the nonattainment

area or the I/M program area. On-road testing is required in enhanced

I/M areas and is an option for basic I/M areas.

(a) * * *

(2) On-road testing is not required in every season or on every

vehicle but shall evaluate the emission performance of 0.5% of the

subject fleet statewide or 20,000 vehicles, whichever is less, per

inspection cycle.

(3) The on-road testing program shall provide information about the

performance of in-use vehicles, by measuring on-road emissions through

the use of remote sensing devices or by assessing vehicle emission

performance through roadside pullovers including onboard diagnostic

(OBD) system testing or other emission testing. The program shall

collect, analyze and report on-road testing data.

* * * * *

(b) * * *

(2) The SIP shall include the legal authority necessary to

implement the on-road testing program, including the authority to

enforce off-cycle inspection and repair requirements (where

applicable).

(3) Emission reduction credit for on-road testing programs shall be

granted for a program designed to obtain significant emission

reductions over and

[[Page 45500]]

above those already predicted to be achieved by other aspects of the I/

M program. Emission reduction credit will only be granted to those

programs which require out-of-cycle repairs for confirmed high-emitting

vehicles identified under the on-road testing program. The SIP shall

include technical support for the claimed additional emission

reductions.

[FR Doc. 99-21661 Filed 8-19-99; 8:45 am]

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