[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Rules and Regulations]
[Pages 1362-1368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-551]
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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
bradish.tracey@epamail.epa.gov.
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
