[Federal Register Volume 60, Number 3 (Thursday, January 5, 1995)]
[Rules and Regulations]
[Pages 1735-1738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-254]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-5132-7]
RIN 2060-AE21


Inspection/Maintenance Program Requirements--Provisions for 
Redesignation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today's action revises the motor vehicle Inspection/
Maintenance Program Requirements final rule promulgated on November 5, 
l992. EPA proposed these revisions on June 28, l994, allowing 
stakeholders ample opportunity for review and comment, and is taking 
final action on the revisions to include additions and modifications, 
regarding State Implementation Plan submissions for states with 
nonattainment areas that are in a position to redesignate to 
attainment. The revisions specify SIP requirements only for areas that 
are subject to the basic Inspection/Maintenance program requirement and 
that otherwise qualify for redesignation from nonattainment to 
attainment for the carbon monoxide or ozone national ambient air 
quality standards. This rule allows such areas to defer adoption and 
implementation of some of the otherwise applicable requirements 
established in the original promulgation of the Inspection/Maintenance 
rule. It is an appropriate time to take this action since the rule 
applies only to areas that by virtue of their air quality 
classification are required to implement a basic I/M program and that 
submit, and otherwise qualify for, a redesignation request.

EFFECTIVE DATE: The effective date of this rule is January 5, 1995.

ADDRESSES: Materials relevant to this rulemaking are contained in 
Public Docket No. A-93-21. The docket is located at the Air Docket, 
room M-1500 (LE-131), Waterside Mall SW., Washington, DC 20640. The 
Docket may be inspected from 8 a.m. to 4:30 p.m. on weekdays. A 
reasonable fee may be charged for coping docket material.

FOR FURTHER INFORMATION CONTACT: Eugene J. Tierney, Office of Mobile 
Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth 
Road, Ann Arbor, Michigan, 48105. (313) 668-4456.

SUPPLEMENTARY INFORMATION: Section l07(d)(3)(E) of the Clean Air Act, 
as amended in l990 (the Act), states that an area can be redesignated 
to attainment if the following conditions are met: EPA has determined 
that the National ambient air quality standards have been attained; EPA 
has fully approved the applicable implementation plan under section 
110(k); EPA has determined that the improvement in air quality is due 
to permanent and enforceable reductions in emissions due to the 
implementation plan and other permanent and enforceable reductions; the 
State has met all applicable requirements of section 110 and part D; 
and, EPA has fully approved a maintenance plan for the area under 
section 175A of the Act. Section 175A in turn requires states that 
submit a redesignation request to submit a plan, and any additional 
measures if necessary, for maintenance of the air quality standard, for 
at least a 10 year period following EPA's final approval of the 
redesignation. It also requires the plan to include contingency 
provisions to ensure prompt correction of any violation of the standard 
which occurs after redesignation. The contingency measures must include 
a provision requiring the state to implement measures which were 
contained in the State Implementation Plan (SIP) prior to redesignation 
as an attainment area.
    Today's action revises subpart S of part 51 of title 40 of the Code 
of Federal Regulations (subpart S) to address Inspection/Maintenance 
(I/M) program requirements for areas subject to the Act's basic I/M 
requirements and that otherwise would qualify for and ultimately obtain 
approval by EPA of redesignation requests to attainment. This final 
rule adds a new paragraph to the regulation pertaining to State 
Implementation Plan (SIP) submissions for areas required to implement a 
basic I/M program that are submitting and otherwise qualify for 
approval of a redesignation request. Areas subject to basic I/M fall 
into several categories. There are basic areas that will be submitting 
redesignation requests that do not currently have I/M programs, or have 
either a basic program implemented pursuant to the l977 amendments to 
the Act or a basic program required to be upgraded to meet the 
requirements of EPA's I/M regulations. For purposes of today's final 
rulemaking, EPA is using the word ``upgraded'' to refer to a basic I/M 
program that meets all the basic I/M program requirements of the I/M 
rule, subpart S, part 5l, title 40 of the Code of Federal Regulations 
in addition to pre-l990 Clean Air Act I/M program policy. This rule 
applies only to areas that by virtue of their air quality 
classification are required to implement a basic I/M program, and that 
submit, and otherwise qualify for a redesignation request.Pursuant to 
sections 182(a)(2)(B)(i) and 182(b)(4) of the Act, basic I/M areas must 
submit a SIP revision that includes any ``provisions necessary to 
provide for a vehicle inspection and maintenance program'' of no less 
stringency than either the program that was in the SIP at the time of 
passage of the Act or the minimum basic program requirements, whichever 
is more stringent. For purposes of this final rule EPA interprets the 
statutory language of [[Page 1736]] section 182(a)(2)(B)(i) and section 
l82(b)(4) as providing a degree of flexibility compared with the 
statutory language in section l82(c)(3), which requires enhanced I/M 
areas to submit a SIP revision ``to provide for an enhanced program''. 
For areas that otherwise qualify for redesignation to attainment and 
ultimately obtain EPA approval to be redesignated, EPA is today 
amending Subpart S to allow such areas to be redesignated if they 
submit a SIP that contains the following four elements: (1) Legal 
authority for a basic I/M program (or an enhanced program, as defined 
in this final rule, if the state chooses to opt up), meeting all of the 
requirements of Subpart S such that implementing regulations can be 
adopted without further legislation; (2) a request to place the I/M 
plan or upgrades, as defined in this rule, (as applicable) in the 
contingency measures portion of the maintenance plan upon redesignation 
as described in the fourth element below; (3) a contingency measure to 
go into effect as soon as a triggering event occurs, consisting of a 
commitment by the Governor or the Governor's designee to adopt 
regulations to implement the I/M program in response to the specified 
triggering event; and (4) a commitment that includes an enforceable 
schedule for adopting and implementing the I/M program, including 
appropriate milestones, in the event the contingency measure is 
triggered (milestones shall be defined by states in terms of months 
since the triggering event). EPA believes that for areas that otherwise 
qualify for redesignation a SIP meeting these four requirements would 
satisfy the obligation to submit ``provisions to provide'' for a 
satisfactory I/M program, as required by the statute.
    With these amendments the determination of whether a state fulfills 
the basic I/M SIP requirements will depend, for the purposes of 
redesignation approval only, on whether the state meets the four 
requirements listed above. EPA believes that it is permissible to 
interpret the basic I/M requirement to provide this flexibility and 
that it should apply only for the limited purpose of considering a 
redesignation request to attainment.

Summary of Comments

    EPA received comments from the Natural Resources Defense Council 
(NRDC) opposing the proposal to redesignate an area as in attainment 
when such an area has not yet submitted regulations for a basic I/M 
program. NRDC argues that the phrase ``any provisions necessary'' 
plainly encompasses any adopted regulations needed to implement the 
program. NRDC argues that EPA ignores the impact of the word ``any'' 
and claims that Congress used this term to require that the State 
submit ``all'' that is necessary to put a basic I/M program in place. 
NRDC further argues that without adopted regulations a SIP is 
incomplete and cannot be approved.
    EPA disagrees with NRDC's comments. The plain language of the 
statute requires that each SIP include ``any provisions necessary to 
provide for'' the required I/M program. It is EPA's view that what is 
``necessary'' to provide for the required I/M program depends on the 
area in question. For areas which have attained the ambient standard 
with the benefit of only the current program, or no program at all, EPA 
does not believe it is ``necessary'' to revise or adopt new regulations 
and undertake other significant planning efforts which are not 
essential for clean air, and which would not be implemented after 
redesignation occurred because they are not ``necessary'' for 
maintenance. For such areas that would otherwise be eligible for 
redesignation to attainment, EPA believes that a contingency plan that 
includes already enacted legislative authority and provides for 
adoption of an I/M program on an expeditious schedule if the area 
develops a problem is the only set of provisions necessary to provide 
for an I/M program.
    Although for most purposes EPA will continue to interpret 
``provisions necessary to provide for'' a basic I/M program to require 
full adoption and expeditious implementation of such a program it is 
appropriate, based on the flexible language provided in section 
182(a)(2)(B)(i) and 182(b)(4) as compared with section l82(c)(3), to 
revise the SIP revision requirements applicable to basic I/M areas that 
otherwise qualify for, and ultimately receive, redesignation.
    Contrary to NRDC's assertions, a SIP revision applicable to basic 
I/M areas that otherwise qualify for, and ultimately receive, 
redesignation would meet the minimum completeness criteria without 
adopted regulations. EPA promulgated criteria setting forth the minimum 
criteria necessary for any submittal to be considered complete. 40 CFR 
part 51, appendix V. However, EPA recognizes that not all of the listed 
criteria are necessarily applicable to all of the various types of 
submissions which require a completeness determination. Accordingly, 
EPA interprets the completeness criteria to apply only those criteria 
that are relevant to the particular types of submissions. 1

    \1\Emission inventories required pursuant to 42 U.S.C. 
7511a(a)(1) for ozone nonattainment areas are also an example of a 
required submittal that by definition could never satisfy all of the 
completeness criteria. As with committal SIPs, emission inventories 
are not in the form of regulations and do not include other 
technical items identified in the completeness criteria such as 
emission limits or test methods. 40 CFR part 51, appendix V, section 
2.1(d), (g).
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    To be complete, a plan submission typically must supply the 
elements necessary to comply with the provisions of the CAA, including, 
among other things, specific enforceable measures. 40 CFR part 51, 
appendix V. section 2.l(d). As discussed earlier, however, EPA believes 
that it may provide that adopted regulations are not necessary to meet 
the statutory requirements of sections 182(a)(2)(B)(i) and 182(b)(4) of 
the CAA. EPA interprets these sections to provide that in some 
circumstances areas should be allowed to submit plans which lack 
specific enforceable measures, as long as the SIP includes provisions 
necessary to provide for the required program. It makes little sense 
for Congress to provide such flexibility under these sections, only to 
require that such submissions be summarily rejected on the grounds of 
incompleteness. A reasonable reading of the statute would give effect 
to both provisions by permitting areas that otherwise qualify for, and 
ultimately receive, redesignation to have their redesignation requests 
determined ``complete'' if the submission contains ``provisions 
necessary to provide for'' the I/M program. Thus, as long as such an 
area submits a SIP that contains the four elements discussed in this 
rule, EPA will deem that submission ``complete'' only for the purposes 
of determining whether an area seeking redesignation has met the basic 
I/M requirements.
    NRDC also commented that Congress did not intend the phrase 'any 
provisions necessary' to justify a mere commitment to adopt I/M 
regulations at some later date. NRDC cites Natural Resources Defense 
Council v. Environmental Protection Agency, 22 F.3d 1125 (D.C. Cir. 
1994) (``NRDC v. EPA'') for further support of their argument.
    As discussed in the proposal, in NRDC v. EPA, 22 F.3d 1125 (D. C. 
Cir. l994) the D. C. Court of Appeals held that EPA did not have 
authority to construe section ll0(k)(4) to authorize conditional 
approval of an I/M committal SIP that contains no specific substantive 
measures. A premise of the case is that I/M SIP submissions are 
required to have fully adopted rules. In [[Page 1737]] today's rule, 
EPA continues to interpret section 182 as generally requiring I/M 
programs to have fully adopted rules. However, EPA here is 
reinterpreting the relevant statutory sections to permit an exception 
to this general requirement for areas otherwise qualifying for 
redesignation to attainment. Based on this interpretation, the SIPs for 
states that otherwise qualify for redesignation may receive full 
approval, not conditional approval under section ll0(K)(4),if they 
contain legislative authority for, and a commitment to adopt, an I/M 
program in their contingency plan. Thus, the court's holding in NRDC v. 
EPA is not implicated here.
    Without these amendments, states that are being redesignated to 
attainment would have to adopt a full I/M program for the purpose of 
obtaining full approval of their SIPs as meeting all applicable SIP 
requirements, which is a prerequisite for approval of a redesignation 
request. Once redesignated, these areas could discontinue 
implementation of this program (assuming it was not needed for 
maintenance of the ozone or CO standard) as long as it was converted to 
a contingency measure meeting all the requirements of EPA redesignation 
policy. Section 175A(d) provides that each plan revision contain 
contingency provisions necessary to assure that the State will promptly 
correct any violation of the standard which occurs after the 
redesignation of the area to attainment. These provisions must include 
a requirement that the state will implement all measures which were 
contained in the SIP for the area before redesignation. There are four 
possible scenarios under which an area can submit a redesignation 
request: (1) Areas without operating I/M programs; (2) areas with 
operating I/M programs that continue operation without upgrades; (3) 
areas with operating I/M programs; and (4) areas with operating I/M 
programs that are discontinued. A detailed explanation of each scenario 
is in the proposal.
    NRDC commented that the CAA does not authorize conversion of I/M 
programs to contingency measures and that section 175A imposes a 
mandatory duty on an area that is redesignated to continue the emission 
control programs the area adopted prior to redesignation. NRDC further 
argued that failure to adopt regulations will result in more air 
pollution.
    EPA disagrees. Section 175A requires that the state ``promptly'' 
correct any violation of the standard, but does not mandate that the 
contingency measures be fully adopted programs. In contrast, section 
l72(c)(9) requires that contingency measures for nonattainment plans 
``take effect in any such case without further action by the State or 
the Administrator.'' Since 175A contains no such requirement that the 
contingency measures take effect without further action, it is clear 
that Congress did not intend to require contingency measures under 
section 175A to contain fully adopted programs. If an area did not 
require adoption or implementation of an I/M program in order to 
otherwise qualify to be redesignated to attainment, EPA believes it 
would be a wasteful exercise and impose needless costs to force states 
to go through full adoption of regulations only to have these 
regulations used as a contingency measure once the redesignation is 
approved.
    In today's action, it should be understood that, pursuant to 
section 175A(c), while EPA considers the redesignation request, the 
state shall be required to continue to meet all the requirements of 
this subpart. This includes the submission of another SIP revision 
meeting the existing requirements for fully adopted rules and the 
specific implementation deadline applicable to the area as required 
under 40 CFR 51.372 of the I/M rule. If the state does not comply with 
these requirements it shall be subject to sanctions pursuant to section 
l79. Because the possibility for sanctions exists, states which do not 
have a solid basis for approval of the redesignation request and 
maintenance plan shall proceed to fully prepare and plan to implement a 
basic I/M program that meets all the requirements of subpart S.
    The SIP revision must demonstrate that the performance standard in 
either 40 CFR 53.351 or 40 CFR 51.352 will be met using an evaluation 
date (rounded to the nearest January for carbon monoxide and July for 
hydrocarbons) seven years after the trigger date. Emission standards 
for vehicles subject to an IM240 test may be phased in during the 
program but full standards must be in effect for at least one complete 
test cycle before the end of the five year period. All other 
requirements shall take effect within 24 months of the trigger date. 
Furthermore, a state may not discontinue implementation of an I/M 
program until the redesignation request and maintenance plan (that does 
not rely on reductions from I/M) are finally approved. If the 
redesignation request is approved, any sanctions already imposed, or 
any sanctions clock already triggered, would be terminated.

Paperwork Reduction Act

    Today's rule places no information collection or record-keeping 
burden on respondents. Therefore, an information collection request has 
not been prepared and submitted to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act U.S.C. 3501 et seq.

Judicial Review

    Under section 307(b)(1) of the Act, EPA finds that these 
regulations are of national applicability. Accordingly, judicial review 
of this action is available only by the filing of a petition for review 
in the United States Court of Appeals for the District of Columbia 
within sixty days of publication of this action in the Federal 
Register.

Administrative Designation and Regulatory Analysis

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    It has been determined that this rule is not a significant 
regulatory action under the terms of Executive Order l2866 and is, 
therefore exempt from OMB review. This rule would only relieve states 
of some regulatory requirements, not add costs or otherwise adversely 
affect the economy.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant economic impact on a substantial number of small entities 
and, therefore, not subject to the requirement of a Regulatory Impact 
Analysis. A small entity may include a small government 
[[Page 1738]] entity or jurisdiction. A small government jurisdiction 
is defined as ``governments of cities, counties, towns, townships, 
villages, school districts, or special districts, with a population of 
less than 50,000.'' This certification is based on the fact that the I/
M areas impacted by the rule 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.''

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Motor vehicle pollution, Nitrogen oxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur Oxides, 
Volatile organic compounds.

    Dated: December 23, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble part 51 of title 40 of the 
Code of Federal Regulations is amended to read as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    l. The authority citation for part 51 is revised as follows:

    Authority: 42 U.S. C. 740l(a)(2), 7475(e), 7502(a) and (b). 
7503. 9601(a)(1) and 7602.

    2. Section 51.372 is amended by adding new paragraphs (c), (d) and 
(e) to read as follows:


Sec. 51.372  State implementation plan submissions.

* * * * *
    (c) Redesignation requests. Any nonattainment area that EPA 
determines would otherwise qualify for redesignation from nonattainment 
to attainment shall receive full approval of a State Implementation 
Plan (SIP) submittal under sections 182(a)(2)(B) or l82(b)(4) if the 
submittal contains the following elements:

    (1) Legal authority to implement a basic I/M program (or enhanced 
if the state chooses to opt up) as required by this subpart. The 
legislative authority for an I/M program shall allow the adoption of 
implementing regulations without requiring further legislation.
    (2) A request to place the I/M plan (if no I/M program is currently 
in place or if an I/M program has been terminated,) or the I/M upgrade 
(if the existing I/M program is to continue without being upgraded) 
into the contingency measures portion of the maintenance plan upon 
redesignation.
    (3) A contingency measure consisting of a commitment by the 
Governor or the Governor's designee to adopt regulations to implement 
the required I/M program in response to a specified triggering event. 
Such contingency measures must be implemented on the trigger date, 
which is a date determined by the State to be no later than the date 
EPA notifies the state that it is in violation of the ozone or carbon 
monoxide standard.
    (4) A commitment that includes an enforceable schedule for adoption 
and implementation of the I/M program, and appropriate milestones, 
including the items in paragraphs (a)(l)(ii) through (a)(l)(vii) of 
this section. In addition, the schedule shall include the date for 
submission of a SIP meeting all of the requirements of this subpart, 
excluding schedule requirements. Schedule milestones shall be listed in 
months from the trigger date, and shall comply with the requirements of 
paragraph (e) of this section. SIP submission shall occur no more than 
l2 months after the trigger date as specified by the State.
    (d) Basic areas continuing operation of I/M programs as part of 
their maintenance plan without implemented upgrades shall be assumed to 
be 80% as effective as an implemented, upgraded version of the same I/M 
program design, unless a state can demonstrate using operating 
information that the I/M program is more effective than the 80% level.
    (e) SIP submittals to correct violations. SIP submissions required 
pursuant to a violation of the ambient ozone or CO standard (as 
discussed in Sec. 51.372(c)) shall address all of the requirements of 
this subpart. The SIP shall demonstrate that performance standards in 
either Sec. 51.351 or Sec. 51.352 shall be met using an evaluation date 
(rounded to the nearest January for carbon monoxide and July for 
hydrocarbons) seven years after the trigger date. Emission standards 
for vehicles subject to an IM240 test may be phased in during the 
program but full standards must be in effect for at least one complete 
test cycle before the end of the 5-year period. All other requirements 
shall take effect within 24 months of the trigger date. The phase-in 
allowances of Sec. 51.373(c) of this subpart shall not apply.
[FR Doc. 95-254 Filed 1-4-95; 8:45 am]
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