[Federal Register Volume 60, Number 204 (Monday, October 23, 1995)]
[Proposed Rules]
[Pages 54321-54325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26202]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[FRL-5313-7]


Inspection/Maintenance Ozone Transport Region Flexibility 
Amendments

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes revisions to the motor vehicle 
Inspection/Maintenance (I/M) requirements by adding a special low 
enhanced performance standard for qualified areas in Ozone Transport 
Regions (OTR). EPA announced its intent to amend certain aspects of the 
I/M Program Requirements in December 1994 and held stakeholders' 
meetings on January 24, 1995 and January 31, 1995. A public hearing was 
held on May 17, 1995. Many of the comments received during that 
rulemaking came from OTR stakeholders who were concerned that the 
proposed changes did not address metropolitan areas in the OTR that 
were attainment, marginal, or moderate areas. Today's supplemental 
action proposes to create an additional performance standard which 
would apply to attainment, marginal and moderate areas in the OTR. The 
fundamental goal is to allow those OTR qualifying areas the flexibility 
to implement a broader range of I/M programs than is currently 
permitted.

DATES: Written comments on this proposal must be received no later than 
November 22, 1995. No public hearing will be held unless a request is 
received in writing by October 30, 1995.

ADDRESSES: Interested parties may submit written comments (in duplicate 
if possible) to Public Docket No. A-95-08. It is requested that a 
duplicate copy be submitted to Eugene J. Tierney 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 S.W., 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: Eugene J. Tierney, Office of Mobile 
Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth 
Road, Ann Arbor, Michigan, 48105. Telephone (313) 668-4456.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Summary of Proposal
III. Authority
IV. Background of the Proposed Amendment
V. Discussion of Major Issues
    A. Emission Impact of the Proposed Amendments
    B. Impact on Existing and Future I/M Programs
VI. Economic Costs and Benefits
VII. Public Participation
VIII. Administrative Requirements
    A. Administrative Designation
    B. Reporting and Recordkeeping Requirement
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Act

II. Summary of Proposal

    Under the Clean Air Act as amended in 1990 (the Act), 42 U.S.C. 
7401 et seq., the U.S. Environmental Protection Agency (EPA) published 
in the Federal Register on November 5, 1992 (40 CFR part 51, subpart S) 
rules related to plans for Motor Vehicle Inspection and Maintenance (I/
M) programs (hereafter referred to as the I/M rule; see 57 FR 52950). 
EPA is proposing today to further revise this rule to provide greater 
flexibility to certain Ozone Transport Region (OTR) areas.
    Section 182 of the Act is prescriptive regarding the various 
elements that are required as part of an enhanced I/M performance 
standard. It also provides states with flexibility in meeting the 
numerical performance standards for enhanced or basic I/M programs. 
States in the OTR have requested additional flexibility in implementing 
I/M in areas 

[[Page 54322]]
which are in attainment, which are areas designated and classified as 
marginal ozone areas or which are designated and classified as moderate 
ozone areas under 200,000 in population. These three types of areas 
would be exempt from I/M requirements but for their location in the 
Ozone Transport Region. These OTR areas are included in the Act to help 
achieve overall attainment and maintenance goals for the region, which 
includes serious, and severe ozone nonattainment areas.
    EPA is today proposing to establish an additional enhanced I/M 
performance standard for qualified areas in the Northeast OTR, 
hereafter referred to as the OTR low enhanced performance standard. The 
emission reduction targets for this program are less than both the low 
enhanced performance standard and the basic performance standard. There 
are two qualifications to be eligible for the OTR low enhanced 
performance standard. First, the standard would apply only in 
attainment areas, marginal ozone nonattainment areas and certain 
moderate ozone nonattainment areas under 200,000 in an OTR. Moderate 
areas of that size that were not previously required to, or had not in 
fact implemented, a basic I/M program under the pre-1990 Act could take 
advantage of the OTR low enhanced performance standard. Section 
182(a)(2)(B)(i) requires areas that had or were required to have I/M 
programs pre-1990 to retain programs of at least that stringency in 
their SIPs. Because, as explained below, EPA believes the Act requires 
an enhanced I/M program to be an enhancement over otherwise applicable 
I/M requirements, areas subject to basic I/M could not adopt the less 
stringent OTR low enhanced program. Any moderate area with urbanized 
areas having a total population of over 200,000 would also be required 
to implement basic I/M under section 182(b)(4) and would thus be 
ineligible for the OTR low enhanced standard. Second, the OTR low-
enhanced program must be supplemented by other measures in order to 
achieve the emission reductions that would have occurred had a regular 
low-enhanced I/M program been implemented (as defined by Sec. 51.351(g) 
of 40 CFR). This is because the primary goal of the Act in establishing 
the OTR provisions and requiring enhanced I/M in areas with a 
population of 100,000 or more in the OTR was to contribute to regional 
attainment and EPA believes that an area should be able to qualify for 
the additional flexibility provided under the OTR low enhanced standard 
only if it achieves in some other way, the additional reductions that 
the otherwise applicable low-enhanced I/M program would achieve. Thus, 
the total emission reductions from the I/M program plus the additional 
measures would have to equal the tonnage reduction that a regular low-
enhanced program would have generated. However, since local reductions 
are not the crucial factor, a state may bubble surplus reductions from 
other areas not required to implement I/M in the state. For example, a 
state could implement a statewide reformulated gasoline (RFG) program 
(note that EPA has recently asked for comment on whether attainment 
areas can opt in to the reformulated gasoline program and a decision 
has not yet been made on this issue) plus an OTR low enhanced program 
in subject areas or statewide and potentially achieve comparable 
reductions to a regular low enhanced program because of the additional 
reductions RFG would achieve in areas not otherwise required to have 
RFG. Equality of emission reductions must be demonstrated over a time 
period which aligns with the attainment deadlines of all OTR areas: 
from 2000 through 2007. Note that an I/M program that meets an OTR low 
enhanced performance standard must be implemented even if other 
measures could achieve comparable emission reductions because the Act 
specifically requires an enhanced I/M program in metropolitan areas 
with 100,000 population in the OTR. Measures to fill the gap between 
OTR low and regular low enhanced I/M may not be otherwise required by 
the Clean Air Act. EPA invites comment on whether and how a state may 
use credits obtained through an Open Market Trading program to satisfy 
the equal reduction requirement.
    The OTR low enhanced performance standard model program is composed 
of the following elements: annual testing of 1968 and newer light duty 
vehicles and light duty trucks, OBD checks for 1996 and newer vehicles, 
remote sensing of 1968-1995 vehicles, catalyst checks on 1975 and newer 
vehicles, and PCV valve checks on pre-1975 vehicles. These elements 
collectively satisfy the Act's requirements that the enhanced I/M 
program performance standard include certain listed features.
    The emission reduction targets generated by this model program 
cannot be precisely modeled at this time but EPA estimates the targets 
to be less than those for the basic I/M program standard (which are 
approximately 6.3% for HC, 10.8% for CO, and 0.7% for NOX). As 
soon as EPA completes development of guidance on remote sensing 
credits, an analysis of the emission reduction targets generated by 
this model program will be placed in the docket. In that the OTR low 
enhanced standard is less than basic I/M, the question arises as to how 
this standard meets the requirement of the Act for ``enhanced'' I/M. 
There are two important facts to consider in this regard: first, 
neither the Act nor the legislative history specifies that the emission 
reduction targets for enhanced I/M must be greater than basic in all 
cases. EPA believes the Act provides the agency latitude in 
establishing multiple performance standards to meet a wide range of 
state and local needs and conditions. Second, the areas eligible to 
take advantage of this performance standard were not required to nor 
did they implement I/M programs prior to 1990. So, in all cases, this 
standard establishes a program target that is enhanced relative to what 
was present or required for the area before enactment of the 1990 
Amendment or is otherwise required after the 1990 Amendments.
    As is the case with all performance standard model programs, EPA 
does not necessarily recommend implementation of the model program, 
since it is constrained in composition by law (e.g., EPA recommends not 
testing cars until they reach 4 years of age and recommends biennial 
testing as more cost-effective; by contrast, the enhanced I/M 
performance standards are required by the Act to reflect a model 
program that includes annual testing of all vehicles). In that the 
emission reduction targets for this performance standard are below the 
basic level, this standard provides the broadest possible latitude in 
program design. For example, some states in the OTR have existing 
decentralized, safety inspection programs. Comprehensive visual checks 
of emission control devices, a gas cap pressure test, the Act-mandated 
OBD check, and the Act-mandated on-road testing could be added to these 
programs. Many other possibilities exist for program designs that could 
meet this performance standard.
    While the proposed OTC low enhanced performance standard is less 
demanding than the existing performance standard applicable to the 
affected areas, the proposed regulatory changes will ensure that 
enhanced I/M programs in these areas meet statutory criteria for EPA 
approval. A state's OTR low enhanced program is required, under 
Sec. 182(c)(3)(C) of the Clean Air Act, to include computerized 
analyzers and on-road testing devices; computerized equipment and on-
road testing devices are required by the 

[[Page 54323]]
current rule and apply to the OTR low-enhanced program. A state's OTR 
low-enhanced program shall also include a regulatory framework for 
waivers, if waivers are to be issued, and an enforcement system through 
registration denial; the proposed amendments leave requirements in this 
regard the same as for other enhanced I/M areas. As mandated by the 
Act, in an OTR low enhanced program, vehicle emissions shall be tested 
annually unless biennial testing will equal or exceed the reductions 
that can be obtained from annual inspections. A program could combine 
biennial inspections on the vehicles equipped with OBD with biennial 
evaporative system checks to achieve the necessary additional 
reductions. The OTR low-enhanced program shall operate on a centralized 
basis, unless an alternative program with decentralized inspections 
meets the same performance standard. The performance standard itself is 
based on centralized inspections of OBD-equipped vehicles and on-road 
remote sensing testing; EPA believes that this meets the specific 
requirement that the performance standard be based on centralized 
testing.
    Also, today's proposal would establish quality assurance 
requirements for OTR low enhanced I/M programs that are commensurate 
with the emission reductions the programs are intended to achieve. In 
particular, current rules require enhanced I/M programs to be evaluated 
by conducting test-only IM240s on a random representative sample of the 
fleet (a minimum of 0.1%) to verify that the emission reductions are 
occurring. EPA believes that the emission reductions from an OTR low 
enhanced program are small enough that this level of effort is not 
necessarily justified. Also, the routine quality assurance requirements 
are also not necessarily appropriate in light of the low level of 
benefits of the program.
    EPA also proposes to modify the exclusion rule for counties within 
MSAs in the Ozone Transport Region. The modification would allow states 
to exclude counties that comprise less than 1% of the population of the 
MSA. Inclusion of such a small fraction of the population is not worth 
the significant cost of expanding geographic coverage of the program to 
include such a county.
    EPA proposes that the implementation date for full testing in areas 
opting for the OTR low performance standard be no later than the latest 
date, by which full testing can commence and still achieve sufficient 
reductions to meet the performance standard by the Act's attainment and 
reasonable further progress deadlines including the end of 1999 
attainment date for serious ozone nonattainment areas. This will 
generally mean a start date no later than January 1, 1999, for annual 
testing programs, although EPA proposes to accept field testing 
commencing as late as July 1, 1999 if the full I/M reductions can be 
achieved by the serious areas attainment date. Note that the 
performance standard model program assumes a start date of January 1, 
1999 because EPA believes Congress intended that the performance 
standard be based on at least one complete annual test cycle. With the 
requirement to offset the emissions difference between OTR low and 
regular low enhanced, this date ensures that attainment in the region 
is not impaired.
    EPA's proposal would also serve to provide other flexibilities to 
non-OTR states in designing quality assurance programs. The intent is 
to allow alternative quality assurance procedures that are as effective 
or better than those specified in the rule.

III. Authority

    Authority for the action 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.).

IV. Background of the Proposed Amendments

    The features of the enhanced I/M performance standard model program 
are used to generate the minimum performance target that a state must 
meet. When programmed into the most current version of EPA's mobile 
source emission factor model (hereafter referred to as MOBILE5a), these 
features produce a target emission factor (emissions per mile of 
vehicle travel) which a state's proposed program must not exceed to be 
deemed minimally acceptable for purposes of state implementation plan 
(SIP) approval. This combination of features, however, does not 
constitute either a required or recommended program design. The use of 
the performance standard approach allows EPA to meet Congress's dual 
statutory requirements that the EPA develop a performance standard 
based on certain statutory features and that the standard provide 
states with maximum flexibility to design I/M programs to meet local 
needs.
    EPA maintains that the Act in no way bars it from establishing more 
than one enhanced I/M performance standard. EPA believes that precedent 
exists for the adoption of multiple enhanced I/M performance standards, 
tailored to the unique needs of certain areas, and points to the case 
of El Paso, Texas, for which a separate, enhanced I/M performance 
standard was created [57 FR 52989, Sec. 51.351 (e)]

V. Discussion of Major Issues

A. Emission Impact of the Proposed Amendments

    EPA is still in the process of evaluating the emission impact of 
the OTR enhanced I/M performance standard. The evaluation process is 
based on a number of inputs, including credits awarded for RSD, and is 
modeled using MOBILE5a and national average values for vehicle age mix, 
mileage accumulation, and other area and fleet related variables. Once 
EPA finalizes RSD credits, an analysis of the emission reduction 
targets generated by this model program will be placed in the docket. 
The emission impact of the OTR enhanced performance standard is 
expected to be neutral since the proposed change would not reduce the 
total emission reductions that states must achieve. The scope of this 
change is also limited to attainment areas, marginal ozone areas, and 
certain moderate ozone areas below 200,000 population in the Ozone 
Transport Region.

B. Impact on Existing and Future I/M Programs

    Only states that choose to utilize the proposed OTR performance 
standard will be affected by today's proposal. 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. Each case is likely to 
be different, depending upon the magnitude of the change. It is 
important to note that today's proposal in no way increases the 
existing burden on states. States that currently comply, or are in the 
process of complying, with the existing I/M rule would only be affected 
by today's rule revisions if they so choose. Today's proposed 
amendments represent opportunities for those states that can meet the 
criteria set forth in today's proposal; under no circumstances are 
these proposed opportunities to be construed as mandatory obligations.

VI. Economic Costs and Benefits

    Today's proposed revisions provide states additional flexibility 
that lessens rather than increases the potential 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. 

[[Page 54324]]


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-95-08.

VIII. Administrative Requirements

A. Administrative Designation

    It has been determined that this proposed amendment to the I/M rule 
is not a significant regulatory action under the terms of Executive 
Order 12866 and 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 does the 
proposed amendment create an annual effect on the economy of $100 
million or more or otherwise adversely affect the economy or the 
environment. It is not inconsistent with nor does it interfere with 
actions by other agencies. It does not alter budgetary impacts of 
entitlements or other programs, and it does not raise any new or 
unusual legal or policy issues.

B. Reporting and Recordkeeping Requirement

    There are no information requirements in this supplemental proposed 
rule which require the approval of the Office of Management and Budget 
under the Paperwork Reduction Act 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this proposal will not 
have a significant economic impact on a substantial number of small 
entities and, therefore, is not subject to the requirement of a 
Regulatory Impact Analysis. A small entity may include a small 
government entity or jurisdiction. 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 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.'' Furthermore, the 
impact created by the proposed action does not increase the pre-
existing burden 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 Section 205, EPA must select the most cost-effective and least 
burdensome alternative that achieves the objective of the rule and is 
consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly impacted by the rule.
    To the extent that the rules being proposed by this action would 
impose any mandate at all as defined in Section 101 of the Unfunded 
Mandates Act upon the state, local, or tribal governments, or the 
private sector, as explained above, this proposed rule is not estimated 
to impose costs in excess of $100 million. Therefore, EPA has not 
prepared a statement with respect to budgetary impacts. As noted above, 
this rule offers opportunities to states that would enable them to 
lower economic burdens from those resulting from the currently existing 
I/M rule.

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Transportation.

    Dated: October 3, 1995.
Carol M. Browner,
Administrator.

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

PART 51--[AMENDED]

    1. The authority citation for Part 51 continues to read as follows:

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

    2. Section 51.350 is amended by revising paragraphs (b)(1) and 
adding (b)(5) to read as follows:


Sec. 51.350  Applicability.

* * * * *
    (b) Extent of area coverage. (1) In an ozone transport region, the 
program shall cover all counties within subject MSAs or subject 
portions of MSAs, as defined by OMB in 1990, except largely rural 
counties having a population density of less than 200 persons per 
square mile based on the 1990 Census and counties with less than 1% of 
the population in the MSA may be excluded provided that at least 50% of 
the MSA population is included in the program. This provision does not 
preclude the voluntary inclusion of portions of an excluded county. 
Non-urbanized islands not connected to the mainland by roads, bridges, 
or tunnels may be excluded without regard to population.
* * * * *
    (5) Notwithstanding the limitation in paragraph (b)(3) of this 
section, in an ozone transport region, states which opt for a program 
which only meets the performance standard described in Sec. 51.351(h) 
of this part, may apply a geographic bubble covering areas in the state 
not otherwise subject to an I/M requirement to achieve emission 
reductions from other measures equal to or greater than what would have 
been achieved if the low enhanced performance standard were met in the 
subject I/M areas. Emissions reductions from non-I/M measures shall not 
be counted towards the OTR low enhanced performance standard.
* * * * *
    3. Section 51.351 is amended by adding paragraph (h) to read as 
follows:


Sec. 51.351   Enhanced I/M performance standards.

* * * * *
    (h) Ozone Transport Region Low-Enhanced Performance Standard. An 
attainment area, marginal ozone area, or moderate ozone area with a 
1980 Census population of less than 200,000 in the urbanized area, in 
an ozone transport region, that is required to implement enhanced I/M 
under section 184(b)(1)(A) of the Clean Air Act, but was not previously 
required to or did not in fact implement basic I/M under the Clean Air 
Act as enacted prior to 1990 and is not subject to the requirements for 
basic I/M programs in this subpart, may select the performance standard 
described below in lieu of the standard described in paragraph (f) or 
(g) of this section as long as the difference in emission reductions 
between the program described in paragraph (g) and this paragraph are 
made up with other measures, as provided in Sec. 51.350(b)(5). 
Offsetting measures shall not include those otherwise required by the 
Clean Air Act in the areas from which credit is bubbled. The program 
elements for this 

[[Page 54325]]
alternate OTR enhanced I/M performance standard are:
    (1) Network type. Centralized testing.
    (2) Start date. January 1, 1999.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and newer vehicles.
    (5) Vehicle type coverage. Light duty vehicles, and light duty 
trucks, rated up to 8,500 pounds GVWR.
    (6) Exhaust emission test type. Remote sensing measurements on 
1968-1995 vehicles; on-board diagnostic system checks on 1996 and newer 
vehicles.
    (7) Emission standards. For remote sensing measurements, a carbon 
monoxide standard of 7.5% (with at least two separate readings above 
this level to establish a failure).
    (8) Emission control device inspections. Visual inspection of the 
catalytic converter on 1975 and newer vehicles and visual inspection of 
the positive crankcase ventilation valve on 1968-1974 vehicles.
    (9) Waiver rate. A 3% waiver rate, as a percentage of failed 
vehicles.
    (10) Compliance rate. A 96% compliance rate.
    (11) Evaluation dates. 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, 2000, 2003, 2006, and 2007. Equality of 
substituted emission reductions to the benefits of the low enhanced 
performance standard must be demonstrated for the same evaluation 
dates.
    4. Section 51.353 is amended by adding paragraph (c)(5) to read as 
follows:


Sec. 51.353  Network type and program evaluation.

* * * * *
    (c) * * *
    (5) Areas that qualify for and choose to  implement  an  OTR  low  
enhanced  I/M program, as established in Sec. 51.351(h), that achieves 
less emission reduction credit than the basic performance standard for 
one or more pollutants are exempt from the requirements of paragraphs 
(c)(1) through (c)(4) of this section. The reports required under 
Sec. 51.366 of this part shall be sufficient in these areas to satisfy 
the requirements of Clean Air Act for program reporting.
* * * * *
    5. Section 51.364 is amended by adding paragraphs (e) and (f) to 
read as follows:


Sec. 51.364  Enforcement against contractors, stations and inspectors.

* * * * *
    (e) Alternative quality assurance procedures or frequencies that 
achieve equivalent or better results may be approved by the 
Administrator. Statistical process control shall be used whenever 
possible to demonstrate the efficacy of alternatives.
    (f) Areas that qualify for and choose to implement an OTR low 
enhanced I/M program, as established in Sec. 51.351(h) of this part, 
that achieves less emission reduction credit than the basic performance 
standard for one or more pollutants are not required to meet the 
oversight specifications of this section.
    6. Section 51.373 is amended by adding paragraph (f) to read as 
follows:


Sec. 51.373  Implementation deadlines.

* * * * *
    (f) Areas that choose to implement an enhanced I/M program only 
meeting the requirements of Sec. 51.351(h) of this subpart shall fully 
implement the program no later than July 1, 1999. The availability and 
use of this late start date does not relieve the area of the obligation 
to meet the requirements of Sec. 51.351(h)(11).

[FR Doc. 95-26202 Filed 10-20-95; 8:45 am]
BILLING CODE 6560-50-P