ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [FRL-5889-1] Minor Amendments to Inspection Maintenance Program Evaluation Requirements AGENCY: Environmental Protection Agency ACTION: Notice of proposed rulemaking SUMMARY: This document proposes revisions to 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 proposed rule change is to allow states additional flexibility to use not only IM240 but other approved alternative methodologies for their program evaluation. This proposal 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 proposal 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. This proposal 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. Lastly, through this document, EPA requests that other states that would like to take advantage of the flexibility proposed today review their implementation plans for any language that conflicts with these proposed changes. Such language will need to be amended and the amendment submitted as a SIP revision once today's proposed action becomes final. DATES: Written comments on this proposal must be received no later than [insert date 30 days after publication in the FEDERAL REGISTER]. No public hearing will be held unless a request is received in writing by [insert date 15 days after publication in the FEDERAL REGISTER]. ADDRESSES: Interested parties may submit written comments (in duplicate if possible) to Public Docket No.A-97-46. It is requested that a duplicate copy be submitted to Tracey Bradish 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: Tracey Bradish, Office of Mobile Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann Arbor, Michigan, 48105. Telephone (313) 668-4239. SUPPLEMENTARY INFORMATION: I. Table of Contents II. Summary of Proposal III. Authority IV. Background of the Proposed Amendments V. Discussion of Major Issues A. Emission Impact of the Proposed Amendments B. Impact on Existing and Future I/M Programs VI. Economic Costs and Benefits VII. Public Participation VIII. Administrative Requirements A. Administrative Designation B. Reporting and Recordkeeping Requirement C. Regulatory Flexibility Act D. Unfunded Mandates Act 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) a rule related to state air quality implementation plans for Motor Vehicle Inspection and Maintenance (I/M) programs (hereafter referred to as the I/M rule; see 57 FR 52950). EPA is proposing today to further revise this rule to provide greater flexibility to states in conducting program evaluation. This proposed rulemaking proposes to: 1) amend 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 be performed only by conducting mass emission transient testing (METT), 2) create a new evaluation requirement at 40 CFR 51.353(c) that will instead require 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) amend the requirement that the program evaluation tests be conducted "at the time 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) delete 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, 52.2026(a)(2), 40 CFR part 52, subpart V, 52.2450(b)(2), and 40 CFR part 52, subpart I, 52.424(b), respectively) that require submission of program evaluation regulations under the existing I/M rule, and 5) impose a new condition on Pennsylvania's, Virginia's, and Delaware's I/M approvals that will require them to submit I/M regulations 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, if commitments are submitted by October 15, 1997 to submit such regulations within such time frame. The I/M rule currently requires 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. This proposed action revises the current rule to allow states the option of using an approved, alternative, sound methodology for their program evaluation. This proposed 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. Today's proposed 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 practical benefits of developing a sound evaluation methodology that does not rely on METT. Today's proposal, 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. Today's proposed amendments 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 proposed amendments, 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 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 proposed amendments broaden the program evaluation requirement to include other sound evaluation methodologies, it is also appropriate to propose withdrawing these METT-based program evaluation conditions on the interim approval notices for Virginia and Pennsylvania. In place of these original conditions, EPA proposes to impose new conditions that will require the commonwealths instead to submit program evaluation regulations that meet the more flexible requirements of the amended 40 CFR 51.353(c). 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 proposed amendments. To take advantage of this deadline extension, it is necessary for EPA to also amend the Federal Register notice conditionally approving the Delaware I/M SIP. All three -- Delaware, Virginia, and Pennsylvania -- must submit a commitment by October 15, 1997, to adopt and submit the required evaluation methodology requirements by November 30, 1998 in order to support EPA's imposition of the new proposed conditions under section 110(k)(4) of the Act. Of the three above SIP approval notices, only Virginia's requires the Commonwealth to meet its METT-based program evaluation condition before EPA will be able to finalize today's proposed action. The current deadline for Virginia's meeting this condition is September 15, 1997, which is based upon a commitment made by the Commonwealth prior to EPA's decision to revise the program evaluation requirement. The September 15, 1997 date does not reflect the full twelve month period available under the statute for meeting conditions which, in the case of Virginia, would be May 15, 1998. Virginia has recently committed to submit program evaluation provisions meeting the existing I/M rule by May 15, 1998 should EPA fail to take final action on today's proposal. For these reasons, EPA is taking an interim final action elsewhere in this Federal Register to extend the deadline for Virginia's existing program evaluation condition to May 15, 1998. EPA believes it is appropriate to take such action without prior public notice and comment because it would be contrary to the public interest to require Virginia to comply with a condition based on a requirement that EPA has proposed to amend, and because Virginia's recent commitment is consistent with the statute. Lastly, it may be necessary for some states to amend their currently approved I/M SIPs to take advantage of today's proposed flexibilities. EPA therefore requests that such states review their enhanced I/M SIPs for any language that may conflict with today's proposed changes. Such language will need to be amended and the amendment submitted as a SIP revision once today's proposed action becomes final. III. Authority Authority for the rule change proposed in this notice is granted to EPA by section 182 of the Clean Air Act as amended (42 U.S.C. 7401, et seq.). 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. Background of the Proposed Amendments Section 182(c)(3)(C) of the 1990 Clean Air Act required that enhanced I/M programs "biennially prepare a report to the Administrator which assesses the emission reductions achieved by the program...based on data collected during inspection and repair of vehicles. The methods used to assess the emission reductions shall be those established by the Administrator." EPA established the criteria for this program evaluation under section 51.353(c) of the original I/M rule (November 5, 1992). As originally promulgated, the program evaluation was to include state administered or monitored program evaluation tests on a random, representative sample of at least 0.1 percent of the annual subject vehicle population. The program evaluation tests included measuring the gram-per-mile tailpipe emissions of this sample using the IM240. Alternative, equivalent METTs were allowed in place of the IM240, but these had to be approved by EPA. The results of the program evaluation testing were to be reported every two years, beginning with the second anniversary of program start up. The IM240 was originally selected as the basis for program evaluation because of its high degree of correlation to the Federal Test Procedure (FTP), the one test method that all vehicles have in common due to its use in the vehicle certification process. Both the FTP and the IM240 are METTs, which means that they measure the actual mass of emissions produced by a vehicle (in terms of grams per mile) as opposed to simply measuring the concentrations of those emissions. METTs like the IM240 and FTP also simulate real world driving conditions by testing the vehicle over the course of a driving cycle covering a wide range of speeds and operating conditions. This is especially important in determining a vehicle's precise emissions output, since most on-road vehicles emit different amounts depending upon their operating conditions. Of these two METTs, the IM240 was deemed to be the most cost effective for use as a program evaluation method. Furthermore, at the time the I/M rule was promulgated in 1992, it was anticipated that most programs subject to the enhanced I/M requirement would opt to use IM240 as part of their routine testing program. Therefore, requiring additional, state administered or monitored IM240s to confirm the overall program's effectiveness did not require states to invest in additional, program evaluation testing equipment and did not call for the development of an alternative program evaluation testing methodology. On November 28, 1995, President Clinton signed the National Highway System Designation Act of 1995 (NHSDA). Section 348 of this legislation addressed I/M program requirements, and specifically prohibited EPA from mandating the "adoption or implementation by a State of a test-only IM240 enhanced vehicle inspection and maintenance program as a means of compliance with" the Clean Air Act. Nevertheless, EPA has determined that additional flexibility is desirable in the program evaluation area as well, to better accommodate the wider range of enhanced I/M program designs states are in the process of adopting and implementing under both the NHSDA and EPA's previous I/M flexibility amendments, and which were not anticipated at the time the original program evaluation criteria were promulgated. Furthermore, EPA now believes that alternative, sound methods for meeting the Clean Air Act's program evaluation requirement may exist, and the Agency intends to work with states and other interested parties during the proposed period of delay in evaluation requirements to identify and approve these alternatives. EPA is therefore proposing to provide greater flexibility in two specific areas with regard to these criteria. The first is to broaden the universe of potentially acceptable program evaluation tests by changing the requirement from the IM240 or an approved, equivalent METT to the less prescriptive, and more innovation-friendly requirement for a "sound evaluation methodology." Second, to give EPA and the states time to evaluate potential alternative methodologies, EPA is proposing to delay the start up of the mandatory evaluation program to no later than November 30, 1998. EPA believes that postponing this requirement is a logical extension of the deadline deferment otherwise provided for or implicit in the flexibilities provided by the NHSDA and EPA's own I/M flexibility amendments. V. Discussion of Major Issues A. Emission Impact of the Proposed Amendments The program effectiveness evaluation does not itself produce emission reductions. Rather, the program evaluation is intended to confirm that emission reductions projected by modeling and claimed in the states' implementation plans have been achieved in actual practice. This evaluation assesses the effectiveness of the entire program, not just the test type being used. Should a shortfall be discovered between the credit claimed and the reductions actually achieved, the program evaluation is also used to define the extent of that shortfall. Therefore, the program evaluation measurement methodology has an impact on a state's ability to determine whether or not additional reductions are needed to achieve its clean air goals within the prescribed time frame. The evaluation may also demonstrate that a program is exceeding its reduction goals and therefore deserves additional credit. It is important to note that the Clean Air Act does not mandate the method to be used in evaluating program effectiveness. Instead, the responsibility for determining and approving the program evaluation methodology is delegated to the Administrator. Some states have already adopted or have indicated an intention to adopt the IM240 or some other, as-yet unapproved, equivalent mass-emission transient test for the purpose of performing the required program evaluation. Today's proposed action does not retract the Administrator's previous approval of the IM240, and it does not compel states that have chosen to use an approved METT as their program evaluation method to change to another, as-yet-undefined method. EPA believes that the IM240 and potentially other equivalent METTs provide a sound methodology for program evaluation. Furthermore, today's proposed action is not intended to eliminate the need for states to perform the program evaluation required by the Act; it does not change the fact that such evaluation must be based upon actual data as opposed to modeled projections. It also does not change the fact that EPA must approve the program evaluation methodology selected for any state program, as a SIP revision. Instead, today's proposed action is intended to broaden the range of potentially acceptable evaluation methods and delay the time for their implementation; it will also serve as an incentive for innovation in the development of such methods. Lastly, while today's proposed action will have the effect of delaying when the program effectiveness evaluation begins, it does not change when the first program evaluation report is due, which remains two years after the initial start date of mandatory testing. Thus, the first report will be based on only one year of data. Given this and the above, EPA concludes that today's proposed action will have no net impact on emission reductions. B. Impact on Existing and Future I/M Programs Only states that choose to utilize the additional flexibilities discussed in this notice will be affected by today's proposal to change the I/M rule. Modifications to a state's I/M program as a result of this rule change may require a SIP revision. 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 will only be affected by today's rule revisions if they so choose. Today's proposed amendments represent options for those states that choose to take advantage of the flexibilities proposed in today's notice. The specific changes of the program evaluation based conditions on Virginia, Pennsylvania, and Delaware also do not present an additional burden on those states. None is compelled to pursue the opportunities for flexibility that will be created by finalization of the proposed changes to their conditional approvals. Should any of the three states choose not to submit a new commitment consistent with the amended rule, EPA will retain in place the current condition for such state based on the existing state commitment, even while proceeding to change the I/M rule. VI. Economic Costs and Benefits Today's proposed revisions provide states additional flexibility that lessens rather than increases the potential economic burden on states choosing to take advantage of this regulation. Furthermore, states are under no obligation, legal or otherwise, to modify existing plans meeting the previously applicable requirements as a result of today's proposal. VII. Public Participation EPA desires full public participation in arriving at final decisions in this Rulemaking action. EPA solicits comments on all aspects of this proposal from all parties. Wherever applicable, full supporting data and detailed analysis should also be submitted to allow EPA to make maximum use of the comments. All comments should be directed to the Air Docket, Docket No. A-97-46. 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. This certification is based on the fact that the I/M areas impacted by the proposed rulemaking do not meet the definition of a small government jurisdiction, that is, "governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000." The enhanced I/M requirements only apply to urbanized areas with population in excess of either 100,000 or 200,000 depending on location. Furthermore, the impact created by the proposed action does not increase the preexisting burden of the existing rules which this proposal seeks to amend. D. Unfunded Mandates Act Under 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 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: September 2, 1997. Carol M. Browner, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended to read as follows: PART 51--[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. 2. Section 51.353 is amended by revising paragraphs (c)(3) and (c)(4) to read as follows: 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 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. 7401-7671q. 2. Section 52.2026 is amended by revising paragraph (a)(2) to read as follows: 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 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). * * * * * 3. Section 52.2450 is amended by revising paragraph (b)(2) to read as follows: 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: 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 the condition in paragraph (b)(3) of this section which addresses I/M program evaluation requirements. The 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. * * * * *