Amendments to Vehicle Inspection Maintenance Program Requirements
to Address the 8-Hour National Ambient Air Quality Standard for Ozone
[Federal Register: April 7, 2006 (Volume 71, Number 67)]
[Rules and Regulations]
[Page 17705-17712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap06-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2004-0095; FRL-8054-3]
RIN 2060-AM21
Amendments to Vehicle Inspection Maintenance Program Requirements
to Address the 8-Hour National Ambient Air Quality Standard for Ozone
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Today's action revises the Motor Vehicle Inspection/
Maintenance (I/M) regulation to update submission and implementation
deadlines and other timing-related requirements to more appropriately
reflect the implementation schedule for meeting the 8-hour National
Ambient Air Quality Standard (NAAQS) for ozone. This action is directed
specifically at those areas that will be newly required to implement I/
M as a result of being designated and classified under the 8-hour ozone
standard; the conditions under which an existing I/M program under the
1-hour ozone standard must continue operation under the 8-hour standard
are addressed through application of the Clean Air Act's anti-
backsliding provisions.
DATES: This rule is effective May 8, 2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2004-0095. All documents in the docket are listed on the http://
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
http://www.regulations.gov or in hard copy at the EPA Public
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW.,
Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m. Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: David Sosnowski, Office of
Transportation and Air Quality, Transportation and Regional Programs
Division, 2000 Traverwood, Ann Arbor, Michigan 48105. Telephone (734)
214-4823.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
II. Summary of Action
III. Authority
IV. Public Participation
A. Amendments to the I/M Performance Standards
B. Amendments to Program Evaluation Requirements
C. Amendments to Update SIP Submission Deadlines
V. Discussion of Major Issues
A. Impact on Existing I/M Programs
B. Impact on Future I/M Programs
VI. Economic Costs and Benefits
VII. Statutory and Executive Order Review
A. Executive Order 12866: Regulatory Planning and Review
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
K. Petitions for Judicial Review
II. Summary of Action
When the I/M rule was first published in November 1992, some of the
deadlines were expressed relatively (e.g., ``within X years of Y * * *'')
[[Page 17706]]
while others were set as explicit dates (e.g., ``no later than November
15, 1993 * * *''). Several of those explicit deadlines have since
passed or otherwise been rendered irrelevant due to actions such as the
revocation of the 1-hour ozone standard (the majority of deadlines
contained in the original 1992 I/M rule were linked to the 1-hour
standard and its associated milestones for attainment and interim
progress). Today's action finalizes the revisions to the I/M rule that
were proposed January 6, 2005 (70 FR 1314). These revisions are aimed
at such timing-related references as submission dates, start dates,
evaluation dates, and other milestones and/or deadlines and are being
made to make the I/M rule relevant for those areas that will be newly
required to begin I/M programs as a result of being designated and
classified under the 8-hour ozone standard.
This action does not revise or establish new requirements for
existing I/M programs that were established in response to the 1-hour
ozone standard. In general, if an existing I/M area was not able to
redesignate to attainment for the 1-hour ozone standard prior to
revocation of that standard (and is also designated as non-attainment
for the 8-hour standard, regardless of classification or subpart) then
that area is required to continue implementing an I/M program until it
has attained the 8-hour ozone standard under EPA's anti-backsliding
regulations promulgated to facilitate transition from planning for the
1-hour to the 8-hour ozone standard. Readers interested in learning
more about how the Clean Air Act's (Act or CAA) anti-backsliding
provisions apply to I/M under the 8-hour standard should consult 40 CFR
51.905 (``Transition from the 1-hour NAAQS to the 8-hour NAAQS and
anti-backsliding'') as well as the May 12, 2004 memorandum concerning
exceptions to the general anti-backsliding policy for certain
maintenance areas signed by Tom Helms and Leila Cook entitled ``1-Hour
Ozone Maintenance Plans Containing Basic I/M Programs,'' a copy of
which is contained in the docket for this rulemaking.
Upon becoming effective, today's action will: (1) Revise Sec. Sec.
51.351 and 51.352 (the basic and enhanced I/M performance standards) to
update the start date and model year coverage associated with specific
elements of the basic and enhanced I/M performance standards as well as
to set the benchmark comparison date(s) for performance standard
modeling purposes that better reflects milestones associated with the
8-hour ozone standard; (2) revise Sec. 51.353 (network type and
program evaluation) to make the deadline for beginning the first round
of program evaluation testing (which is currently listed as ``no later
than November 30, 1998'') a relative deadline keyed to the date of
program start up; (3) amend Sec. 51.360 (waivers and compliance via
diagnostic inspection) so that the deadline for establishing full
waiver limits for those basic I/M programs choosing to allow waivers
(currently, ``no later than January 1, 1998'') becomes ``January 1,
1998, or coincident with program start up, whichever is later''; (4)
update Sec. 51.372 (state implementation plan submissions) to set the
I/M SIP submission deadline for areas newly required to adopt I/M
programs under the 8-hour ozone standard as 1 year after the effective
date of today's action or 1 year after the effective date of
designation and classification under the 8-hour standard (whichever is
later); (5) update Sec. 51.373 (implementation deadlines) to establish
the implementation deadline for new I/M programs required under the 8-
hour standard as 4 years after the effective date of designation and
classification under the 8-hour ozone standard; and (6) revise Sec.
51.373 (implementation deadlines) to clarify that the deadline for
beginning OBD testing for areas newly required to implement I/M as a
result of being designated and classified under the 8-hour ozone
standard is ``coincident with program start up.''
III. Authority
Authority for the rule changes being made as a result of today's
action is granted to EPA by sections 182, 184, 187, and 118 of the
Clean Air Act as amended (42 U.S.C. 7401, et seq.).
IV. Public Participation
Written comments on the January 6, 2005 Notice of Proposed
Rulemaking (NPRM) were received from three sources prior to the close
of the public comment period on February 7, 2005. The commenters
included two state environmental agencies and one I/M testing
contractor. Several of the comments received fell well outside the
scope of the January 6, 2005 proposal and often requested additional
flexibility for existing I/M programs which EPA does not have the legal
authority to grant under the Clean Air Act as it is currently written.
These comments, while noted, will not be addressed in today's action.
No comments were received on the proposed amendments to the basic I/M
waiver requirements or implementation deadlines, and these amendments
will therefore be finalized as proposed. (For more information on these
amendments, please see the January 6, 2005 proposal, section IV(C),
``Amendments to the Basic I/M Waiver Requirements,'' and section IV(E),
``Amendments to Update Implementation Deadlines.'') The remaining
comments are summarized and responded to below, under the proposed
revision(s) to which they apply.
A. Amendments to the I/M Performance Standards
1. Summary of Proposal
EPA proposed to revise the basic I/M performance standard for areas
newly required to implement a basic I/M program as a result of being
designated and classified under the 8-hour ozone NAAQS as follows: (1)
Start date: Four years after the effective date of designation and
classification under the 8-hour ozone standard; \1\ (2) emission test
types: Model Year (MY) 1968-2000--idle, MY 2001 and newer--onboard
diagnostic (OBD) check; (3) evaluation date: six years after the
effective date of designation and classification under the 8-hour ozone
standard rounded to the nearest July. All other basic I/M performance
design elements remain the same as previously promulgated for 1-hour
ozone non-attainment areas (see 40 CFR 51.352). For areas newly
required to implement an enhanced I/M program as a result of being
designated and classified under the 8-hour ozone NAAQS, EPA proposed
establishing an 8-hour ozone enhanced I/M performance standard which
assumes the same program design elements as the current low enhanced I/
M performance standard defined at 40 CFR 51.351(g) but with the
following exceptions: (1) Start date: four years after the effective
date of designation and classification under the 8-hour ozone standard;
(2) emission test types: MY 1968-2000--idle, MY 2001 and newer--onboard
diagnostic (OBD) check; (3) evaluation dates: six years after the
effective date of designation and classification under the 8-hour ozone
standard rounded to the nearest July and the applicable attainment date
(as defined under 40 CFR 51.903), also rounded to the nearest July.
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\1\ For those 8-hour ozone nonattainment areas required to
implement I/M for the first time as a result of being designated and
classified on April 30, 2004 (with an effective date of June 15,
2004) this translates into a start date of no later than June 15, 2008.
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Per the proposal, a state's program would be considered in compliance
with the relevant 8-hour ozone I/M performance standard if it can
[[Page 17707]]
demonstrate through modeling that the proposed program will achieve the
same (or better) percent reduction in HC (and, for enhanced programs,
NOX) as achieved by the performance standard model program
based upon an evaluation date set to the six year anniversary of the
effective date of the area's designation and classification under the
8-hour ozone standard, rounded to the nearest July. Areas required to
implement enhanced I/M as a result of being designated and classified
under the 8-hour ozone standard also must demonstrate through modeling
that the same (or better) percent reduction as achieved under the six-
year anniversary milestone above is still being achieved as of the
first July following the area's applicable attainment date under the 8-
hour ozone standard. The intent of these proposed amendments was to tie
the performance standard deadlines to the date of an area's designation
and classification under the 8-hour ozone standard and to provide areas
newly required to implement I/M under that standard a level of
flexibility comparable to that currently available to areas required to
do I/M under the 1-hour ozone standard.
2. Summary of Comments
Both state commenters supported those elements of the proposal
aimed at providing I/M areas flexibility to adopt I/M programs that
rely primarily or wholly upon OBD-only testing of the OBD-equipped in-
use fleet. One I/M contractor objected to the proposed revisions to the
I/M rule's performance standard requirements. In their comments, the
contractor claimed that EPA's proposed revisions would essentially
eliminate the difference between basic and enhanced I/M. According to
this commenter, as a result of EPA's proposal, the primary difference
between the basic and enhanced performance standards would be that the
basic performance standard would actually be more rigorous with regard
to compliance and waiver rates--a difference which seemingly
contradicts the clear meaning of the words ``basic'' and ``enhanced,''
and runs contrary to Congressional intent. According to this commenter,
the enhanced performance standard (as proposed) would include only two
enhancements relative to the basic performance standard: (1) The
inclusion of on-road testing, as required by the CAA, and (2) the
inclusion of visual inspections that are largely redundant for OBD-
equipped vehicles. According to this commenter, the CAA requires all I/
M programs (and, by implication, all I/M performance standards) to
include OBD testing of OBD-equipped vehicles from MY 1996 and newer.
Therefore, EPA's proposal to limit OBD testing coverage in the basic
and enhanced performance standards to MY 2001 and newer vehicles is in
direct contradiction of the clear language of the Act. The commenter
concluded that EPA's proposed changes would artificially and
unreasonably lower existing I/M performance standards.
3. Response to Comments
EPA does not agree with the characterization that it's proposal
essentially eliminates the difference between basic and enhanced I/M.
Omitted from the differences cited in the comments provided is perhaps
the most significant statutory difference between basic and enhanced I/
M: The fact that enhanced I/M programs are required to include the
testing of light-duty trucks while basic I/M programs are not. This is
an important difference, especially in light of the significant growth
in the light-duty truck and Sport Utility Vehicle (SUV) markets since
passage of the Clean Air Act Amendments of 1990. It is because of this
difference that the proposed enhanced I/M performance standard for 8-
hour ozone non-attainment areas is and will continue to be
significantly more stringent than the proposed basic I/M performance
standard, even as the inclusion of OBD testing narrows the previous gap
between I/M tailpipe test types.
EPA also does not agree with the claim that the CAA requires all I/
M programs (and, by implication, all I/M performance standards) to
include OBD testing of MY 1996 and newer, OBD-equipped vehicles. While
the CAA does require all I/M programs to include OBD testing and the
repair of vehicles that fail the OBD test, it does not specify model
year coverage, nor does it suggest that I/M programs test all such
vehicles without exception. Further, the statute does not explicitly
require the inclusion of OBD testing as part of the performance
standards. In fact, to require such comprehensive testing coverage in
the performance standards would effectively bar states from exempting
the newest such vehicles from testing, even though the statistical
likelihood that such vehicles will fail the test and require repair is
exceedingly small. Such a requirement would also all but eliminate the
states' ability to otherwise tailor I/M programs to meet local needs.
Lastly, suggesting that the CAA requires EPA to adopt the most rigorous
performance standards possible ignores the Act's mandate that states be
allowed flexibility in designing their I/M programs and also
contradicts a DC Circuit Court's ruling in which the court found ``* *
* it clear that the statute does not mandate that the EPA set the most
stringent possible annual performance standard. With its repeated
emphasis on state flexibility, echoed in the legislative history, see
S. Rep. No. 101-228, 101st Cong., 2d Sess. 39, reprinted in 1990
U.S.C.C.A.N. 3425, the statute appears to place a premium on state
ability to shuffle aspects of the program to meet the EPA's
requirements and individual state needs * * *. Implicitly, at least,
Congress thus appears to have contemplated considerable EPA discretion
in standard-setting'' (Natural Resource Defense Council, Inc. v. EPA,
92-1535--DC Cir. 1994).
Given EPA's conclusion that the only objections raised with regard
to this portion of EPA's proposal were inaccurate in both their
substance and conclusions, today's action finalizes the January 6, 2005
I/M performance standard revisions as proposed.
B. Amendments to Program Evaluation Requirements
1. Summary of Proposal
Section 182(c)(3)(C) of the 1990 CAA requires that each state
subject to enhanced I/M shall ``biennially prepare a report to the
Administrator which assesses the emission reductions achieved by the
program required under this paragraph based upon data collected during
the inspection and repair of vehicles. The methods used to assess the
emission reductions shall be those established by the Administrator.''
Section 51.353 of EPA's current I/M rule (network type and program
evaluation) provides additional detail on how this requirement is to be
met, including minimum sampling requirements and specific deadlines by
which program evaluation testing must begin. Currently, Sec.
51.353(c)(4) of the I/M rule specifies that the first round of program
evaluation testing is to begin ``no later than November 30, 1998,''
which EPA proposed to change to ``no later than 1 year after program
start-up.''
2. Summary of Comments
Although EPA did not receive comment on the specific amendment
proposed for this section of the I/M rule, one commenter did comment on
program evaluation in general, requesting that EPA provide ``* * *
[c]larification of program evaluation and program evaluation sampling
requirements, particularly as applied to programs utilizing test procedures
[[Page 17708]]
specified in applicable performance standards (i.e. IM240 and/or OBD).
Illinois is currently collecting mass emissions data (full-term IM240)
on 0.1% of 1981 and newer vehicles, including 1996 and newer vehicles
subject to OBD. This evaluation testing (particularly on OBD-equipped
vehicles) has proven to be somewhat controversial and unpopular with
vehicle owners.''
3. Response to Comments
Given that the comment in question does not address the proposal
under consideration, today's action will finalize the amendment as
proposed. Concerning the request for additional guidance and
clarification with regard to the program evaluation requirements in
general--and with regard to OBD-equipped vehicles in particular--EPA
will take this request into consideration in its development of future
I/M guidance.
C. Amendments to Update SIP Submission Deadlines
1. Summary of Proposal
EPA proposed to update Sec. 51.372 (State Implementation Plan
submissions) to clarify that areas newly required to implement I/M as a
result of being designated and classified under the 8-hour ozone
standard are required to submit their I/M SIPs, whether basic or
enhanced, within 1 year after the effective date of today's action,
i.e., May 8, 2007. For areas newly designated as non-attainment under
the 8-hour ozone standard after the effective date of today's action,
EPA proposed that those areas submit their I/M SIPs within 1 year of
the effective date of their designation and classification.
2. Summary of Comments
One state commenter objected to the proposed SIP submission
deadlines, maintaining that EPA's publication schedule and the State's
own administrative procedures requirements will make it all but impossible
to promulgate the necessary regulations before the summer of 2007.
3. Response to Comments
Based upon its experience with the submission of I/M SIPs in
response to the 1990 Act's requirements for 1-hour I/M programs, EPA
considers the proposed 1 year timeframe a reasonable amount of time in
which to develop and submit an I/M SIP, given the states' need to
secure legal authority, develop implementing regulations, provide
notice-and-comment opportunity, etc. As noted by EPA both in it's
general preamble published after the 1990 amendments to the Act and in
the 1992 I/M rules (57 FR 13498, 13517 and 57 FR 52950, 52970,
respectively) EPA has long believed that one year is an appropriate
time period for states to obtain necessary legislative authority to
adopt and submit an I/M program. EPA will therefore finalize this
section of the January 6, 2005 notice as proposed.
V. Discussion of Major Issues
A. Impact on Existing I/M Programs
Today's action does not change the requirements that currently
apply to existing I/M programs adopted as a result of an area being
classified under the 1-hour ozone standard. Readers interested in
learning the conditions under which an existing 1-hour I/M program must
continue operation under the 8-hour standard should consult 40 CFR
51.905 (``Transition from the 1-hour NAAQS to the 8-hour NAAQS and
anti-backsliding'').\2\
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\2\ Additional guidance on anti-backsliding under the 8-hour
standard and how it applies to certain basic I/M programs can be
found in the May 12, 2004 memo signed by Tom Helms, Ozone Policy and
Strategies Group, and Leila Cook, State Measures and Conformity
Group, entitled ``1-Hour Ozone Maintenance Plans Containing Basic I/M
Programs,'' a copy of which is contained in the docket for this rulemaking.
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B. Impact on Future I/M Programs
Today's action is intended specifically for those areas which
currently do not perform I/M testing, but will be required to do so as
a result of being designated and classified under the 8-hour ozone
standard. Upon becoming effective, these amendments will allow future
I/M program areas the flexibility necessary to design from the ground
up reasonable, cost effective, motorist-friendly I/M programs that take
full advantage of advances in vehicle and vehicle-testing technology,
as well as fleet turnover.
VI. Economic Costs and Benefits
Today's action provides areas new to I/M under the 8-hour ozone
standard the ability to adopt more cost effective and efficient
programs than would otherwise be the case. This action will therefore
lessen rather than increase the potential economic burden on states of
implementing such programs. Furthermore, this rule does not affect
existing state programs meeting the previously applicable requirements.
VII. Statutory and Executive Order Review
A. Executive Order 12866: Regulatory Planning and Review
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 otherwise 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 entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is a ``significant regulatory action''
within the meaning of the Executive Order. EPA has submitted this
action to OMB for review. Changes made in response to OMB suggestions
or recommendations will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
because it does not change the pre-existing information collection
requirements for I/M programs. The Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations (40 CFR part 51, subpart S) under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2060-0252, EPA ICR number 1613.02.
A copy of the OMB approved Information Collection Request (ICR) may be
obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW.,
Washington, DC 20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and
[[Page 17709]]
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the Agency certifies the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR 121.); (2) a
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
will not impose any requirements on small entities. This action will
impact States, not small entities. Furthermore, the action will lessen
rather than increase the potential economic burden on the States of
implementing such programs. In addition, States are under no
obligation, legal or otherwise, to modify existing plans meeting the
previously applicable requirements as a result of today's action.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
EPA has determined that this action itself does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The primary purpose of this action is
to amend the existing Federal I/M regulations to provide flexibility in
how the regulations cover areas newly designated non-attainment under
the 8-hour ozone ambient air quality standards. Clean Air Act sections
182(b)(4) and 182(c)(3) require the applicability of I/M to such areas.
Thus, although this action explains how I/M should be conducted, it
merely implements already established law that imposes I/M requirements
and does not itself impose requirements that may result in expenditures
of $100 million or more in any year. The intention of this action is to
improve the I/M regulation by implementing the rule in a more
practicable manner and/or to clarify I/M requirements that already
exist. None of these amendments impose any additional burdens beyond
that already imposed by applicable federal law; thus, today's action is
not subject to the requirements of sections 202 and 205 of the UMRA and
EPA has not prepared a statement with respect to budgetary impacts.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The Clean Air Act requires I/M
to apply in certain non-attainment areas as a matter of law, and this
action merely provides areas newly designated as non-attainment under
the 8-hour ozone standard additional flexibility with regard to meeting
their existing statutory obligations. Thus, Executive Order 13132 does
not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (59 FR 22951, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' The phrase ``policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
[[Page 17710]]
Today's amendments to the I/M rule do not significantly or uniquely
affect the communities of Indian tribal governments. Specifically,
today's action incorporates into the I/M rule flexible provisions
addressing newly designated 8-hour ozone non-attainment areas subject
to I/M requirements under the Act, and these provisions do not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Accordingly, the requirements of Executive Order 13175 are not
applicable to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
Today's action is not subject to Executive Order 13045 because it
is not economically significant within the meaning of Executive Order
12866 and does not involve the consideration of relative environmental
health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This rule is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this action is not likely
to have any significant adverse effects on energy supply.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's action does not involve technical standards. Therefore, the
use of voluntary consensus standards does not apply to this action.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit this final rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the final rule in the Federal Register. This rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2). This rule will be effective on
May 8, 2006.
K. Petitions 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 June 6, 2006. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes 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 a rule or action. This action may not be challenged later in
proceeding to enforce its requirements. (See section 307(b)(2) of the
Administrative Procedures Act.)
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Transportation.
Dated: March 31, 2006.
Stephen L. Johnson,
Administrator.
? For the reasons set out in the preamble, part 51 of chapter I, title 40
of the Code of Federal Regulations is amended as follows:
PART 51--[AMENDED]
? 1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
? 2. Section 51.351 is amended by revising paragraph (c) and adding a new
paragraph (i) to read as follows:
Sec. 51.351 Enhanced I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). For those areas required to
implement an enhanced I/M program prior to the effective date of
designation and classifications under the 8-hour ozone standard, the
performance standard shall include inspection of all model year 1996
and later light-duty vehicles and light-duty trucks equipped with
certified on-board diagnostic systems, and repair of malfunctions or
system deterioration identified by or affecting OBD systems as
specified in Sec. 51.357, and assuming a start date of 2002 for such
testing. For areas required to implement enhanced I/M as a result of
designation and classification under the 8-hour ozone standard, the
performance standard defined in paragraph (i) of this section shall
include inspection of all model year 2001 and later light-duty vehicles
and light-duty trucks equipped with certified on-board diagnostic
systems, and repair of malfunctions or system deterioration identified
by or affecting OBD systems as specified in Sec. 51.357, and assuming
a start date of 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
* * * * *
(i) Enhanced performance standard for areas designated and
classified under the 8-hour ozone standard. Areas required to implement
an enhanced I/M program as a result of being designated and classified
under the 8-hour ozone standard, must meet or exceed the HC and
NOX emission reductions achieved by the model program
defined as follows:
(1) Network type. Centralized testing.
(2) Start date. 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
(3) Test frequency. Annual testing.
[[Page 17711]]
(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) Emission test type. Idle testing (as described in appendix B of
this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001
and newer vehicles.
(7) Emission standards. Those specified in 40 CFR part 85, subpart W.
(8) Emission control device inspections. Visual inspection of the
positive crankcase ventilation valve on all 1968 through 1971 model
year vehicles, inclusive, and of the exhaust gas recirculation valve on
all 1972 and newer model year vehicles.
(9) Evaporative system function checks. None, with the exception of
those performed by the OBD system on vehicles so-equipped and only for
model year 2001 and newer vehicles.
(10) Stringency. A 20% emission test failure rate among pre-1981
model year vehicles.
(11) Waiver rate. A 3% waiver rate, as a percentage of failed vehicles.
(12) Compliance rate. A 96% compliance rate.
(13) Evaluation date. Enhanced I/M program areas subject to the
provisions of this paragraph (i) shall be shown to obtain the same or
lower emission levels for HC and NOX as the model program
described in this paragraph assuming an evaluation date set 6 years
after the effective date of designation and classification under the 8-
hour ozone standard (rounded to the nearest July) to within +/-0.02
gpm. Subject programs shall demonstrate through modeling the ability to
maintain this percent level of emission reduction (or better) through
their applicable attainment date for the 8-hour ozone standard, also
rounded to the nearest July.
? 3. Section 51.352 is amended by revising paragraph (c) and adding a new
paragraph (e) to read as follows:
Sec. 51.352 Basic I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). For those areas required to
implement a basic I/M program prior to the effective date of
designation and classification under the 8-hour ozone standard, the
performance standard shall include inspection of all model year 1996
and later light-duty vehicles equipped with certified on-board
diagnostic systems, and repair of malfunctions or system deterioration
identified by or affecting OBD systems as specified in Sec. 51.357,
and assuming a start date of 2002 for such testing. For areas required
to implement basic I/M as a result of designation and classification
under the 8-hour ozone standard, the performance standard defined in
paragraph (e) of this section shall include inspection of all model
year 2001 and later light-duty vehicles equipped with certified on-
board diagnostic systems, and repair of malfunctions or system
deterioration identified by or affecting OBD systems as specified in
Sec. 51.357, and assuming a start date of 4 years after the effective
date of designation and classification under the 8-hour ozone standard.
* * * * *
(e) Basic performance standard for areas designated non-attainment
for the 8-hour ozone standard. Areas required to implement a basic I/M
program as a result of being designated and classified under the 8-hour
ozone standard, must meet or exceed the emission reductions achieved by
the model program defined for the applicable ozone precursor(s):
(1) Network type. Centralized testing.
(2) Start date. 4 years after the effective date of designation and
classification under the 8-hour ozone standard.
(3) Test frequency. Annual testing.
(4) Model year coverage. Testing of 1968 and newer vehicles.
(5) Vehicle type coverage. Light duty vehicles.
(6) Emission test type. Idle testing (as described in appendix B of
this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001
and newer vehicles.
(7) Emission standards. Those specified in 40 CFR part 85, subpart W.
(8) Emission control device inspections. None.
(9) Evaporative system function checks. None, with the exception of
those performed by the OBD system on vehicles so-equipped and only for
model year 2001 and newer vehicles.
(10) Stringency. A 20% emission test failure rate among pre-1981
model year vehicles.
(11) Waiver rate. A 0% waiver rate, as a percentage of failed vehicles.
(12) Compliance rate. A 100% compliance rate.
(13) Evaluation date. Basic I/M program areas subject to the
provisions of this paragraph (e) shall be shown to obtain the same or
lower emission levels as the model program described in this paragraph
by an evaluation date set 6 years after the effective date of
designation and classification under the 8-hour ozone standard (rounded
to the nearest July) for the applicable ozone precursor(s).
? 4. Section 51.353 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 51.353 Network type and program evaluation.
* * * * *
(c) * * *
(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
1 year after program start-up.
* * * * *
? 5. Section 51.360 is amended by revising paragraph (a)(6) to read as
follows:
Sec. 51.360 Waivers and compliance via diagnostic inspection.
* * * * *
(a) * * *
(6) In basic programs, a minimum of $75 for pre-81 vehicles and
$200 for 1981 and newer vehicles shall be spent in order to qualify for
a waiver. These model year cutoffs and the associated dollar limits
shall be in full effect by January 1, 1998, or coincident with program
start-up, whichever is later. Prior to January 1, 1998, States may
adopt any minimum expenditure commensurate with the waiver rate
committed to for the purposes of modeling compliance with the basic I/M
performance standard.
* * * * *
? 6. Section 51.372 is amended by removing and reserving paragraphs
(b)(1) and (b)(3) and by revising paragraph (b)(2) to read as follows:
Sec. 51.372 State implementation plan submissions.
* * * * *
(b) * * *
(1) [Reserved]
(2) A SIP revision required as a result of designation for a
National Ambient Air Quality Standard in place prior to implementation
of the 8-hour ozone standard and including all necessary legal
authority and the items specified in paragraphs (a)(1) through (a)(8)
of this section, shall be submitted no later than November 15, 1993.
For non-attainment areas designated and classified under the 8-hour
ozone standard, a SIP revision including all necessary legal authority
and the items specified in paragraphs (a)(1) through (a)(8) of this
section, shall be submitted by May 8, 2007 or 1 year after the
effective date of designation and classification under the 8-hour ozone
National Ambient Air Quality Standard, whichever is later.
(3) [Reserved]
* * * * *
? 7. Section 51.373 is amended by revising paragraphs (b) and (d), by
removing and reserving paragraph (e),
[[Page 17712]]
and by adding a new paragraph (h) to read as follows:
Sec. 51.373 Implementation deadlines.
* * * * *
(b) For areas newly required to implement basic I/M as a result of
designation under the 8-hour ozone standard, the required program shall
be fully implemented no later than 4 years after the effective date of
designation and classification under the 8-hour ozone standard.
* * * * *
(d) For areas newly required to implement enhanced I/M as a result
of designation under the 8-hour ozone standard, the required program
shall be fully implemented no later than 4 years after the effective
date of designation and classification under the 8-hour ozone standard.
(e) [Reserved]
* * * * *
(h) For areas newly required to implement either a basic or
enhanced I/M program as a result of being designated and classified
under the 8-hour ozone standard, such programs shall begin OBD testing
on subject OBD-equipped vehicles coincident with program start-up.
* * * * *
[FR Doc. 06-3317 Filed 4-6-06; 8:45 am]
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