Additional Flexibility Amendments to Vehicle Inspection
Maintenance Program Requirements; Amendment to the Final Rule
Related Material
[Federal Register: July 24, 2000 (Volume 65, Number 142)]
[Rules and Regulations]
[Page 45526-45535]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy00-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-6735-1]
RIN 2060-AI61
Additional Flexibility Amendments to Vehicle Inspection
Maintenance Program Requirements; Amendment to the Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's action revises the Motor Vehicle Inspection/
Maintenance (I/M) program requirements to provide additional
flexibility to state I/M programs, both in response to the I/M
provisions of the National Highway System Designation Act of 1995
(NHSDA), and in compliance with the Clean Air Act requirement that
EPA's guidance for such programs be ``from time to time revised.''
Today's action: Modifies the current enhanced I/M performance standard
modeling requirements to reflect delays caused by the NHSDA, and to
provide states greater flexibility in how they meet the performance
standard; removes the I/M rule provision establishing the
decentralized, test-and-repair credit discount; revises certain test
procedure, standard, and equipment requirements to better accommodate
alternative test types and program designs; streamlines the data
collection, analysis, and reporting requirements to make them
consistent with various alternative test and program types; makes minor
revisions to the inspector training requirements also to accommodate
various alternative test and program types; revises the requirements
for consumer protection and improving repair effectiveness to limit the
current requirement to provide diagnostic information to those programs
and test types capable of producing such
[[Page 45527]]
information, reliably and practically; and expands the options for
complying with the on-road testing requirement to accommodate more
recent variations, such as clean screening and non-tailpipe based,
roadside tests.
DATES: This rule will take effect August 23, 2000.
ADDRESSES: Materials relevant to this rulemaking are contained in the
Public Docket No. A-99-19. The docket is located at the Air Docket,
Room M-1500 (6102), Waterside Mall SW., Washington, DC 20460. The
docket may be inspected between 8:30 a.m. and 12 noon and between 1:30
p.m. until 3:30 p.m. on weekdays. A reasonable fee may be charged for
copying docket material.
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:
Table of Contents
I. Summary of Proposal
II. Authority
III. Public Participation
A. Increased Flexibility
B. Performance Standard Amendments
C. Network Requirement Amendments
D. Test Procedure and Related Amendments
E. Onboard Diagnostics (OBD) versus Emissions Tests
F. On-Road Testing Amendments
IV. Economic Costs and Benefits
V. Administrative Requirements
A. Administrative Designation
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates 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. National Technology Transfer and Advancement Act
I. Congressional Review Act
I. Summary of Rule
Under the Clean Air Act as amended in 1990 (CAA), 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 today amending this rule
to provide greater flexibility to states to tailor their I/M programs
to better meet local needs. Specifically, today's action: (1) Amends
the enhanced I/M performance standard requirements at 40 CFR 51.351 to
change the performance standard modeling requirement from demonstrating
that the performance standard is met on 2000 and each subsequent
milestone (through to and including the attainment deadline) to a
requirement that the performance standard be met (within +/- 0.02
grams-per-mile) on 2002, and that the same or better level of emission
reduction be demonstrated for the attainment deadline, rounded to the
nearest year; (2) deletes 40 CFR 51.353(b) which previously established
the decentralized, test-and-repair credit discount, and revises the
definition of test-only at 40 CFR 51.353(a) to allow test-only stations
to sell self-serve gasoline, pre-packaged oil, and any other items that
are not directly related to automotive parts sales and/or service; (3)
to better accommodate alternative test types and program designs: (a)
Revises the test procedures and standards requirements at 40 CFR 51.357
to clarify that tailpipe exhaust testing is not a universal requirement
for all I/M programs, that alternatives to the IM240 drive cycle are
allowed under the requirements for transient testing, and that the
standard for an acceptable alternative test to the IM240 is
comparability in terms of emission reduction potential, not necessarily
equivalence, (b) revises the test equipment requirements at 40 CFR
51.358 to make the definition of ``computerized test system'' less
prescriptive and to relax the requirement for a real-time data link for
those areas required to do I/M, but which do not need to claim I/M
emission reductions to meet their other, non-I/M CAA requirements, and
(c) revises the data collection, analysis, and reporting requirements
at 40 CFR 51.365 and 40 CFR 51.366 to clarify that the specific
elements to be collected and reported are only required where
applicable to the test type employed, and to make the requirements less
prescriptive with regard to the test types assumed; (4) revises the
requirements for consumer protection at 40 CFR 51.368 and improving
repair effectiveness at 40 CFR 51.369 to limit the current requirement
to provide diagnostic information to those programs and test types
capable of producing such information, reliably and practically, and;
(5) expands the options for complying with the on-road testing
requirement at 40 CFR 51.371 by: (a) Removing language suggesting that
such testing must be tailpipe-based, and (b) inserting language making
the out-of-cycle repair requirement optional where on-road testing is
used as a clean-screen approach.
The goal of today's action is to bring the rule up-to-date with
current policy decisions, technological changes, and statutory
requirements, while also providing states the additional flexibility
they need to tailor their I/M programs now to better meet their future
needs. Among these future needs are: (1) The need to maximize program
efficiency and customer convenience by capitalizing on alternative
vehicle testing options; (2) the need to accommodate an in-use fleet
turning over to newer, cleaner, and more durable vehicle technologies
over time; and (3) the need to assess the role I/M should play in areas
once they have attained the National Ambient Air Quality Standards
(NAAQS). The detailed basis for each amendment was explained in the
August 20, 1999 proposal and will not be repeated here except as
appropriate in response to comments.
II. Authority
Authority for the today's action is granted to EPA by section 182
of the Clean Air Act as amended (42 U.S.C. 7401, et seq.) and by
section 348 of the National Highway System Designation Act of 1995 (23
U.S.C. 101).
III. Public Participation
Written comments on the August 20, 1999 proposal were received from
four sources prior to the close of the public comment period on
September 20, 1999. In response to a request for an extension, on
November 16, 1999, the public comment period was re-opened for seven
days, and closed again on November 23, 1999. Between September 20, 1999
and November 23, 1999, comments from one additional source were
received, while one of the original commenters provided additional
comments. The commenters were: Missouri Department of Natural Resources
(MDNR), Texas Natural Resource Conservation Commission (TNRCC), the
Association of International Automobile Manufacturers (AIAM), the
National Automobile Dealers Association (NADA), and Environmental
Systems Products, Inc. (ESP), which transmitted comments through the
law firm of Hunton and Williams. Of the comments received, only ESP
requested that some of the proposed amendments be withdrawn. The main
issues raised by the commenters are summarized and addressed below:
[[Page 45528]]
A. Increased Flexibility
All commenters--including ESP--indicated their general support for
changing the I/M rule to provide states with greater flexibility to
tailor I/M programs to meet their local needs. Only ESP suggested that
in proposing its flexibility amendments, EPA had exceeded its authority
and requested certain aspects of the proposal be withdrawn. The
specific objections raised by ESP are addressed under the relevant
headings below.
B. Performance Standard Amendments
1. Summary of Proposal
The current I/M rule requires that enhanced I/M programs show
through modeling that they can meet the relevant performance standard
beginning with a 2000 evaluation date (which was considered the closest
modeling equivalent to the Clean Air Act's November 15, 1999 milestone
date for Reasonable Further Progress plans) and for each CAA milestone
thereafter (also rounded to the nearest evaluation year) through to and
including the relevant attainment date. Passage of the National Highway
System Designation Act (NHSDA) in 1995--and EPA's own I/M flexibility
amendments in 1995 and 1996--contributed to delays by many states
required to implement enhanced I/M programs. EPA therefore proposed to
change this requirement by delaying the first milestone to 2002 and
limiting the number of milestones modeled to a maximum of two: 2002
and, for those areas with post-2002 attainment deadlines, the relevant
CAA attainment deadline, rounded up to the nearest year.
2. Summary of Comments
Although all the commenters that chose to address this element of
the proposal favored the change, EPA believes there may be some
confusion with regard to which of the rule's dates is being changed. At
least one commenter seems to suggest that the proposal changes the
deadline by which biennial program evaluations are due under 40 CFR
51.353(c) of the I/M rule. This is not the case.
3. Response to Comments
EPA wants to take this opportunity to clarify that we are not
proposing to change the deadline by which biennial program evaluations
are due under 40 CFR 51.353(c) of the I/M rule and that we are not
proposing to change that section of the rule in any way at this time.
The first CAA-required biennial program evaluation continues to be due
two years after the initial start date of mandatory testing; subsequent
reports continue to be due every two years, thereafter. EPA has only
proposed to change the performance standard modeling milestones under
40 CFR 51.351 of the I/M rule. Therefore, in this final action EPA is
changing the performance standard modeling milestones as proposed and
as supported by all commenters that chose to address this element of
the proposal.
C. Network Requirement Amendments
1. Summary of Proposal
The current I/M rule provides for the automatic application of an
emission reduction discount on programs that allow the same entity to
both test and repair I/M subject vehicles. In 1995, the National
Highway System Designation Act (NHSDA) prohibited the automatic
discounting of such programs. Nevertheless, the NHSDA still allows EPA
to adjust the credit it approves for such programs on a case-by-case
basis, based upon program data. EPA therefore proposed to delete 40 CFR
51.353(b) which first established the automatic credit discount for
decentralized, test-and-repair I/M programs. Language was also included
to clarify that a decentralized, test-and-repair I/M program submitted
after the NHSDA's March 27, 1996 deadline for qualifying for an 18-
month interim approval can still be granted a 12-month conditional
approval on a case-by-case basis.
2. Summary of Comments
MDNR indicated that while it did not agree with the proposed
changes based upon its belief that decentralized, test-and-repair
programs are prone to inaccuracy and fraud, it nevertheless
acknowledged the need for the change to comply with the NHSDA. NADA
indicated that it has been pushing for this change since before passage
of the original, 1992 I/M rule and therefore welcomed the proposed
amendment. TNRCC suggested that EPA change the following statement
concerning conditional approvals from the proposed amendment--``* * *
the State must demonstrate that the program is achieving the level of
effectiveness claimed in the plan within 12 months of the plan's
approval''--to ``* * * the State must demonstrate that the program is
achieving the level of effectiveness claimed in the plan within 12
months of the plan's final approval'' (emphasis added).
3. Response to Comments
EPA is taking final action to delete the automatic discount as
proposed. In addition, although EPA agrees with TNRCC that the text
cited could be clarified, we believe the proposed revision actually
increases confusion, and may lead states to believe that the required
demonstration is not a condition for final approval, but rather
something submitted after final approval is granted. Therefore, EPA
will amend the cited language concerning conditional approvals to read
as follows: ``* * * the State must demonstrate that the program is
achieving the level of effectiveness claimed in the plan within 12
months of the plan's final conditional approval before EPA can convert
that approval to a final full approval.''
D. Test Procedure and Related Amendments
1. Summary of Proposal
Although EPA has approved a variety of alternative tests for use in
I/M programs--such as the gas cap test and the Acceleration Simulation
Mode (ASM) test--the language in the current I/M rule with regard to
test procedures and related requirements remains heavily biased toward
the IM240. Also, the I/M rule as currently written frequently equates
emission testing with ``tailpipe testing,'' thus barring by implication
alternative designs that have been proposed to EPA that do not rely
upon tailpipe testing to meet the applicable performance standard. For
example, the State of Louisiana has proposed to meet the low enhanced
I/M performance standard with a program that does not include a
tailpipe test, employing, instead, a comprehensive visual inspection
and evaporative system pressure testing on a wide range of vehicles, up
to and including heavy-duty vehicles. EPA therefore proposed to amend
the rule to delete language that suggests that non-tailpipe and non-
IM240 alternatives are barred from consideration. For the most part,
these amendments are limited to deleting the words ``tailpipe'' and
``IM240,'' and inserting the caveat ``where applicable,'' as needed.
EPA also proposed replacing the requirement that alternative tests be
equivalent to the tests they replace to a requirement that they be
comparable in combination with other program parameters. Similar
amendments were proposed elsewhere in the regulatory text, to the
extent that the existing text creates the impression that IM240 or
tailpipe testing are absolute requirements, or that alternative test
methods are otherwise barred. Lastly, EPA proposed to revise the test
equipment requirements at 40 CFR 51.358 to make the regulatory
definition of ``computerized test system'' less
[[Page 45529]]
prescriptive to allow alternatives like evaporative emission testing
devices to qualify as ``computerized test systems.''
2. Summary of Comments
MDNR did not favor changing ``equivalent'' to ``comparable,'' but
acknowledged the need for the change. TNRCC suggested changing the
proposed amendment language from a requirement that computerized
analyzers ``shall be automated'' to a requirement that computerized
test systems ``shall make automatic pass/fail decisions.'' AIAM and
NADA supported the deletion of references to ``tailpipe'' and
``IM240,'' and expanding the definition of ``computerized test
systems.'' ESP pointed out that the CAA did not require ``computerized
test systems,'' but ``computerized emission analyzers'' (emphasis
added). ESP also suggested the proposal to change the criteria for
accepting alternative tests from ``equivalent'' to ``comparable'' was
in conflict with the CAA's requirement that I/M programs be centralized
unless decentralized programs can be proven to be ``equally effective''
(emphasis added). Lastly, ESP suggested that EPA's proposed amendment
of 40 CFR 51.357(a)(13) to remove a reference to correlation to the
Federal Test Procedure (FTP) violates section 207(b) of the CAA, which
requires that I/M tests be ``reasonably capable of being correlated''
to the FTP.
3. Response to Comments
EPA agrees with the editorial change suggested by TNRCC and will
also add the word ``emission'' to change ``computerized test systems''
to ``computerized emission test systems'' in response to ESP's comment.
However, EPA does not agree that changing the criteria for accepting
alternative tests from equivalence to comparability is in conflict with
the CAA's equivalency demonstration for decentralized programs.
Specifically, the proposal is to change a requirement for test type,
not network design. The CAA's equivalency requirement applies only to
the latter, and is silent on the former. The rule provisions on network
design retain the requirement for equivalency. Lastly, EPA agrees with
ESP that reasonable correlation to the FTP is a CAA-mandated
requirement for alternative I/M tests and will restore the rule's
reference to the FTP that was proposed to be deleted in the proposal.
E. Onboard Diagnostics (OBD) versus Emissions Tests
1. Summary of Proposal
EPA has indicated its belief that OBD testing may one day replace
tailpipe testing on OBD-equipped vehicles in several forums, including
initially the preamble to the original 1992 I/M rule. Because many of
the amendments necessary to allow evaporative system testing in lieu of
tailpipe testing \1\ are similar to the regulatory changes which will
be necessary prior to approving the replacement of tailpipe testing
with OBD, in the preamble to the proposal, EPA again reiterated its
belief that future I/M programs will rely increasingly on OBD-based
testing. Also, because all state I/M programs are required to include
OBD testing on vehicles so equipped beginning on January 1, 2001, EPA
revised some of its generic I/M test requirements to reflect the fact
that OBD is either included or exempted from a given requirement, based
upon the nature of the OBD system. It was not, however, EPA's intention
to make an affirmative determination that OBD alone can replace all
other tests on OBD-equipped vehicles at this time. Nor do we intend to
make a finding today that it would be technologically justified to do
so. Those determinations will be addressed in a separate rulemaking
that EPA intends to propose in the near future.
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\1\ States opting to rely upon evaporative system testing in
lieu of tailpipe testing must still demonstrate that they meet the
applicable I/M performance standard prior to EPA approving such a
plan.
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2. Summary of Comments
Both AIAM and ESP seemed to interpret EPA's proposal as granting
approval of OBD checks as a replacement for other I/M tests, effective
at the same time as all the other changes proposed. NADA, on the other
hand, seemed to read the proposal more as EPA intended--as an
indication of the likely shape that future I/M programs will take. Both
NADA and AIAM supported the idea of relying upon OBD checks for I/M
purposes for vehicles so equipped, although AIAM also indicated that
additional regulatory changes would be necessary for states to
implement OBD-based I/M testing effectively.
ESP vigorously opposed the idea of replacing traditional I/M tests
with OBD-only checks and requested that EPA retract any portion of the
proposal that would either allow this or create the impression that
this was being allowed. In support of their opposition, they suggested
the following: (1) OBD monitors individual components but does not
directly measure emissions and therefore does not qualify as an
emission test; (2) the CAA lists ``[c]omputerized emission analyzers''
and ``[i]nspection of emission control diagnostic systems'' separately,
suggesting that the two approaches are different; and (3) the CAA's
requirement that all enhanced I/M programs use ``[c]omputerized
emission analyzers'' effectively prohibits the substitution of
traditional I/M tests with checks of the OBD system. ESP also pointed
out that the proposal's docket lacked data supporting the conclusion
that OBD checks can replace other tests, and suggested that the public
was not afforded an adequate opportunity to review the basis for EPA's
proposal. Lastly, ESP maintained that EPA and the states do not have
unlimited flexibility in designing I/M programs, specifically stating
that ``[i]n the case of enhanced I/M programs, for example, tailpipe
emission testing has long been considered an essential element of I/M
programs, even under the Agency's low-enhanced I/M performance
standard.''
3. Response to Comments
As indicated in the ``Summary of Proposal'' above, EPA is not today
making an affirmative determination that states can use OBD checks as a
replacement for other I/M inspections on vehicles equipped with OBD.
Such a determination would require a separate docket including
technical support documentation assessing how much emission reduction
credit OBD-only I/M testing of OBD-equipped vehicles warrants. Until
that time, any area that seeks to rely upon OBD-only I/M testing of
model year 1996+ OBD-equipped vehicles may find it difficult to meet
the applicable I/M performance standard or other CAA state
implementation planning (SIP) goals for which I/M-related emission
reduction credits are needed. The reason for this is because OBD-only
I/M testing is not currently credited in the MOBILE emission factor
model used for SIP development and evaluation. As a result, performing
OBD-only I/M testing on 1996+ OBD-equipped vehicles would be the SIP
equivalent of completely exempting those vehicles from the program.
ESP is correct in its observation that the docket does not contain
the data necessary to support such an affirmative determination.
Efforts to gather and analyze that data are ongoing and although the
preliminary results look promising, EPA is not in this rulemaking
making a conclusion that OBD checks alone are an adequate replacement
for other I/M tests for OBD-
[[Page 45530]]
equipped vehicles. EPA will in the near future publish a document
addressing the results of our data analysis. This notice of proposed
rulemaking would be subject to public comment, and would include a
docket containing the data and analyses EPA considered in reaching its
conclusion. Given the implementation deadline of January 1, 2001 for I/
M programs to begin OBD-based I/M testing, EPA expects to publish a
notice of proposed rulemaking addressing OBD implementation in I/M
programs very soon.
This said, EPA agrees that at least one instance of proposed
amendment language was premature with regard to OBD. EPA is therefore
deleting the following, proposed caveat from 40 CFR 51.358(a): ``With
the exception of test procedures relying upon a vehicle's onboard
diagnostic (OBD) system (which is certified as part of the overall
vehicle certification process) . . .'' This language was included in a
section indicating the performance features of computerized emission
test systems and is premature because EPA has not yet concluded that
any such system can rely exclusively upon OBD checks. EPA is taking
final action now on the other proposed flexibilities because they are
necessary to allow states to adopt evaporative emission testing as
their primary emission test in lieu of tailpipe emission testing.
Concerning ESP's comments regarding the limits on EPA's flexibility
with regard to I/M programs, EPA agrees that its authority is
constrained by the requirements of the Clean Air Act. Regarding ESP's
claims concerning the essential nature of tailpipe testing to such
programs, however, we disagree. The CAA requires emission testing but
does not specify tailpipe emission testing versus evaporative emission
testing.
Lastly, regarding ESP's implication that EPA and the states are
similarly constrained by the CAA with regard to the flexibility it
afforded each in the selection of I/M program elements, we offer the
following clarification. While the CAA did impose certain minimum model
year coverage requirements upon EPA in its development of the I/M
performance standards, it did not specify such coverage requirements
for the state programs designed to meet those performance standards. As
a practical matter, states have more flexibility than EPA when it comes
to determining which vehicles to cover by what test(s) in their I/M
programs--provided they can still meet the relevant performance
standard which EPA developed considering all subject vehicles. In fact,
states routinely exempt the newest and/or oldest model year vehicles
from testing, or otherwise exempt vehicles through a variety of clean-
screening strategies. EPA believes that it is erroneous to suggest that
states do not have this flexibility available to them, or that
exempting certain classes of vehicles from specific state I/M program
elements is somehow in violation of the CAA.
F. On-Road Testing Amendments
1. Summary of Proposal
The CAA requires that enhanced I/M programs include ``on-road
testing devices.'' In its 1992 I/M rule, EPA indicated that this
requirement could be met by either using remote sensing devices (RSD)
or by conducting road-side pull-over, tailpipe testing. In either case,
however, vehicles which failed the test were required to get out-of-
cycle repairs, the presumption being that the purpose of such testing
was to identify dirty vehicles in need of such repairs. EPA proposed to
expand the range of options for meeting the on-road testing requirement
to include non-tailpipe tests like evaporative system testing and also
to include options like clean-screening which use RSD readings as one
basis for exempting clean vehicles from the regular inspection (and do
not, therefore, support the notion of out-of-cycle repairs).
2. Summary of Comments
MDNR, TNRCC, and NADA all supported the proposed changes for on-
road testing requirements, citing the additional flexibility it allows
states. TNRCC further suggested changing 40 CFR 51.371(b)(3) which
states that ``emission reduction credit for on-road testing programs
shall be granted for a program designed to obtain significant emission
reductions over and above those already predicted to be achieved by
other aspects of the I/M program.'' TNRCC suggested replacing the word
``significant'' with ``measurable.''
3. Response to Comments
EPA is taking final action as proposed and supported by the
commenters. EPA agrees with TNRCC's suggestion and will incorporate
that word change.
IV. Economic Costs and Benefits
Today's action provides states additional flexibility that lessens
rather than increases the potential economic burden on states.
Furthermore, states are under no obligation, legal or otherwise, to
modify existing plans meeting the previously applicable requirements as
a result of today's action.
V. Administrative Requirements
A. Administrative Designation
It has been determined that today's amendments to the I/M rule do
not constitute a significant regulatory action under the terms of
Executive Order 12866 and this action is 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 this action 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 additional information requirements in today's action
which require the approval of the Office of Management and Budget under
the Paperwork Reduction Act 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this action will not
have a significant economic impact on a substantial number of small
entities and, therefore, is not subject to the requirement of a
Regulatory Impact Analysis. A small entity may include a small
government entity or jurisdiction. This certification is based on the
fact that the I/M areas impacted by today's action 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 basic
and 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 today's action does not
increase the preexisting burden of the existing rules which this action
amends.
D. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule
[[Page 45531]]
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 today's 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 action is not estimated to
impose costs in excess of $100 million. Therefore, EPA has not prepared
a statement with respect to budgetary impacts. As noted above, this
rule offers opportunities to states that would enable them to lower
economic burdens from those resulting from the currently existing I/M
rule.
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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
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. On the contrary, the intent of
today's final rule is to provide states greater flexibility with regard
to pre-existing regulatory and statutory requirements for vehicle
inspection and maintenance (I/M) programs. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
F. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Today's rule does not create a mandate on tribal
governments or create any additional burden or requirements for tribal
government. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (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. EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This rule is not subject to Executive Order
13045 because it is not economically significant under Executive Order
12866 and because it is based on technology performance and not on
health or safety risks.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA) directs all Federal agencies to use voluntary
consensus standards instead of government-unique standards in their
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling and analytical procedures, business practices, etc.) that are
developed or adopted by one or more voluntary consensus standards
bodies. Examples of organizations generally regarded as voluntary
consensus standards bodies include the American Society for Testing and
Materials (ASTM), the National Fire Protection Association (NFPA), and
the Society of Automotive Engineers (SAE). The NTTAA requires Federal
agencies like EPA to provide Congress, through OMB, with explanations
when an agency decides not to use available and applicable voluntary
consensus standards.
Today's rule does not set new technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards.
I. 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. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and
[[Page 45532]]
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804 (2).
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Transportation.
Dated: July 5, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 51 of title 40 of the
Code of Federal Regulations is amended to read as follows:
PART 51--[AMENDED]
1. The authority citation for Part 51 is revised to read as
follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
2. Section 51.350 is amended by revising paragraph (c) to read as
follows:
Sec. 51.350 Applicability.
* * * * *
(c) Requirements after attainment. All I/M programs shall provide
that the program will remain effective, even if the area is
redesignated to attainment status or the standard is otherwise rendered
no longer applicable, until the State submits and EPA approves a SIP
revision which convincingly demonstrates that the area can maintain the
relevant standard(s) without benefit of the emission reductions
attributable to the I/M program. The State shall commit to fully
implement and enforce the program until such a demonstration can be
made and approved by EPA. At a minimum, for the purposes of SIP
approval, legislation authorizing the program shall not sunset prior to
the attainment deadline for the applicable National Ambient Air Quality
Standards (NAAQS).
* * * * *
3. Section 51.351 is amended by removing and reserving paragraph
(a) and by revising paragraphs (b), (f) introductory text, (f)(13),
(g)(13) and (h)(11) to read as follows:
Sec. 51.351 Enhanced I/M performance standard.
(a) [Reserved]
(b) On-road testing. The performance standard shall include on-road
testing (including out-of-cycle repairs in the case of confirmed
failures) of at least 0.5% of the subject vehicle population, or 20,000
vehicles whichever is less, as a supplement to the periodic inspection
required in paragraphs (f), (g), and (h) of this section. Specific
requirements are listed in Sec. 51.371 of this subpart.
* * * * *
(f) High Enhanced Performance Standard. Enhanced I/M programs shall
be designed and implemented to meet or exceed a minimum performance
standard, which is expressed as emission levels in area-wide average
grams per mile (gpm), achieved from highway mobile sources as a result
of the program. The emission levels achieved by the State's program
design shall be calculated using the most current version, at the time
of submittal, of the EPA mobile source emission factor model or an
alternative model approved by the Administrator, and shall meet the
minimum performance standard both in operation and for SIP approval.
Areas shall meet the performance standard for the pollutants which
cause them to be subject to enhanced I/M requirements. In the case of
ozone nonattainment areas subject to enhanced I/M and subject areas in
the Ozone Transport Region, the performance standard must be met for
both oxides of nitrogen (NOx) and volatile organic compounds (VOCs),
except as provided in paragraph (d) of this section. Except as provided
in paragraphs (g) and (h) of this section, the model program elements
for the enhanced I/M performance standard shall be as follows:
* * * * *
(13) Evaluation date. Enhanced I/M program areas subject to the
provisions of this paragraph shall be shown to obtain the same or lower
emission levels as the model program described in this paragraph by
January 1, 2002 to within +/-0.02 gpm. Subject programs shall
demonstrate through modeling the ability to maintain this level of
emission reduction (or better) through their attainment deadline for
the applicable NAAQS standard(s).
(g) * * *
(13) Evaluation date. Enhanced I/M program areas subject to the
provisions of this paragraph (g) shall be shown to obtain the same or
lower emission levels as the model program described in this paragraph
by January 1, 2002 to within +/-0.02 gpm. Subject programs shall
demonstrate through modeling the ability to maintain this level of
emission reduction (or better) through their attainment deadline for
the applicable NAAQS standard(s).
(h) * * *
(11) Evaluation date. 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 (h) by January 1, 2002 to within +/-0.02 gpm. Subject
programs shall demonstrate through modeling the ability to maintain
this level of emission reduction (or better) through their attainment
deadline for the applicable NAAQS standard(s). Equality of substituted
emission reductions to the benefits of the low enhanced performance
standard must be demonstrated for the same evaluation date.
4. Section 51.353 is amended by revising the introductory text and
paragraph (a) and by removing and reserving paragraph (b) to read as
follows:
Sec. 51.353 Network type and program evaluation.
Basic and enhanced I/M programs can be centralized, decentralized,
or a hybrid of the two at the State's discretion, but shall be
demonstrated to achieve the same (or better) level of emission
reduction as the applicable performance standard described in either
Sec. 51.351 or 51.352 of this subpart. For decentralized programs other
than those meeting the design characteristics described in paragraph
(a) of this section, the State must demonstrate that the program is
achieving the level of effectiveness claimed in the plan within 12
months of the plan's final conditional approval before EPA can convert
that approval to a final full approval. The adequacy of these
demonstrations will be judged by the Administrator on a case-by-case
basis through notice-and-comment rulemaking.
(a) Presumptive equivalency. A decentralized network consisting of
stations that only perform official I/M testing (which may include
safety-related inspections) and in which owners and employees of those
stations, or companies owning those stations, are contractually or
legally barred from engaging in motor vehicle repair or service, motor
vehicle parts sales, and motor vehicle sale and leasing, either
directly or indirectly, and are barred from referring vehicle owners to
particular providers of motor vehicle repair services (except as
provided in Sec. 51.369(b)(1) of this subpart) shall be considered
presumptively equivalent to a centralized, test-only system including
comparable test elements. States may allow such stations to engage in
the full range of sales not covered by the above prohibition, including
self-serve gasoline, pre-packaged oil, or other, non-automotive,
convenience store items. At the State's discretion, such
[[Page 45533]]
stations may also fulfill other functions typically carried out by the
State such as renewal of vehicle registration and driver's licenses, or
tax and fee collections.
(b) [Reserved]
* * * * *
5. Section 51.357 is amended by revising paragraphs (a)(3), (a)(4),
(a)(6), (a)(11), and (a)(13) as follows:
Sec. 51.357 Test procedures and standards.
* * * * *
(a) * * *
(3) An official test, once initiated, shall be performed in its
entirety regardless of intermediate outcomes except in the case of
invalid test condition, unsafe conditions, fast pass/fail algorithms,
or, in the case of the on-board diagnostic (OBD) system check, unset
readiness codes.
(4) Tests involving measurement shall be performed with program-
approved equipment that has been calibrated according to the quality
procedures contained in appendix A to this subpart.
* * * * *
(6) Vehicles shall be retested after repair for any portion of the
inspection that is failed on the previous test to determine if repairs
were effective. To the extent that repair to correct a previous failure
could lead to failure of another portion of the test, that portion
shall also be retested. Evaporative system repairs shall trigger an
exhaust emissions retest (in programs which conduct an exhaust emission
test as part of the initial inspection).
* * * * *
(11) Transient emission test. The transient emission test shall
consist of mass emission measurement using a constant volume sampler
(or an Administrator-approved alternative methodology for accounting
for exhaust volume) while the vehicle is driven through a computer-
monitored driving cycle on a dynamometer. The driving cycle shall
include acceleration, deceleration, and idle operating modes as
specified in appendix E to this subpart (or an approved alternative).
The driving cycle may be ended earlier using approved fast pass or fast
fail algorithms and multiple pass/fail algorithms may be used during
the test cycle to eliminate false failures. The transient test
procedure, including algorithms and other procedural details, shall be
approved by the Administrator prior to use in an I/M program.
* * * * *
(13) Approval of alternative tests. Alternative test procedures may
be approved if the Administrator finds that such procedures show a
reasonable correlation with the Federal Test Procedure and are capable
of identifying comparable emission reductions from the I/M program as a
whole, in combination with other program elements, as would be
identified by the test(s) which they are intended to replace.
* * * * *
6. Section 51.358 is amended by revising the introductory text,
paragraphs (a) introductory text, (a)(2)(i), (a)(2)(ii), (a)(2)(iv),
(a)(3) introductory text, (a)(3)(iv), (a)(3)(vi), (a)(3)(ix), (b)
introductory text, (b)(2) and (c) and by removing and reserving (b)(1)
and (3) to read as follows:
Sec. 51.358 Test equipment.
Computerized emission test systems are required for performing an
official emissions test on subject vehicles.
(a) Performance features of computerized emission test systems. The
emission test equipment shall be certified by the program, and newly
acquired emission test systems shall be subjected to acceptance test
procedures to ensure compliance with program specifications.
* * * * *
(2) * * *
(i) Shall make automatic pass/fail decisions;
(ii) Shall be secured from tampering and/or abuse;
* * * * *
(iv) Shall be capable of simultaneously sampling dual exhaust
vehicles in the case of tailpipe-based emission test equipment.
(3) The vehicle owner or driver shall be provided with a record of
test results, including all of the items listed in 40 CFR part 85,
subpart W as being required on the test record (as applicable). The
test report shall include:
* * * * *
(iv) The type(s) of test(s) performed;
* * * * *
(vi) The test results, by test, and, where applicable, by
pollutant;
* * * * *
(ix) For vehicles that fail the emission test, information on the
possible cause(s) of the failure.
(b) Functional characteristics of computerized emission test
systems. The test system is composed of motor vehicle test equipment
controlled by a computerized processor and shall make automatic pass/
fail decisions.
(1) [Reserved]
(2) Test systems in enhanced I/M programs shall include a real-time
data link to a host computer that prevents unauthorized multiple
initial tests on the same vehicle in a test cycle and to insure test
record accuracy. For areas which have demonstrated the ability to meet
their other, non-I/M Clean Air Act requirements without relying on
emission reductions from the I/M program (and which have also elected
to employ stand-alone test equipment as part of the I/M program), such
areas may adopt alternative methods for preventing multiple initial
tests, subject to approval by the Administrator.
(3) [Reserved]
* * * * *
(c) SIP requirements. The SIP shall include written technical
specifications for all test equipment used in the program and shall
address each of the above requirements (as applicable). The
specifications shall describe the testing process, the necessary test
equipment, the required features, and written acceptance testing
criteria and procedures.
7. Section 51.359 is amended by revising the introductory text,
paragraphs (a)(1), (c) and (d) and removing and reserving paragraph
(a)(3) to read as follows:
Sec. 51.359 Quality control.
Quality control measures shall insure that emission testing
equipment is calibrated and maintained properly, and that inspection,
calibration records, and control charts are accurately created,
recorded and maintained (where applicable).
(a) General requirements. (1) The practices described in this
section and in appendix A to this subpart shall be followed for those
tests (or portions of tests) which fall into the testing categories
identified. Alternatives or exceptions to these procedures or
frequencies may be approved by the Administrator based on a
demonstration of comparable performance.
* * * * *
(3) [Reserved]
* * * * *
(c) Requirements for transient exhaust emission test equipment.
Equipment shall be maintained according to demonstrated good
engineering practices to assure test accuracy. Computer control of
quality assurance checks and quality control charts shall be used
whenever possible. Exceptions to the procedures and the frequency of
the checks described in appendix A of this subpart may be approved by
the Administrator based on a demonstration of comparable performance.
(d) Requirements for evaporative system functional test equipment.
Equipment shall be maintained according to demonstrated good
[[Page 45534]]
engineering practices to assure test accuracy. Computer control of
quality assurance checks and quality control charts shall be used
whenever possible. Exceptions to the procedures and the frequency of
the checks described in appendix A of this subpart may be approved by
the Administrator based on a demonstration of comparable performance.
* * * * *
8. Section 51.362 is amended by revising paragraphs (a)(2) and
(b)(4) to read as follows:
Sec. 51.362 Motorist compliance enforcement program oversight.
* * * * *
(a) * * *
(2) Facilitation of accurate critical test data and vehicle
identifier collection through the use of automatic data capture systems
such as bar-code scanners or optical character readers, or through
redundant data entry (where applicable);
* * * * *
(b) * * *
(4) Maintain and ensure the accuracy of the testing database
through periodic internal and/or third-party review;
* * * * *
9. Section 51.363 is amended by revising paragraphs (a)(4)(vii),
(b)(1), (c)(10), (d)(1)(i) to read as follows:
Sec. 51.363 Quality assurance.
* * * * *
(a) * * *
(4) * * *
(vii) Where applicable, access to on-line inspection databases by
State personnel to permit the creation and maintenance of covert
vehicle records.
(b) * * *
(1) Automated record analysis to identify statistical
inconsistencies, unusual patterns, and other discrepancies;
* * * * *
(c) * * *
(10) A check of the pressure monitoring devices used to perform the
evaporative canister pressure test(s); and
* * * * *
(d) * * *
(1) * * *
(i) The use of test equipment and/or procedures;
* * * * *
10. Section 51.365 is amended by revising the introductory text and
paragraphs (a)(3), (a)(23), (a)(24), (a)(25), and (b) to read as
follows:
Sec. 51.365 Data collection.
Accurate data collection is essential to the management,
evaluation, and enforcement of an I/M program. The program shall gather
test data on individual vehicles, as well as quality control data on
test equipment (with the exception of test procedures for which either
no testing equipment is required or those test procedures relying upon
a vehicle's OBD system).
(a) * * *
(3) Test system number (where applicable);
* * * * *
(23) Results of the evaporative system pressure test(s) expressed
as a pass or fail;
(24) Results of the evaporative system purge test expressed as a
pass or fail along with the total purge flow in liters achieved during
the test (where applicable); and
(25) Results of the on-board diagnostic check expressed as a pass
or fail along with the diagnostic trouble codes revealed (where
applicable).
(b) Quality control data. At a minimum, the program shall gather
and report the results of the quality control checks required under
Sec. 51.359 of this subpart, identifying each check by station number,
system number, date, and start time. The data report shall also contain
the concentration values of the calibration gases used to perform the
gas characterization portion of the quality control checks (where
applicable).
11. Section 51.366 is amended by revising paragraphs (a)(2)(i),
(a)(2)(ii), (a)(2)(iii), (a)(2)(iv), (a)(2)(v), (a)(2)(vi), and (b)(3),
and by removing and reserving (a)(2)(vii), (a)(2)(viii), (a)(2)(ix),
(a)(2)(x), (b)(3)(v), (b)(3)(vi), (b)(3)(vii), and (b)(3)(viii) to read
as follows:
Sec. 51.366 Data analysis and reporting.
* * * * *
(a) * * *
(2) * * *
(i) Failing initially, per test type;
(ii) Failing the first retest per test type;
(iii) Passing the first retest per test type;
(iv) Initially failed vehicles passing the second or subsequent
retest per test type;
(v) Initially failed vehicles receiving a waiver; and
(vi) Vehicles with no known final outcome (regardless of reason).
(vii) [Reserved]
(viii) [Reserved]
(ix) [Reserved]
(x) [Reserved]
* * * * *
(b) * * *
(3) The number of covert audits:
(i) Conducted with the vehicle set to fail per test type;
(ii) Conducted with the vehicle set to fail any combination of two
or more test types;
(iii) Resulting in a false pass per test type;
(iv) Resulting in a false pass for any combination of two or more
test types;
* * * * *
12. Section 51.367 is amended by revising paragraphs (a)(1)(vi) and
(a)(3) to read as follows:
Sec. 51.367 Inspector training and licensing or certification.
* * * * *
(a) * * *
(1) * * *
(vi) Test equipment operation, calibration, and maintenance (with
the exception of test procedures which either do not require the use of
special equipment or which rely upon a vehicle's OBD system);
* * * * *
(3) In order to complete the training requirement, a trainee shall
pass (i.e., a minimum of 80% of correct responses or lower if an
occupational analysis justifies it) a written test covering all aspects
of the training. In addition, a hands-on test shall be administered in
which the trainee demonstrates without assistance the ability to
conduct a proper inspection and to follow other required procedures.
Inability to properly conduct all test procedures shall constitute
failure of the test. The program shall take appropriate steps to insure
the security and integrity of the testing process.
* * * * *
13. Section 51.368 is amended by revising paragraph (a) as follows:
Sec. 51.368 Public information and consumer protection.
(a) Public awareness. The SIP shall include a plan for informing
the public on an ongoing basis throughout the life of the I/M program
of the air quality problem, the requirements of Federal and State law,
the role of motor vehicles in the air quality problem, the need for and
benefits of an inspection program, how to maintain a vehicle in a low-
emission condition, how to find a qualified repair technician, and the
requirements of the I/M program. Motorists that fail the I/M test in
enhanced I/M areas shall be offered a list of repair facilities in the
area and information on the results of repairs performed by repair
facilities in the area, as described in Sec. 51.369(b)(1) of this
subpart. Motorists that fail the I/M test shall also be provided with
information concerning the possible
[[Page 45535]]
cause(s) for failing the particular portions of the test that were
failed.
* * * * *
14. Section 51.369 is amended by revising paragraphs (c)(2) and
(c)(3) to read as follows:
Sec. 51.369 Improving repair effectiveness.
* * * * *
(c) * * *
(2) The application of emission control theory and diagnostic data
to the diagnosis and repair of failures on the transient emission test
and the evaporative system functional checks (where applicable);
(3) Utilization of diagnostic information on systematic or repeated
failures observed in the transient emission test and the evaporative
system functional checks (where applicable); and
* * * * *
15. Section 51.371 is amended by revising the introductory text,
paragraphs (a)(2), (a)(3), (b)(2) and (b)(3) to read as follows:
Sec. 51.371 On-road testing.
On-road testing is defined as testing of vehicles for conditions
impacting the emission of HC, CO, NOX and/or CO2 emissions
on any road or roadside in the nonattainment area or the I/M program
area. On-road testing is required in enhanced I/M areas and is an
option for basic I/M areas.
(a) * * *
(1) * * *
(2) On-road testing is not required in every season or on every
vehicle but shall evaluate the emission performance of 0.5% of the
subject fleet statewide or 20,000 vehicles, whichever is less, per
inspection cycle.
(3) The on-road testing program shall provide information about the
performance of in-use vehicles, by measuring on-road emissions through
the use of remote sensing devices or by assessing vehicle emission
performance through roadside pullovers including tailpipe or
evaporative emission testing or a check of the onboard diagnostic (OBD)
system for vehicles so equipped. The program shall collect, analyze and
report on-road testing data.
* * * * *
(b) * * *
(1) * * *
(2) The SIP shall include the legal authority necessary to
implement the on-road testing program, including the authority to
enforce off-cycle inspection and repair requirements (where
applicable).
(3) Emission reduction credit for on-road testing programs shall be
granted for a program designed to obtain measurable emission reductions
over and above those already predicted to be achieved by other aspects
of the I/M program. Emission reduction credit will only be granted to
those programs which require out-of-cycle repairs for confirmed high-
emitting vehicles identified under the on-road testing program. The SIP
shall include technical support for the claimed additional emission
reductions.
[FR Doc. 00-17749 Filed 7-21-00; 8:45 am]
BILLING CODE 6560-50-P
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