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Minor Amendments to Inspection Maintenance Program Evaluation Requirements; Amendment to the Final Rule

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American Government

Minor Amendments to Inspection Maintenance Program Evaluation Requirements; Amendment to the Final Rule

Environmental Protection Agency
January 9, 1998

[Federal Register: January 9, 1998 (Volume 63, Number 6)]
[Rules and Regulations]               
[Page 1362-1368]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja98-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[FRL-5945-8]
RIN 2060-AH61

 
Minor Amendments to Inspection Maintenance Program Evaluation 
Requirements; Amendment to the Final Rule

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today's action revises the Motor Vehicle Inspection/
Maintenance (I/M) requirements by replacing the I/M rule requirement 
that the tailpipe portion of the mandatory program evaluation be 
performed using only an IM240 or equivalent mass-emission transient 
test with a requirement that states use a sound evaluation methodology 
capable of providing accurate information about the overall 
effectiveness of an I/M program. The goal of this action is to allow 
states additional flexibility to use not only IM240 but other approved 
alternative methodologies for their program evaluation. Today's action 
also clarifies that such program evaluation testing shall begin no 
later than November 30, 1998, and is not required to be coincident with 
program start up (though the first report is still due two years after 
program start up). This action also clarifies that ``initial test'' 
simply means that the test is conducted before repairs for each test 
cycle, and does not therefore preclude states from using alternative 
sampling methodologies such as roadside pullover to sample the fleet. 
Today's action also amends the conditions relating to the program 
evaluation testing requirements that were part of the conditional 
interim approval actions taken on the I/M State Implementation Plans 
(SIPs) for the Commonwealths of Pennsylvania and Virginia and the State 
of Delaware. States wishing to take advantage of the flexibility 
provided by today's action should review their implementation plans for 
any language that conflicts

[[Page 1363]]

with today's amendments. Such language will need to be amended and the 
amendment submitted as a SIP revision by November 30, 1998.

EFFECTIVE DATE: This rule will take effect on February 9, 1998.

ADDRESSES: Materials relevant to this rulemaking are contained in the 
Public Docket No. A-97-46. 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. Electronic copies of the preamble and the 
regulatory text of this rulemaking are available on the Office of 
Mobile Sources' World Wide Web site, http://www.epa.gov/OMSWWW/.

FOR FURTHER INFORMATION CONTACT: Tracey Bradish, Office of Mobile 
Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth 
Road, Ann Arbor, Michigan,48105. Telephone (313) 668-4239. E-mail 
bradish.tracey@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Summary of Rule

III. Authority

IV. Public Participation

A. Increased Flexibility
B. METT vs. ``Sound'' Evaluation Method
C. ``Sound'' vs. non-METT Evaluation Method
D. FTP Correlation
E. SIP Submission Deadlines
F. Need for New State Regulations
G. State Monitoring

V. Economic Costs and Benefits

VI. Administrative Requirements

A. Administrative Designation
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
E. Small Business Regulatory Enforcement Fairness Act
F. Petition for Judicial Review

II. Summary of Rule

    Under the Clean Air Act as amended in 1990 (the Act), 42 U.S.C. 
7401 et seq., the U.S. Environmental Protection Agency (EPA) published 
in the Federal Register on November 5, 1992, (40 CFR part 51, subpart 
S) a rule related to state air quality implementation plans for Motor 
Vehicle Inspection and Maintenance (I/M) programs (hereafter referred 
to as the I/M rule; see 57 FR 52950). With today's action, EPA is 
amending this rule to provide greater flexibility to states in 
conducting program evaluation. This action: 1) amends the I/M program 
evaluation requirements at 40 CFR 51.353(c) to remove the current 
requirement that the tailpipe portion of the program evaluation can 
only be performed by conducting mass emission transient testing (METT), 
2) creates a new evaluation requirement at 40 CFR 51.353(c) that 
instead requires states to conduct program evaluation testing using a 
sound evaluation methodology capable of providing accurate information 
about I/M program effectiveness, such evaluation to begin no later than 
November 30, 1998, 3) amends the requirement that the program 
evaluation test be conducted ``at the time the initial test is due'' to 
clarify that states are not barred from using alternative sample 
gathering methods like roadside pullovers by defining ``the time of 
initial test'' as any time prior to repairs during the inspection cycle 
under consideration, 4) deletes the current conditions on 
Pennsylvania's and Virginia's conditional interim I/M approvals and 
Delaware's conditional approval (40 CFR part 52, subpart NN, 
Sec. 52.2026(a)(2), 40 CFR part 52, subpart V, Sec. 52.2450(b)(2), and 
40 CFR part 52, subpart I, Sec. 52.424(b), respectively) that require 
submission of program evaluation regulations under the existing I/M 
rule, and 5) imposes a new condition on Pennsylvania's, Virginia's, and 
Delaware's I/M approvals that will require them to submit I/M SIP 
revisions which include a requirement to perform a program evaluation 
using a sound evaluation methodology meeting the amended requirements 
of 40 CFR 51.353(c) by November 30, 1998.
    Prior to today's action, the I/M rule required states to test at 
least 0.1 percent of the vehicles subject to inspection in a given year 
using a state administered or monitored IM240 or an EPA-approved 
equivalent METT evaluation methodology. Today's action revises this 
requirement to allow states the option of using an approved, 
alternative, sound methodology for their program evaluation. This 
action also clarifies that states are to start vehicle testing for 
their program evaluation no later than November 30, 1998, and are not 
required to do so coincident with program start up. EPA notes that 
existing requirements for program start up as soon as possible remain 
in place and are not effected in any way by today's program evaluation 
amendments.
    Today's action is in response to the many changes that have 
occurred in the field of I/M since the original rule was promulgated in 
November 1992. Program designs and test types not originally envisioned 
in 1992 are now becoming the options of choice among many states 
required to implement enhanced I/M programs. For example, non-METTs 
like the Acceleration Simulation Mode (ASM) test have been adopted by 
several enhanced I/M states that were originally expected to choose the 
METT-based IM240. These states have subsequently voiced the concern 
that requiring a METT like the IM240 for the purpose of evaluating a 
program using a non-METT as its day-to-day test poses certain practical 
implementation difficulties not experienced in programs that have opted 
to use a METT as the day-to-day test. While these problems are not 
insurmountable, EPA acknowledges the potential, practical benefits of 
adopting a sound evaluation methodology that does not rely on METT. 
Today's action, therefore, introduces the flexibility needed to allow 
states who choose to do so to make the case for alternative evaluation 
methodologies, including those centered on non-METT-based testing. In 
addition to considering state proposals, EPA will also be conducting 
formal reviews of several alternative evaluation methodologies 
presented to it during a stakeholder's meeting held in Ann Arbor, 
Michigan on August 11, 1997, details of which are discussed in the 
``Public Participation'' section of this document. Today's action will 
also better accommodate new advances in analytical methodologies, given 
the speed at which new technology in this field has been shown to 
evolve and mature.
    To ensure that all states have an equal opportunity to take 
advantage of the flexibilities created by today's action, it is 
necessary that EPA also amend certain I/M SIP approval actions 
previously published in the Federal Register in response to the 
National Highway System Designation Act of 1995 (NHSDA) as well as 
those published in response to EPA's own I/M flexibility amendments of 
September 18, 1995 and July 25, 1996. The NHSDA and I/M amendments 
introduced additional flexibility with regard to I/M program design, 
and states that opted to take advantage of this flexibility were 
required to submit new SIPs. In review of these revised I/M SIPs, EPA 
found that many failed to fully address one aspect or another of the I/
M rule, leading the Agency to propose either conditional interim 
approvals (in the case of NHSDA-triggered revisions) or conditional 
approvals in the remaining cases. For example, the Commonwealths of 
Pennsylvania and Virginia failed to fully address the I/M rule's 
program

[[Page 1364]]

evaluation requirements for conducting the IM240 or an equivalent, 
approved METT on 0.1 percent of their in-use fleet. In response to this 
omission, EPA originally placed conditions on the Virginia and 
Pennsylvania interim approval actions, based on commitments made by the 
commonwealths, requiring them to adopt the regulations needed to meet 
the METT-based program evaluation requirement. Since today's action 
broadens the program evaluation requirement to include other sound 
evaluation methodologies, it is also appropriate to withdraw these 
METT-based program evaluation conditions on the interim approval 
notices for Virginia and Pennsylvania. In place of these original 
conditions, today's action imposes new conditions that will require the 
commonwealths instead to submit SIP revisions that meet the more 
flexible requirements of the amended 40 CFR 51.353(c). These new 
conditions are based on new commitments submitted by the states to meet 
the new evaluation requirements. In the case of Delaware, while the 
program evaluation condition did not explicitly require METT-based 
program evaluation, the deadline for meeting that condition falls 
sooner than it would based upon today's amendments. To allow the State 
to take advantage of this deadline extension, it is necessary for EPA 
to also amend the Federal Register document conditionally approving the 
Delaware I/M SIP based upon a new state commitment to meet the new 
program evaluation requirements. All three--Delaware, Virginia, and 
Pennsylvania--must submit revised SIPs meeting the amended evaluation 
methodology requirements by November 30, 1998 in order to meet the new 
conditions imposed by today's action under section 110(k)(4) of the 
Act.
    Of the three above SIP approval notices, only Virginia's originally 
required the Commonwealth to meet its METT-based program evaluation 
condition before EPA could complete today's action. The original 
published deadline for Virginia to meet its program evaluation 
condition was September 15, 1997, which did not reflect the full twelve 
month period available under the statute for meeting such conditions. 
Therefore, in conjunction with the publication of the notice proposing 
today's action, and based upon a commitment by the Commonwealth, EPA 
took an interim final action to extend the deadline for Virginia's 
existing program evaluation condition to May 15, 1998, which 
represented the latest date available prior to finalization of today's 
action. Today's action creates a new deadline of November 30, 1998, in 
keeping with the time extension provided to other states by today's 
action for compliance with the new evaluation requirements promulgated 
today and consistent with Virginia's new commitment to meet the new 
requirements by that date.
    Lastly, it may similarly be necessary for some states to amend 
their currently approved I/M SIPs to take advantage of flexibilities 
provided by today's action. EPA therefore suggests that such states 
review their enhanced I/M SIPs for any language that may conflict with 
today's amendments. Such language will need to be amended and the 
amendment submitted as a SIP revision no later than November 30, 1998, 
in order to take advantage of today's flexibility.

III. Authority

    Authority for the rule change proposed in this document is granted 
to EPA by section 182 of the Clean Air Act as amended (42 U.S.C. 7401, 
et seq.). Authority to conditionally approve a SIP based on a state's 
commitment to revise the SIP by a date certain within one year is 
provided by section 110(k)(4) of the Act.

IV. Public Participation

    Written comments on the September 19, 1997 proposal were received 
from seven sources prior to the close of public comment period on 
October 20, 1997: The Georgia, Missouri, and Wisconsin Departments of 
Natural Resources; the Maryland Department of the Environment; 
Pennsylvania's Department of Transportation and Department of 
Environmental Protection (jointly); the Service Station Dealers of 
America and Allied Trades; and the International Tire and Rubber 
Association. The Missouri and Wisconsin Departments of Natural 
Resources and the Maryland Department of the Environment opposed the 
amendments, while the remainder of the commenters supported the 
proposed amendments, in whole or in part.
    In addition, the Texas Natural Resource Conservation Commision 
(TNRCC) submitted comments one month after the close of public comment 
period, in a letter dated November 20, 1997. While we will not be 
addressing each of TNRCC's comments separately and specifically in this 
rulemaking due to time constraints, EPA does acknowledge their receipt 
and has included them in the docket for this rulemaking. In general, 
TNRCC supported the proposed amendments and reiterated and/or 
reinforced comments made by the other, above commmenters.
    The main issues raised by the commenters are summarized and 
addressed below.

A. Increased Flexibility

    All the commenters supporting changes to the program evaluation 
requirement as well as the other proposed amendments cited the greater 
flexibility provided to states as the primary reason for their support. 
Among these supporters, one stands out: Pennsylvania. Unlike the other 
supporters, Pennsylvania augmented its support of the amendments with 
numerous additional comments suggesting that even greater flexibility 
is still needed. These additional comments will be addressed as 
appropriate, below.

B. METT vs. ``Sound'' Evaluation Method

1. Summary of Proposal
    The proposal removed the I/M rule's requirement that the program 
evaluation testing be performed using either an IM240 or ``any other 
transient, mass emission test procedure approved as equivalent,'' and 
replaced it with the more flexible requirement that such testing be 
conducted using an EPA-approved, ``sound evaluation methodology * * * 
capable of providing accurate information about the overall 
effectiveness of an I/M program.''
2. Summary of Comments
    Commenters opposed to the proposed amendments focused on the test 
type to be used for the program evaluation. These commenters generally 
favored leaving the original requirement for IM240 or an equivalent 
METT unchanged. Most of the opposing commenters cited EPA's original 
reasons for choosing the IM240--its accuracy, its ability to reflect 
real world driving conditions, its correlation to the Federal Test 
Procedure (FTP), and its ability to measure actual mass emissions, as 
opposed to percent concentrations--in support of retaining the 
requirement. The opposing commenters also suggested that METT testing 
was the only way to provide an objective and consistent criterion for 
comparing the effectiveness of state programs, particularly given the 
number and variety of untested program designs being implemented by the 
states, post-NHSDA. One such commenter was also concerned that allowing 
program evaluations based upon potentially less rigorous criteria could 
unfairly penalize those states that opt for METT-based

[[Page 1365]]

program evaluations, by artificially overestimating the benefit of 
decentralized, non-METT-based programs (and therefore underestimating 
those areas' contribution to regional ozone transport problems).
3. Response to Comments
    While EPA agrees that IM240 and equivalent METTs are a cost 
effective, accurate, objective, and consistent method for evaluating 
the program effectiveness of both METT and non-METT-based I/M programs, 
suggesting that only a METT evaluation will suffice is premature. While 
we can assure states that have opted to use IM240 as their day-to-day 
inspection that the IM240 itself will continue as an approved program 
evaluation test method (because it represents a sound evaluation 
technique capable of providing accurate data on the effectiveness of I/
M programs), we cannot now rule out the possibility of acceptable METT 
and non-METT alternatives to the IM240. EPA is in the process of 
reviewing several alternative, non-IM240-based program evaluation 
methodologies that were presented at a stakeholder's meeting held in 
Ann Arbor on August 11, 1997 and at the 13th Annual Mobile Sources/
Clean Air Conference held September 16-19, 1997 in Steamboat Springs, 
Colorado. While many of these methods are cheaper, easier-to-implement 
variations on the METT concept that could be conducted with minimal 
equipment retrofitting in an otherwise decentralized, non-METT setting, 
at least one would allow states to use their existing, non-METT I/M 
program data in the determination of program effectiveness. 
Furthermore, while EPA's resources necessarily limit us in the number 
of alternative methodologies we can evaluate, we remain open to 
reviewing evaluations of additional methodologies conducted by the 
states or other interested parties and submitted to EPA, including non-
METT alternatives. Lastly, while it is still too early to tell which of 
these methods will be deemed approved alternatives, EPA is sensitive to 
the need for both equity and accuracy in whatever candidate 
methodologies are selected for approval. EPA will take special care to 
insure that the benefits of non-METT programs are not overestimated as 
a result of the selected evaluation methodologies.

C. ``Sound'' vs. non-METT Evaluation Method

1. Summary of Proposal
    While the proposed amendment language discussed above removes the 
explicit requirement that the program evaluation test be METT-based--
thereby opening the door to the possibility of non-METT-based 
alternatives--the amendment does not jump to the conclusion that such 
non-METT alternatives actually exist.
2. Summary of Comments
    While Pennsylvania supported the spirit of the proposed amendments, 
the Commonwealth argued that EPA fell short by failing to specify that 
a non-METT program evaluation methodology would, in fact, be found and 
adopted. The Commonwealth argued that the program evaluation test 
should be the same test used for day-to-day testing (i.e., in the case 
of Pennsylvania, the non-METT-based idle and ASM tests). To support 
this claim, Pennsylvania cited the CAA's requirement that the biennial 
program evaluation be ``based on data collected during the inspection 
and repair of vehicles'' (emphasis added). Pennsylvania also quoted 
Conference Report 105-297 accompanying H.R. 2158, in support of its 
claim that Congress intended to bar EPA from mandating the use of IM240 
for any purpose, including program evaluation. Furthermore, citing the 
same conference report, Pennsylvania indicated its belief that EPA was 
specifically directed by Congress to develop (not merely consider) a 
non-METT program evaluation test. In particular, Pennsylvania objected 
to the proposal's claim that it introduced ``the flexibility needed to 
allow states who choose to do so to make the case for alternative 
evaluation methodologies, including those centered on non-METT based 
testing.'' Specifically, Pennsylvania claimed that it is ``EPA's 
statutory obligation to develop a non-METT evaluation method; it is not 
the states' obligation to 'make the case' for one.''
3. Response to Comments
    As indicated in the previous response, EPA is still in the process 
of evaluating several alternative program evaluation methods, at least 
one of which would be consistent with Pennsylvania's request to use 
routine test data as the basis for program evaluation. Also, the 
intention of the ``make the case'' statement quoted by Pennsylvania was 
not to shift the obligation for test review and evaluation to the 
states. Rather, as previously stated, EPA's resources necessarily limit 
us in the number of alternative methodologies we can evaluate, and 
while a non-METT-based alternative is being considered by EPA, we 
remain open to reviewing evaluations of additional methodologies 
conducted by the states or other interested parties. Further, EPA does 
not view comments in legislative history on unrelated legislation to 
impose any new requirements on EPA with respect to I/M program 
evaluations. The CAA gives EPA the flexibility to establish appropriate 
program evaluation methodologies and EPA is properly exercising that 
discretion. Under these amended requirements, EPA is no longer 
requiring use of IM240 and has specifically opened the door so that 
non-METT-based alternatives may be considered. Finally, EPA does not 
believe that the CAA requirement to base program evaluation on data 
collected during inspection places any limitation on the test type to 
be used to conduct such evaluations. Whatever test is to be used, EPA 
agrees it will be conducted at the time of initial testing as defined 
in today's action.

D. FTP Correlation

1. Summary of Proposal
    The proposal did not address the criteria by which candidate 
alternative program evaluation methodologies would be judged, other 
than specifying that the method would be ``sound'' and ``capable of 
providing accurate information about the overall effectiveness of an I/
M program.''
2. Summary of Comments
    Though correlation to the FTP was not stipulated as a criterion for 
evaluating alternative program evaluation methodologies in the proposal 
submitted for public comment, several commenters raised FTP correlation 
as an issue. Those commenters opposed to the proposed amendments argued 
for the retention of IM240 because of the high degree to which that 
test correlates with the test used to certify new vehicles to the 
applicable emission standards (i.e., the FTP). One of the opposing 
commenters--Maryland--while not ruling out the possibility of valid 
alternatives, specifically requested that any approved alternative 
methods be ``no less rigorous or reliable than the IM240 METT.'' 
Pennsylvania, on the other hand, objected to using correlation to the 
FTP as a criterion for determining the approvability of alternative 
program evaluation methods. The Commonwealth also suggested that, 
should EPA choose correlation to the FTP as the primary criterion for 
establishing an alternative method's approvability, then it is EPA's 
responsibility to make non-METTs like the ASM and idle test correlate 
better to the FTP. This last comment was in

[[Page 1366]]

response to the Commonwealth's reference to previous EPA statements 
regarding the very poor correlation to the FTP exhibited by non-METTs 
like the ASM and idle tests.
3. Response to Comments
    While EPA believes that a high degree of correlation to the FTP is 
a reliable indicator of a test's ability to accurately measure real 
world in-use vehicle emissions, we are not prepared to rule out the 
possibility that other, surrogate measurements could provide equally 
valid indicators of program effectiveness. EPA will explore other 
potential measures in conjunction with development and analysis of 
alternative evaluation techniques. Nevertheless, EPA disagrees with the 
suggestion that should FTP correlation be found to be the only reliable 
indicator of an evaluation method's acceptability that EPA therefore is 
obligated to somehow improve the degree to which non-METTs correlate to 
the FTP. While it is possible to increase correlation to the FTP by 
starting with the same basic equipment used to perform a non-METT like 
the ASM and either changing the test procedure and/or retrofitting the 
equipment to gather variables like exhaust volume, the resultant test 
is no longer an ASM by definition, but likely something approximating a 
METT. Trying to change the correlation of a given test without 
fundamentally changing the underlying nature of the test itself is a 
logical impossibility. Furthermore, strategies such as tightening 
cutpoints--which states have used historically to increase emission 
reductions by increasing the failure rate for a chosen test--do not 
improve a test's correlation to the FTP, which is based on actual 
emission measurements and not relative failure rate.

E. SIP Submission Deadlines

1. Summary of Proposal
    The proposal revised the conditional approvals for Pennsylvania, 
Virginia, and Delaware to require the submission of SIP revisions 
addressing the revised program evaluation requirements by November 30, 
1998. The proposal also set the date by which program evaluation 
testing is to begin for all enhanced I/M programs at no later than 
November 30, 1998. The proposal did not address which alternative 
program evaluation tests would be reviewed nor when guidance on 
approved alternatives would be issued.
2. Summary of Comments
    Both Maryland and Pennsylvania raised concerns regarding whether or 
not EPA would be able to complete its review of alternative program 
evaluation methodologies in time for states to meet the November 30, 
1998 deadline. While Pennsylvania commented that it ``agrees that 
states need to start vehicle testing for their program evaluation no 
later than November 30, 1998,'' it also requested that states be given 
until November 30, 2000 to submit revised SIPs. Pennsylvania also 
requested that the requirement that the revised SIP include an 
``approved'' program evaluation methodology be deleted, suggesting that 
such a requirement would either circumvent the public notice-and-
comment rulemaking process SIP approvals are usually subjected to, or 
require states to submit SIP revisions substantially earlier than 
November 30, 1998 to allow EPA time to process and approve the 
submission by the November 30, 1998 deadline.
3. Response to Comments
    EPA has currently identified four alternative program evaluation 
methodologies which will be the subject of further investigation in the 
coming months. The methods to be reviewed are: 1) The V-MAS method, a 
low cost method for measuring exhaust flow for the purpose of 
converting concentration measurements into mass emissions measurements; 
2) The California Analytical Bench method, a low cost analyzer bench 
that uses the same type of analyzers as the IM240; 3) The Sierra 
Research method, a method that relies on state I/M program data, 
modeling data, and correlation to a base I/M program with a known 
effectiveness level; and 4) The RSD method, which relies on remote 
sensing (RSD) data. EPA projects the following schedule for its program 
evaluation methodology review, including milestones already completed:

    August 11, 1997--EPA hosted a stakeholder's meeting for states, 
contractors, vendors, and all interested parties for the purpose of 
seeking input regarding which alternative methods to investigate. This 
milestone has been completed.
    September 15, 1997--EPA selected the candidate methodologies for 
further investigation. This milestone has also been completed.
    May 31, 1998--The testing of candidate methodologies will be 
completed.
    October 15, 1998--EPA's analysis of the testing results will be 
completed.
    October 31, 1998--EPA will release a policy memo and guidance on 
approved program evaluation methodologies.
    While a review of the above schedule initially suggests that states 
hoping to meet a November 30, 1998 deadline will have only one month in 
which to prepare and submit their SIP revisions, such a conclusion 
assumes that states can take no relevant action prior to the release of 
official EPA guidance on alternative methods. In fact, many elements of 
the necessary SIP revision are not test-dependent and can be addressed 
well prior to finalization of EPA guidance. Furthermore, while final 
guidance may not be released until October 31, 1998, the direction of 
the investigation should be clear well before that deadline, and EPA 
will keep all interested parties informed of our progress as the review 
process moves forward. Also, it should be pointed out again that 
today's action does not bind any state to change whatever course it may 
have been on prior to the introduction of this additional flexibility. 
States that choose to make use of this additional flexibility must 
determine for themselves the feasibility of such a decision within the 
context of their local needs and competing resource demands. EPA does 
not see any reason to extend compliance beyond November 1998.
    Concerning Pennsylvania's request that EPA delete the requirement 
that the evaluation method included in the SIP revision be 
``approved,'' EPA declines this request. Contrary to the Commonwealth's 
expressed concern, ``approved'' as it is used in this context does not 
mean that the SIP revision itself has to be somehow pre-approved prior 
to submission (or prior to November 30, 1998). Rather, ``approved'' 
simply refers to the program evaluation test methodology included in 
the submission. The approval of alternative program evaluation 
methodologies is the goal of the investigation discussed earlier in 
this response. The guidance scheduled for release no later than October 
31, 1998 will indicate which methods are ``approved'' in this sense. 
EPA wishes to retain the ``approved'' language in the rule merely to 
indicate that states may not do I/M program evaluations with 
methodologies that EPA has not found to be acceptable. EPA will still 
complete notice-and-comment rulemaking on any SIP submission containing 
program evaluation methodology revisions once it is submitted.

F. Need for New State Regulations

1. Summary of Proposal
    The proposal revised the program evaluation conditions on the 
Pennsylvania and Virginia conditional interim I/M SIP approvals to 
require the submission of revised state I/M program

[[Page 1367]]

evaluation regulations by November 30, 1998, based upon commitments 
from the commonwealths.
2. Summary of Comments
    Pennsylvania commented that its existing state I/M program 
evaluation regulations are sufficiently broad as to meet the new 
general program evaluation requirements without further revision. The 
Commonwealth also suggested that the specific details necessary as part 
of a SIP revision to address implementation of the revised program 
evaluation requirements would be provided by EPA guidance, implying 
that perhaps no SIP revision would be required to implement them 
(though this conclusion was not stated explicitly).
3. Response to Comments
    EPA agrees that the Commonwealth's standing regulation, previously 
approved into the Pennsylvania I/M SIP, is broad enough to meet the 
revised general program evaluation requirements and has revised that 
portion of today's action to reflect this. This said, EPA cautions 
against jumping to the conclusion that the detail provided in future 
EPA guidance will satisfy the detailed program description requirements 
necessary for an approvable SIP revision addressing these requirements. 
EPA guidance, by necessity, must be general and applicable to a wide 
range of program possibilities. It will likely include options that 
states will need to select from and tailor to their local needs. EPA 
guidance will not be so limited and prescriptive as to obviate the need 
for separate SIP submissions from the states to implement alternative 
program evaluation methodologies. Thus, although Pennsylvania will 
likely not need new regulations, EPA believes that it will need a new 
SIP revision to address today's amended program evaluation 
requirements.

G. State Monitoring

1. Summary of Proposal
    The proposal requires that the sample of vehicles selected for 
program evaluation testing receive a program evaluation test that is 
either ``administered or monitored'' by the state. This requirement was 
not introduced or revised as part of the proposed amendment, and has 
been a part of I/M requirements since publication of the 1992 rule.
2. Summary of Comments
    Pennsylvania objected to the requirement that the program 
evaluation test be administered or monitored by the state, indicating 
that it ``is not in the 'business' of emissions testing.'' In 
particular, the Commonwealth objected to the notion of having to invest 
in the purchase of any testing equipment whatsoever for the purpose of 
evaluating program effectiveness. Instead, Pennsylvania indicated its 
preference to ``monitor the program through computer programming and 
software,'' with the possibility of random station visits at its 
discretion. The Commonwealth concluded by suggesting that it would not 
object to this requirement if it is subsequently determined that states 
can, in fact, use their day-to-day I/M tests as the program evaluation 
test.
3. Response to Comments
    As explained elsewhere, EPA is still in the process of evaluating 
possible program evaluation methodologies, at least one of which would 
allow states to use their day-to-day I/M test as the program evaluation 
test. Regardless of the conclusions of the program evaluation 
investigation, however, EPA does not believe that removing the 
requirement for state administration or monitoring of the program 
evaluation test is justified. The requirement is intended to ensure 
quality assurance and quality control of the subset of vehicle testing 
data devoted to program evaluation. Given the small size of the sample 
required (i.e., 0.1%) it is essential that the objectivity and quality 
of the data under consideration not be questioned. EPA believes this 
can only be accomplished by state operated or contracted program 
evaluations. Thus, EPA believes the requirement that program evaluation 
tests be administered or monitored by the state should remain no matter 
what test type is selected.

V. 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.

VI. Administrative Requirements

A. Administrative Designation

    It has been determined that this amendment to the I/M rule is not a 
significant regulatory action under the terms of Executive Order 12866 
and are therefore not subject to OMB review. Any impacts associated 
with these revisions do not constitute additional burdens when compared 
to the existing I/M requirements published in the Federal Register on 
November 5, 1992 (57 FR 52950) as amended. Nor do the amendments create 
an annual effect on the economy of $100 million or more or otherwise 
adversely affect the economy or the environment. It is not inconsistent 
with nor does it interfere with actions by other agencies. It does not 
alter budgetary impacts of entitlements or other programs, and it does 
not raise any new or unusual legal or policy issues.

B. Reporting and Recordkeeping Requirement

    There are no information requirements in this 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 this rulemaking do not meet the 
definition of a small government jurisdiction, that is, ``governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts, with a population of less than 50,000.'' The 
enhanced I/M requirements only apply to urbanized areas with population 
in excess of either 100,000 or 200,000 depending on location. 
Furthermore, the impact created by this action does not increase the 
pre-existing burden of the existing rule 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 where the estimated costs to State, local, or tribal 
governments, or to the private sector, will be $100 million or more. 
Under Sec. 205, EPA must select the most cost-effective and least 
burdensome alternative that achieves the objective of the rule and is 
consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly impacted by the rule. To the extent that the rules 
being

[[Page 1368]]

finalized by this action would impose any mandate at all as defined in 
Sec. 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 I/M rule 
which this action amends.

E. Small Business Regulatory Enforcement Fairness Act

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. The rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

F. Petition 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 March 10, 1998.
    Filing a petition for reconsideration by the Administrator of this 
final rule to amend the program evaluation requirements of the I/M rule 
does not affect the finality of this rule for the purpose 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 rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2) of the 
Clean Air Act).

List of Subjects

40 CFR Part 51

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

40 CFR Part 52

    Air pollution control, Carbon monoxide.

    Dated: December 29, 1997.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, parts 51 and 52 of title 
40, chapter I of the Code of Federal Regulations is amended to read as 
follows:

PART 51--[AMENDED]

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

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

    2. Section 51.353 is amended by revising paragraph (c)(3) and 
(c)(4) to read as follows:


Sec. 51.353  Network type and program evaluation.

* * * * *
    (c) * * *
    (3) The evaluation program shall consist, at a minimum, of those 
items described in paragraph (b)(1) of this section and program 
evaluation data using a sound evaluation methodology, as approved by 
EPA, and evaporative system checks, specified in Sec. 51.357(a)(9) and 
(10) of this subpart, for model years subject to those evaporative 
system test procedures. The test data shall be obtained from a 
representative, random sample, taken at the time of initial inspection 
(before repair) on a minimum of 0.1 percent of the vehicles subject to 
inspection in a given year. Such vehicles shall receive a state 
administered or monitored test, as specified in this paragraph (c)(3), 
prior to the performance of I/M-triggered repairs during the inspection 
cycle under consideration.
    (4) The program evaluation test data shall be submitted to EPA and 
shall be capable of providing accurate information about the overall 
effectiveness of an I/M program, such evaluation to begin no later than 
November 30, 1998.
* * * * *

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

    Authority:42 U.S.C. 7401 et seq.

    2. Section 52.2026 is amended by revising paragraph (a)(2) to read 
as follows:


Sec. 52.2026  Conditional approval.

* * * * *
    (a) * * *
    (2) The Commonwealth must submit to EPA as a SIP amendment, by 
November 30, 1998, the final Pennsylvania I/M program evaluation plan 
requiring an approved alternative sound evaluation methodology to be 
performed on a minimum of 0.1 percent of the subject fleet each year as 
per 40 CFR 51.353(c)(3) and which meets the program evaluation elements 
as specified in 40 CFR 51.353(c).
* * * * *
    3. Section 52.2450 is amended by revising paragraph (b)(2) to read 
as follows:


Sec. 52.2450  Conditional approval.

* * * * *
    (b) * * *
    (2) The Commonwealth must submit to EPA as a SIP amendment, by 
November 30, 1998, the final Virginia I/M program evaluation regulation 
requiring an approved alternative sound evaluation methodology to be 
performed on a minimum of 0.1 percent of the subject fleet each year as 
per 40 CFR 51.353(c)(3) and which meets the program evaluation elements 
as specified in 40 CFR 51.353(c).
* * * *
    4. Section 52.424 is amended by revising paragraph (b) introductory 
text to read as follows:


Sec. 52.424  Conditional approval.

* * * * *
    (b) The State of Delaware's February 17, 1995 submittal for an 
enhanced motor vehicle inspection and maintenance (I/M) program, and 
the November 30, 1995 submittal of the performance standard evaluation 
of the low enhanced program, is conditionally approved based on certain 
contingencies.The following conditions must be addressed in a revised 
SIP submission. Along with the conditions listed is a separate detailed 
I/M checklist explaining what is required to fully remedy the 
deficiencies found in the proposed notice of conditional approval. This 
checklist is found in the Technical Support Document (TSD), located in 
the docket of this rulemaking, that was prepared in support of the 
proposed conditional I/M rulemaking for Delaware. This checklist and 
Technical Support Document are available at the Air, Radiation, and 
Toxics Division, 841 Chestnut Bldg., Philadelphia, PA 19107, telephone 
(215) 566-2183. By no later than one year from June 18, 1997, Delaware 
must submit a revised SIP that meets the following conditions for 
approvability, with the exception of condition item in paragraph (b)(3) 
of this section which addresses I/M program evaluation requirements. 
Condition in paragraph (b)(3) of this section must be met by November 
30, 1998, in keeping with the amended requirements of 40 CFR 51.353.
* * * * *
[FR Doc. 98-551 Filed 1-8-98; 8:45 am]
BILLING CODE 6560-50-F



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